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The Big Question on 370

It was the beautiful morning of August month in India with soothing cold breeze flowing with some drizzling, the nation was busy in its routine as it was a Monday morning, with Delhi Metro full of office going people, roads of full of usual traffic, shops of Connaught Place opening up, cleaning team on their work to keep the promise of PM Narendra Modi of Swachh Bharat Mission, and then came the Presidential Order of Hon'ble President Ram Nath Kovind that for a while stopped the whole nation in front of their news screens.

The nation eyes couldn't believe that this was happening for real, and before they could have interpreted well, the Parliament began it's session of the day with Home Minister Amit Shah addressing the house and introduced two resolutions and before any thing more could have thought about it.

The BJP govt. that came into power of second time in a row last month have completed their biggest promise mentioned in their 2019 Lok Sabha elections' manifesto. The date 5th August 2019 got inscribed in the Great Indian Political History. For some it was a moment of celebration as just 10days before the 73rd Independence Day India got integrated completely, while for some it was a tribute to Late Shyama Prasad Mukherjee for his dream of integrated Jammu & Kashmir to India.
  • But What was it?
  • Why the whole nation stopped all of a sudden in front of the News Channel?
  • Was it a Cricket World cup win for India?
  • Was it another Demonetization?
  • Was it another Surgical Strike?

I would say, it was a Surgical Strike but not on any battlefield this time in the Political Arena of the nation. This was a strike on all those mistakes that the government did and could not recover it for Kashmir's future. This was a strike on all those groups provoking the innocents of Kashmir to be stone-pelters and on those pelters too. This was a strike on the neighbouring nation as well who were busy in buying the loyalty of Indians living in Jammu & Kashmir. This was a strike on the revocation Article 370 and 35A.

To understand all the What, Why, How on this let us start it from the beginning;

The August 1947

India was on the edge of independence from the British Colonisers, who ruled over them for almost 200 years, after a long freedom struggle. There were people like Gandhi who wanted India to be one integrated nation with no bias at all, but there were people like Jinnah too who were furious in getting a separate nation for Muslims – “Pakistan”, which was given to them in the end.

India as received by the then Government of India from the British was a territory which had almost 565 princely states spread across and uniting them all to make One single nation – India, it was a task almost impossible as for it to be done India needed to have someone like the way Italy had Giuseppe Garibaldi or Germany had Otto Von Bismarck but who knew India did have that gem with her, He was Sardar Vallabh Bhai Patel.

Now, for this unification task Sardar (then Home Minister, Deputy Prime Minister, President In-charge of Presidency Offices) worked with civil servant V.P. Menon ( Secretary in-charge of Presidency Offices) they were able to manage to get almost all the Presidencies under the reign of India, the exception were Bhopal, Hyderabad, Jammu & Kashmir, Junagarh, Kochi & Travancore.

Out of these except for Hyderabad, Jammu & Kashmir and Junagarh all were ready to merge in India. As the presidencies had three option either to join in India or with Pakistan or remain an independent state, so Hyderabad and Junagarh were in the way to be a part of Pakistan and J&K signed a stand-still agreement with Pakistan but in later year both of Hyderabad and Junagarh were made a part of India only.

On the left of India, Pakistan and especially Jinnah was wriggling to get more and more land, they also sent their navy to Lakshadweep Islands to conquer it but India had already set-up their navy before knowing that Pakistan will come for it. The level of eagerness Pakistan had for J&K was even more and since the King of J&K had taken the status of Stand-still it got even more difficult to tolerate them being independent and not being part of their nation.

The status of Kashmir

Jinnah was not able to hold his patience for long and in the eagerness he took a step which is considered to be the biggest game changer in the relationship of India & Pakistan, on 20th October 1947 a troop of 10,000 armed Tribal Kashmiri Army, an un-official group from Waziristan trained by the Pakistani Army General Akbar Khan to attack on Kashmir, left for Srinagar, capital of Jammu & Kashmir under King Hari Singh, in its comparison Hari Singh's army was very small.

His army's Commander-in-Chief Rajendra Singh informed this to the King and he was confident that nothing will happen but as they got the news of the Tribal Army reaching Uri sector, Hari Singh fled away to Jammu and sought help of India to save his state from the attack.

Nehru in this regard was happy to provide help but what stopped him was Lord Mountbatten and Sardar Patel as they were of the view that Pakistan is attacking Kashmir and India can not help them as they are not part of Indian territory till now J&K was an independent state and supporting them would mean India declaring an International War within 2 months of its independence.

They called it for a discussion with Hari Singh for which V.P. Menon went to Jammu and discussed the issue with Hari Singh and his states PM Mehar Chand Mahajan after some meetings they agreed to sign on the Instrument of Accession (IoA), it has to be noted here that the Instrument of Accession signed by J&K was exactly the same as it was signed by the rest 564 presidencies there were no difference at all in the terms and conditions to it, which happened when the Tribal Army was almost on the border of Srinagar on the night on 26th October 1947 and then after mid-night Lord Mountbatten also signed the document i.e. on 27th October 1947.

Immediately after this the Indian Army now flew for Srinagar Airport form the Safdarjung Base. As an extra condition to provide support Nehru also got Sheikh Abdulla released from the Srinagar prison under the order of Hari Singh. Sheikh Abdulla proved to be of great help to the Indian Army during that time as he and his party's (National Conference) members helped the residents to evacuate form the war area.

Jinnah was not able to accept the accession of J&K and this made him order their Army General Gracey to declare war on India but to this British government already had a safe-guard as during the transition period the army of both the nations were in the command of British to prevent the war between the newly carved nations. So, General Gracey and his superior Army Commander-in-Chief Claude Auchinleck also denied the permission to war.

On 1st November 1947 Lord Mountbatten reached Lahore to discuss for the peace in J&K with Jinnah. Jinnah was not ready to accept J&K to be a part of India to which Mountbatten clearly stated that there is no illegality in it and you have no choice other than to accept it and call your Tribal Army back.

Meanwhile, on 2nd November 1947 in India Nehru gave a speech and promised the public to conduct a plebiscite in J&K after the war. To many historians and political scientists this was the moment when situation of Kashmir went out of hands from India. There was not stop to the war in J&K to which on 31st December 1947 India lodged a complaint against Pakistan under the Chapter-6 in United Nations.

It took the United Nations around 4months to declare their decision on 21st April 1948 which mainly had three clauses, Clasue1: Cease Fire Order – decided the current LoC - Pakistan to call off their Army from Kashmir. Clause2: Truce Agreement - Pakistan to call off their every citizen escaped into India during this while and Clause3: Others - After the fulfilment of previous two conditions by Pakistan India will remove their Army slowly and conduct a plebiscite in the state.

By 31st December 1948 both the countries signed on the United Nations' decision. But since Pakistan never worked on the first two conditions which did not allowed United Nations to ask India for plebiscite.

The Indian Constitution & Kashmir

It was June 1949 when situations around the Kashmir got a little settled down and then the talk about the status of Kashmir in the Constitution of India started. Then four new members from Kashmir were brought into the Constituent Assembly, which was about to finish off the work of Indian Constitution, who were Sheikh Abdulla, Mirza Afzal Beg, Sayeed Masoodi, Motiram Baigra.

They were off the view that sooner or later plebiscite is going to be held as even Nehru mentioned in his address of 2nd November 1947 and also since United Nations also asked for it. So, these members didn't want the demographic conditions of Kashmir as a whole to get changed and thus proposed special provision for them which was majorly the reason behind the birth of two most controversial Articles of the Indian Constitution which were Article 370 and Article 35A(came up in 1954).

The Article 370 was of the focus to provide a J&K a special status with autonomous powers in respect of all conditions except for Defence, Communication and External Affairs. In the draft constitution of India the Article 370 was referred to as Article 306(A), but later on in the final compilation which came up on 26th November 1949 it became a part of Part-XXI (Temporary and Transitional Provisions), which was renamed in 13th Constitutional Amendment in 1962 as Temporary, Transitional and Special Provisions for the inclusion of Nagaland as a state of India and to allow certain special provisions to them under Article 371(A).

The structure of Article 370

The Article 370 of the Indian Constitution was designed as a powerful and impregnable to amendments. The article mainly had three subsections to it defining different powers of the article.

Article 370(1)(A) – This tells about the inapplicability of Article 238 of Part-VII of the Indian Constitution. (Article 238, now removed by 7th Amendment of the constitution in 1956, talked about the states with special privileges to keep army, have titles etc. like Hyderabad, Rajasthan, Mysore. As of situation after the 7th Amendment there were just two categories Part – VI were States (included all except J&K) Part – VIII were Union Territories)

Article 370(1)(B) – This talk about powers of the Indian Parliament over the J&K Parliament, in terms of applicability of rules and regulations if they were to be applied in there then it should have the state governments consultation/concurrence to it with the order of the President.

Article 370(1)(C) – This discusses the applicability of Articles from the Indian Constitution in J&K; earlier it was only two – Article 1 and Article 370.

Article 370(1)(D) – This highlights the way to add or remove any other article in the list of articles mentioned in Article370(1)(C) by the consultation/concurrence of J&K state government under the order of the President of India.

Article370(2) – This talk about the acceptance or revocation of approved conditions by the state government to the Indian government before the application of J&K Constitution designed by their constituent assembly.

Article370(3) – This is where the removal of Article 370 lies, it can only be removed by any Presidential Order issued under the recommendation of J&K constituent assembly.

The consistent changes for inconsistencies of Article 370

From the year of 1950, when India got its constitution till the revocation of Article 370 there were regular changes in the situations affecting it. To understand it chronologically beginning from 1950 when Presidents order was released for the application of Article 370 in J&K under the conditions mentioned in the Instrument of Accession for Defence, Communication and External Affairs only. In the 1951 J&K Constituent Assembly was set up with Sheikh Abdulla leading it. Moving to 1952 when Sheikh Abdulla and Nehru sat on Delhi Agreement for the approval of special status to J&K mainly to prevent its demography for the future plebiscite.

It was 1954 when first specific Presidential Order came up the Constitution (Application to Jammu & Kashmir) Order, 1954 which introduced Article 35A.

*Article 35A – One of the most special article of Indian Constitution with the irony of not even being in the constitution as this article was introduced by the Presidential Oder thus it was included in the main text of the Indian Constitution. This article mainly restricts the application of Fundamental Rights provided in the Indian Constitution under Part-III from Articles 14-32.

It further talks about the Residential status of people of J&K as they were to be given some specific residential status based privileges in buying properties, getting Jobs and reservations and also restricted many rights specifically to the women of the state (this clause was later removed by the J&K High-Court stating gender discrimination in 2002)

It was 1956 November by when the J&K Constitution got drafted completely and came into force from 26th November 1956 (date was kept same to match with the Indian date of Constitution coming into force). But it was not for long enough that the J&K Constitution remained the same in 1959 Nehru made the J&K Government to amend their constitution to add the authority of Indian Election Commission which was not given earlier.

After the China War in 1962 it was clear that some major calls have to be made to protect the state of J&K, which led to major amendments in the 1954 order of the President, especially adding more and more sections to the list of articles in Article 370(1)(C) and since after the fall of Sheikh Abdulla government in 1953 till 1975 there was only Congress government in power of J&K so being in Central and as well as state it was not difficult to make amendments to the J&K Constitution by getting the approval if the state government.

In 1964, before the death of Nehru made amendments for the J&K to add Article 356 (Emergency Provisions) it was needed because the Constitution of J&K allowed for maximum six months of emergency in any case under the rule of Governor of the state, but after the 1962 China War it was a high-time to call for this decision for security purposes.

Then after this there were changes in 1965 for the rename of Sadar-i-Riyasat to Governor and Wazir-e-Azam to Chief Minister, then in 1966 and then continuous changes in 70's and 80's by this time as some major political analysists describes almost 70% of Indian Constitution was applicable in J&K and this was majorly because of steps taken in 1975 then PM Indira Gandhi to implement as many articles as possible.

It was 1986 when the proclamation of State Emergency was done for the first time due to excessive rise in militants' activities. This incidence also led to the need of AFSPA (Armed Forces Special Power Act), 1990 this act gave the Armed forces to have special and discretionary powers in dealing with militants as by this the need to control all these activities was rising immensely. For the next decade there were not many changes or highlighting activities that took place.

It was 2002 when the Central Government of Atal Bihari Vajpayee made some major attempts to ease out the militancy in the J&K region with some steps to improve the relation with Pakistan also. During this time J&K was being ruled by Farooq Abdulla wherein he tried to pass a resolution to bring the constitutional situation of J&K back to same it was in 1953 or 1954 in regards of Indian Constitution and its applicability in their state.

The beginning of the end of Article 370

The year of 2014 introduced India to its completely new government of Narendra Modi which was keen in making J&K 370 free as its top priority. Soon their tenure of five year came to end in 2019 with no remarkable step taken by them in this regard, though there we were some background work taken place. In 2014 even the J&K also went under State Legislative Assembly Elections in which BJP had a great success in winning exceptional number of seats though they could not form the government due to falling short from the majority mark but they were in a position that no other party either can form government without their support.

This time they joined hands with Peoples Democratic Party with Mehbooba Mufti as Chief Minister for the next three years government was working fine but then on 19th June BJP called off their alliance with PDP and sent a letter to the governor of the state. After this CM Mehbooba Mufti also sent her letter of resignation with stating that they do not look forward in making any new alliances with any other party. From the very next day 20th June 2018 Jammu & Kashmir was under Governor's Rule as per Article 92 of the Jammu & Kashmir Constitution which can be of maximum six months in duration.

As soon as this happened Satya Pal Malik was sent as the new governor of the state, for his understanding of Politics and its tactics, he took the office charge on 23rd August 2018. On 19th December 2018, a day before end of Governor's Rule in the state he sent his report to the President of India stating that state is not in position to form a stable government and there is a high chances of horse-trading, thus requesting for Presidents Rule under Article 356.

It was to be noted in the Presidents Order of 19th December afterwards wherein he specifically mentioned of the transfer of powers of J&K State Assembly to the Indian Parliament under the Article 356 and also mentioned that the Governor of the state can act with the powers restated to him under Article 91 of the J&K Constitution.

The 2019 Lok Sabha elections were now pacing up and on 23rd May 2019 the Narendra Modi Government was voted for second term with overwhelming majority of 353 seats (NDA). On 30th May PM Narendra Modi took oath with his cabinet minister with the debut Amit Shah as a Home Minister. The government was totally aware of the fact they have keep up their promise of ending the special status of J&K under Article 370 & 35A from their manifesto.

It was noticed in the next two months specially by July end there was significant increase in the army troops in J&K that went up to around 50,000+ soldiers by 4th August. There were certain speculations going around the nation of something big to happen but what exactly no one knew, some leaders and political activists of Kashmir were taken into House Arrest and also Section 144 IPC was also imposed in the state.

Then came the big day of 5th August 2019, for everyone it seemed like a normal Monday morning but then came the Presidential Order – Constitution (Application to Jammu & Kashmir) Order, 2019 which majorly squashed the provisions of 1954 Order that included one of the most controversial Article 35A by stating;
  1. This order will replace the order of 1954 and all the provisions of Indian Constitution will be applicable to J&K in the exact form.
     
  2. Added a Clasue4 in Article 367 (Interpretations) highlighting the meaning of Constitution is what is applied to J&K, Governor working with consultation of J&K assembly is similar to Government and also mentioned that under Article 370(3) Constituent Assembly is same as J&K Legislative Assembly.
Before anyone could have understood the essence and motive behind that Order Home Minister Amit Shah was ready to address the Rajya Sabha in presenting two resolutions, the first resolution; 1. The Article 370 is completely squashed with just clause 1 as exception but with a new language stating that – All provisions of Indian Constitution will now be applicable in J&K notwithstanding by any provisions of Article 152, 308, 363 and others.

In the same flow the second resolution was also introduced by Home Minister on behalf of the President clearly stating as per the provisions of Article 3 request is made to approve the J&K Reorganization Bill, 2019 also by mentioning that the power of required permission of J&K State assembly has already been transferred to the Parliament in the order of 19th December 2018.

With this kind of bullet-proof plan within 90mins both the houses passed the resolution and by next hour the new bill came from President for J&K Reorganization under the Article 4. With the passing of the bill J&K got divided into two Union Territories with Ladakh UT under Article 239 without assembly and Jammu & Kashmir UT under Article 239A with assembly (and alike powers with Pondicherry). With this move there were series of internal changes to where the constitution of J&K became a book from the past with introduction of IPC, RTI, RTE like acts in the new UTs and also with the scraping of Re-settlement Act of J&K India was now an integrated state of what Patel had dreamt off.


The Big Question on 370

With this move India was now truly integrated, India was now truly free, India was now the India which every Indian wanted to see. This was not just a fulfilment of manifesto promise of the government it was a decision to uplift every residents of J&K with new era of development, knowledge, employment, and secured future.

The Big Questions here were that – How it was possible to do so quickly, if it was so easy, why they have kept pending for this long, and the Biggest of all This step is completely un-constitutional. But to all those question the answer is that the Modi Government started to work on this from 2014 only to come up with such a perfect and constitutional way with no scope of blames to be made. As we see how the clause for the requirement of J&K State Assembly was worked out way before in 19th December order and how systematically each order or resolution was passed keeping in mind the requirements of next order or resolutions.

At the face of it this move might look like it was not an ethical step for the Kashmiri people but in long term it is surely going to beneficial when development will start, new knowledge centres will open up, new employment opportunities will be there. And honestly how many people remember that what number of people died in the Stand-still agreement time before the annexation of Hyderabad Presidency, officially there were around 20k-40k deaths registered but still some reports claim it was more than 200k, so think the same could have been the situation of Kashmir Valley if things were kept on hold for long for the security of J&K. Some actions might feel harsh at the moment but keeping in mind the secure future and maintaining national integrity this move was more than required.

Written By: Dhruv Sahu, B.A.LL.B'24 - Jindal Global Law School

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