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Dismantling Article 370: Constitution Crossroads, Judicial Interpretation And Echoes Of History Unveiled

The Supreme Court (SC) on December 11, 2023, upheld the constitutional validity of the order of the Union Government to repeal the special status of Jammu and Kashmir under Article 370. Although a contentious issue, the judgment was passed in a 5-0 unanimous verdict.

Some people term it as a political decision and some don't. The Kashmir issue has been going on for decades and finally, this verdict may seem an end to the regular conflicts. In the present article, we will dive into the history of the state of Jammu and Kashmir analyzing its past. Then, the article will further elaborate upon the arguments given by the advocates in the SC and some issues related to the same. At last, the article will highlight some positive aspects of the judgment and conclude.

Jammu and Kashmir, named after an ascetic Kashyap, who, as believed by historians, reclaimed the land from a vast lake, has been a turbulent territory of India since time immemorial. Earlier known as Kashyapamar, the state has been subject to violence and arbitrary rulers since its formation. The Ashoka rulers, who ruled in the 3rd century BCE brought vast prosperity and an advent of Buddhism in the state.

Then, the state was annexed by Muslim rulers of the Shah Mir Dynasty, and for the next five centuries, Muslim monarchs ruled the territory including the Mughal Empire which ruled from 1586 to 1751. The first ruler of Kashmir, Rinchan Shah, also known by his titular name Sadr-ud-Din Shah was the founder of the Sultanate of Jammu and Kashmir.

After the Muslim rule, Kashmir was annexed by the Sikh rulers in 1814, established by Maharaja Ranjit Singh. These rulers ruled over Kashmir till India came under the British Raj after which it was considered as a part of the 565 princely states of India. The Sikh rulers were considered one of the most exploitative and oppressive rulers that Jammu and Kashmir had witnessed until the British rule.

Maharaja Hari Singh, who was the last ruler of Jammu and Kashmir before independence wanted the state of Jammu and Kashmir to remain an autonomous region but, soon after Independence the state was annexed by military troops and insurgents from Pakistan on its northern border due to which the Maharaja fled from Jammu and Kashmir and signed an Instrument of Accession to the territory of India which declared the state to be a part of this country. According to the terms of this document, India would exercise its power in the external affairs, communications, and defense of the state.

After the signing of the Instrument Of Accession, the Delhi Agreement was signed between the Prime Ministers of India and Jammu and Kashmir which gave a special status to the state under the constitution by establishing Article 370 (drafted by N. Gopalaswami Ayyanagar) in 1951. The state's constitution came into force on 26th January 1957 under which elections to the state assembly were held for the first time. Article 35A passed through a Presidential order in 1954, defined the permanent members of the state, and prevented people from other states from buying properties inside the state of Jammu and Kashmir.

Events Leading To The Abrogation
The abrogation of Article 370 took place in August 2019 and nationwide protests erupted resulting in multiple attacks on security forces and police stations. There are many incidents which led to the abrogation of this provision.

Insurgency: Militant organizations which were disillusioned by the lack of progress and development began to emerge in the region in the 1980s leading to an increase in attacks on civilians as well as the people visiting the state. With the BJP winning the elections, their insecurity also increased due to Kashmir being a Muslim majority and the BJP being a promoter of Hinduism or 'Hindutva'.

By the early 1990s, the militancy had evolved into an insurgency, with India engaging in a crackdown campaign. Also, the Kargil area of western Ladakh has been a target for many counter-insurgency operations and a contentious area between both India and Pakistan.

In May 1999, Pakistan increased its artillery shelling in the region. The Indian army also discovered that militants had infiltrated the Indian zone from Pakistan and taken positions in the Kargil area. Due to this, intense fighting ensued resulting in the Kargil War in which many combatants died from both the countries.

State strategy: The state's focus on counter-insurgency operations and several crackdowns on civilians, imposition of arbitrary rules and regulations, and regular harassment of citizens belonging to the state led to sustaining militancy and delegitimization of democratic politics.

People wanting to have a good quality of life, democratic elections, and have their grievances resolved were met with regular harassment by the army personnel and monitoring of their activities along with regular internet bans and gunfire which also led to the dissatisfaction of the people of the state with the government.

On February 14, 2019, the largest ever suicide bomb was blasted near a police station which killed nearly 40 security personnel from the Indian Central Reserve Police Force, the highest number of security personnel killed in a militant attack in three decades.

Quasi-violence - The period between 2013 and 2019 was marked by mass quasi-violent resistance, increasing state control, and an anti-institutional alternative to democratic politics, which all posed significant challenges to the government's counterinsurgency strategy.

Quasi-violence is characterized by non-lethal attacks by the citizens to push for reforms and considerable publicity. These attacks are asymmetric which results in them appearing as more of a nuisance to the security personnel than a threat. It involves confrontation through methods such as stone pelting and public protests which are rather violent, and capitalizing on overreactions that might delegitimize the state. All these factors collectively contributed to the abrogation of Article 370.

Arguments Related To Article 370
Abrogation of Article 370 may be termed as a politically correct decision because in one strike all the provisions of the constitution will apply in the same manner to Jammu and Kashmir as to the rest of India and the basic doctrine of equality would be reached. But the judicial interpretation which acted as a path to prove the decision constitutional sets a wrong precedent.

The judicial interpretation of the article is the Achilles heel in the judgment. It might have dire consequences on the constitution and federation of India. Firstly, the interpretation of the word 'constituent assembly' as 'legislative assembly' sets a wrong precedent. Secondly, the court supported the mighty power claimed during the presidential rule to convert a State into a Union Territory. Thirdly, the courts were silent on the question of whether a Parliament can change a State into a Union Territory.
  1. The President in order 272 para 2 has used the word 'legislative assembly' instead of 'constituent assembly' which resulted in the addition of a sub-clause to Article 367. This interpretation can be very disastrous which was also an observation made by the court in this judgment, but still, the court held this order as constitutional.

    This shows the gigantic power the president has under Art. 356 of the constitution. In the SBI case, the judges held that the Art. 370 can be rescinded only by the consent of the Constituent Assembly.

    The main object of putting the word 'constituent assembly' in Article 370(3) was to have people's representation. But at the time of abrogation, there was no such assembly in existence. In the order passed by the President, the word legislative assembly has been used concomitantly.

    Also, instead of taking into account the people's recommendations, the recommendation of the governor was taken who is appointed by the President of India. People's consideration is very necessary before making irreversible changes in any area. The government by not giving heed to people's opinions has given a blow to democracy and federalism.
  2. The court's opinion is that the recommendation of the state is not necessary, and is limited to a recommendation, which the government is not obligated to follow. This issue is a direct wound to the democracy and the federalism of the state. The court's opinion sets a perilous precedent as the government with a majority in both houses of the Parliament can make undue use of it. For passing such an order in the upper house more than 50% of the Quorum should be in favor, which is not a big deal for a party having the majority.

    The court's observation put forward a notion that the opinion of the state is just for the namesake, and the decision will depend on the whims of the government in the majority. In S R Bomai's case the ambit of Art. 356 was compressed because they were aware of the possible threats it could create in the future if it were not curbed. SC through this decision has again widened the ambit of Article 356.
  3. The vague reply from the government's side to the question of restoration of statehood and the court having no objection to it raises some serious concerns. The Supreme Court then directed the Election Commission (EC) to conduct elections in the area of Jammu and Kashmir and told the government to restore the statehood of Jammu and Kashmir but the question of the authority of the Parliament to convert the state into a UT was left unanswered. Art. 3 renders no power to convert a state into UT and assurance by the government of restoration of statehood cannot act as an ointment to the wound.

Positive Impacts
The abrogation and judgment in favor of abrogation have also acted as a green flag for positive changes. The removal of Articles 35A and Article 370 adds a pillar to our constitution. The principle of equality is one of the pivotal principles of the constitution and this abrogation has strengthened it.

Through this judgment. People from all over India can purchase property in the area of Jammu and Kashmir, thanks to the removal of Article 35A. Keeping the people of Jammu and Kashmir on the same pedestal as people of other states will help in the development of that region and consequently development of the nation at large.

Looking at a positive aspect of judgment, the Supreme Court in a 4:1 ratio had decided that Jammu and Kashmir had lost their sovereignty when they signed the Instrument of Accession. The court had relied on the proclamation issued by Yuvraj Karan Singh in 1949 and held that Jammu and Kashmir lost their sovereignty after it.

By this decision, the foundations of sovereignty have been maintained. The SC also stated that Article 370 was a temporary provision and not a permanent one. The democratic conduction of elections in the state is a need of the hour for Jammu and Kashmir, which was also stressed by the court.

As every coin has two side sides, the same is the case with this judgment. Abrogation of Article 370 may be termed as a politically correct decision but the judicial path used by the courts to prove it correct has laid some wrongful precedents. Even the interpretations used by the government to implement the order are in contravention of the accepted procedure.

The government should ensure that elections are conducted as soon as possible and statehood should be given to Jammu and Kashmir. The impacts of this judgment will be deciphered in the future.

Award Winning Article Is Written By: Mr.Om Chandak & Ms.Pragya Mehta
Awarded certificate of Excellence
Authentication No: JN403145060161-31-0124

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