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Is Abrogation Of Article 370 Unconstitutional

Introduction to Article 370

On October 17, 1949, Article 370 was included in the Constitution of India. It exempted Jammu-Kashmir from the Indian Constitution (except Article 370 and Article 1) and gave it the power to be an autonomous state. Under this provision everything other than for defense, foreign affairs, communications and few other matters specified in the Instrument of Accession (IOA) the center needed concurrence of the state government for implementing any law.

Article 370 states that Article 1 and Article 370 shall, and that Article 238 shall not apply to Jammu and Kashmir, also it states that other provisions of Indian Constitution would apply to the state subject to such exceptions and modifications that President may specify through an order. It also states that President may modify or nullify Article 370 anytime he wants but this should be done only in recommendation of Jammu and Kashmir Constitutional Assembly .

The Abrogation

On 5th August 2019 Union Home Minister Amit Shah announced in Rajya Sabha that Government of India had officially nullified Article 370 of Constitution of India, which granted special status to State of Jammu and Kashmir. Shah introduced two bills in the Rajya Sabha that necessitated revoking the special status guaranteed to the state. In addition to the bills—the Jammu and Kashmir Reorganisation Bill, 2019 and the Jammu and Kashmir Reservation (2nd Amendment) Bill, 2019-Shah also brandished a presidential order, dated the same day, which extended all the provisions of the Constitution to the state, defanging Article 370.

Both bills passed in the house.[1] The Presidential Order of Mr. Ramnath Kovind stated that all the provisions of the Indian Constitution will now apply on State of Jammu and Kashmir, further is also stated that Constituent Assembly in Article 370 (3) shall be read as Legislative Assembly.

By these orders the separate constitution of State of Jammu and Kashmir will cease to be in operation, the Ranbir Penal Code will also give away to Indian Penal Code, And also Article 35A which makes a distinction between permanent residents of J&K with outsiders will also cease to immediate effect. Kashmiri women who marry a non-Kashmir would also no longer lose their right of inheritance.

Constitutionality

An amendment to constitution can only be made by virtue of Article 368 by 2/3rd majority of the Parliament present and voting, but in case of Article 370(1), it gives the power to the President of India that nullify the article anytime but only could have done in concurrence with the recommendation of State Government of Jammu and Kashmir.

In the present situation the state of J&K has not had a government for months, so the order was passed in consultation with the Governor of the State, and as per Article 155 of Constitution of India, the Governor of a state is appointed by President of India, and it can be said that Governor of a State is representative of the Union Government, hereby the Union Government has consulted itself, violating the principles of Article 370(1).

Article 367 in the Constitution of India gives the power, to interpret the Constitution, this article was also amended and the Presidential Order inserts a new subclause into it, i.e. For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir. This added in proviso to clause 3 of Article 370 of the Constitution, that the expressionConstituent Assembly of the state would now be read as Legislative Assembly of the state.

By this the President uses his power under 370(1) to amend a provision of the Constitution (Article 367) which, in turn, amends Article 370(3), and replaces the Constituent Assembly’s concurrence for any further amendments to Article 370. And this, in turn, becomes the trigger for the statutory resolution, that recommends to the President the removal of (most of) Article 370 (as the Constituent Assembly’s concurrence is no longer required).

By this new interpretation to Article 370(3), the President could abrogate Article 370 in recommendation with legislative assembly, as J&K is now a Union Territory and is under Presidents rule, presently not having any legislative assembly, it fell upon the parliament to make recommendation for the newly modified article, and then union Home Minister issued a recommendation to the President to abrogate Article 370.

Furthermore as the bill was introduced, entire state of Jammu and Kashmir was turned into a public jail, the political leaders of the state were house arrested, the general public of the state was deprived of their, fundamental rights, section 144 of Criminal Procedure Code, which bars the assembly of not more than 5 people at a place where the said restriction is imposed.

This was a clear violation of fundamental right to life and liberty of, the people of Jammu and Kashmir, the people of the state had no say in the decision about their state, and it was taken cleverly by the union government bypassing the various restrictions guaranteed under constitution of India. Suspension of Telecommunication services, Tv services, Internet Services, further hampered the fundamental right to freedom of speech and expression.

Present Situation
Presently, suspension of internet services is continued in State, but calling services have started in lower parts of the state i.e. Jammu, Udhampur, Lakhanpur etc. But in Srinagar, suspension of Telecommunication services is continued, still people are advised their not to move freely, as there is a major security threat, a large amount of troops are sent at Srinagar so that no mis happening takes place there.

Talking about the opinion of the people, their some are neutral, they say we think our lives would not be affected, everything would be same as before, whereas some are happy, they say  this decision would increase revenue of the state, would give employment opportunities, to the state unemployed youth, some also have an opinion that, firstly government should think about the development in other states, how can they promise us the employment opportunities, as in various metro cities where the government of India is ruling on its own from the years after independence, have such high unemployment rate, they are also not wholly developed, then how would something be different for the state of Jammu and Kashmir.

There are a lot of questions in minds of people, about when the situation would be normal in Jammu and Kashmir, and what would be their future, would it be bright, or the darkness would prevail.

Conclusion
The decision on article 370, clearly is a landmark decision, but however its implications and outcomes are still unknown, would it settle the long ridden conflict between the people of Jammu and Kashmir and government of India, about they being feeling not a part of the country, or would solve the various problems that hampered the development of the state is not clear.

But it can be said that, the introduction of the bill, and its implementation could have been done in a better way, first of all the constitution provisions should not have been bypassed.

State of Jammu & Kashmir, its people, its political leaders should have been consulted that they even want this or not. And lastly , the fundamental rights of the people of the state should not have violated to such an extent.   

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