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Abrogation Of Article 370 And 35A With Respect To Changing Religious Dynamics In The Country

Article 370 dealt with the 'Temporary, Transitional and Special Provisions' that were provided to the state of Jammu and Kashmir. It permitted the state to have a separate constitution, state flag and autonomy over the administration of the state. Another article, other than Article 370 was Article 35A, which defined the permanent residents of the State. On 5 August 2019, the special status of the State was revoked. The State went into a Virtual lockdown and many of the state's ministers and officers were detained.

The purpose of this paper is to discuss the problem with the article and the reason for its abrogation. The paper will also talk about the religious conditions that were and are still prevailing in the State.

Article 370

Article 370 was stated in part XXI of the Indian Constitution. It dealt with the 'Temporary, Transitional and Special Provisions' that were provided to the state of Jammu and Kashmir. The status was originally in Article 306A which was later renumbered. Clause 1 of the article stated that the provisions of Article 238 shall not apply to the state of Jammu and Kashmir1.

It also stated that the Parliament would have the power to make laws for the state only for the matters in the Union List and the Concurrent List. Clause 3 of the Article states that the President can declare the article to cease to be operative or be operative with exceptions and modifications by issuing a public notification, provided that the State's Constituent Assembly2 accepts it.

Article 35A

Article 35A defined the permanent residents of the state. It was added to the Constitution through a Presidential Order issued under Article 3703 . The Constitution of Jammu and Kashmir defined Permanent Resident as a person who was a state subject on 14 May 1954, or who has been a resident of the state for 10 years and has legally acquired immovable property within the state.

State subjects were those who were residents of the princely state of Jammu and Kashmir at the time of the state's merger with the Union of India and their descendants. These permanent residents were given some special rights and privileges which included the ability to acquire immovable property within the state, the ability to vote and contest elections, seeking government employment or other state benefits such as higher education and health care. No other person, even if citizens of India, were entitled to these 'privileges'.

Major Reasons For The Abrogation Of The Article

The Bharatiya Janata Party has always been opposed to Article 370. They believed that the State was not able to develop due to the provisions of this article. There were several issues with the Article itself:
  1. The Article motivated separatist tendencies among the people of Jammu and Kashmir. They considered themselves as a different nation.
  2. Since the State had autonomy over the administration it motivated the politicians and other influential leaders to do corruption and hinder the state's development and easily get away with it.
  3. The major source of income for the state was its tourism which was affected as the state had become the land of terrorism.People from outside the state were not allowed to invest, do any business or buy any property in the state which also contributed to the poor economic status of the state.
  4. Another major issue was the threat to Indian security from the Pakistani terrorists. If a citizen married any Kashmir girl, he was entitled to Kashmir's citizenship.
  5. Another issue was the article was not gender-neutral. The Jammu and Kashmir's government had issued 'permanent resident certificates'. The certificates issued to women had the marking 'valid only till marriage' while the certificates for men did not have any such markings. If a Kashmiri woman married outside the state, she was denied a new certificate.

One of the controversies related to the article was the Amarnath land transfer controversy. On 26 May 2008, the Government of India and the State government of Jammu and Kashmir came to an agreement to transfer 100 acres of forest land to the Shri Amarnathji Shrine Board (SASB) to build temporary shelters for Hindu pilgrims. The Kashmiri separatist and the people of Kashmir protested heavily against this decision of the Government of India stating that it was against article 370 which prevents any Indian citizen to settle in Kashmir. Due to the protests, the Government of India had to reverse the decision to transfer the land.

Abrogation Of The Article

On 5 August 2019, Home Minister Amit Shah announced in the Rajya Sabha that the President of India had issued The Constitution (Application to Jammu and Kashmir) Order, 2019 4 superseding the Constitution (Application to Jammu and Kashmir) Order, 1954. This meant that the separate constitution for the state of Jammu and Kashmir stood abrogated. The Government had done this by utilizing the same article. Clause 3 of Article 370 said that the President, through the issue of public notification, can declare the article to cease to be operative or be operative with exceptions and modifications, provided that the state's Constituent Assembly accepts it. The state's Constituent Assembly was dissolved on 26 January 1957.

The state went into a virtual lockdown. All the contact and internet lines were cut down. Disruption of Internet access does not allow citizens to exercise their right to freedom of speech and expression, a fundamental right. Many political leaders including Jammu and Kashmir chief ministers Farooq Abdullah, Omar Abdullah, Mehbooba Mufti, Shah Faesal were detained. 2000-4000 people which included government officials, elected members, lawyers, activists, entrepreneurs and students were detained under the Jammu and Kashmir's Public Safety Act, 1978 (PSA), which allowed the authorities to jail a person for up to two years without any charge or trial. Many people were left without basic facilities such as food, water, etc. Supreme Court described this detention as a lawless law 5.

Change In The Status Of Jammu And Kashmir

On 5 August 2019, Home Minister Amit Shah introduced the Jammu and Kashmir Reorganisation Bill, 2019 in the Rajya Sabha to change the status of Jammu and Kashmir from a state to two Union Territories, namely UT of Jammu and Kashmir and UT of Ladakh. By the end of the day, the bill was passed by the Rajya Sabha with 125 votes in favour and 61 against (67%). The next day, Lok Sabha passed the bill with 370 votes in favour and 70 votes against (84%). After the president signed it, the bill became an Act.

The two union territories came into existence on 31 October 2019, which is also celebrated as the National Unity Day. The President of India appointed a Lieutenant Governor for the UT of Jammu and Kashmir and one for the UT of Ladakh. Both the Lieutenant Governors were sworn in by Justice Gita Mittal, the Chief Justice of Jammu and Kashmir High Court, on 31 October 2019.

On 31 March 2020, the Union Ministry of Home Affairs (Department of Jammu, Kashmir and Ladakh Affairs) passed the Jammu and Kashmir Reorganisation (Adaptation of State Laws) Order 2020, repealing 29 state laws and amending 109 laws of Jammu and Kashmir. According to the order, any person who has stayed in Jammu and Kashmir for 15 years or has studied for a period of seven years and appeared in Class 10th/12th examination in the territory will be considered to have domicile in Jammu and Kashmir.

Children of central government officials and others who have served in Jammu and Kashmir for a period of 10 years also have domicile status. A person registered as a migrant by the Relief and Rehabilitation Commissioner (Migrants) can also apply for domicile benefits.

Religious Challenges Faced By Jammu And Kashmir

Both India and Pakistan have been trying to use the sentiments of a particular community for their advantage. The Muslim radical groups in Kashmir were asking for a merger with Pakistan, and the radical Hindu groups in Jammu were demanding for a division of Jammu and Kashmir into three states on the basis of religion. India and Pakistan are absorbed in the Kashmir issue and both the countries are using the religious card.

Post-nineties, Muslims in Kashmir were divided based on caste-ism, sufiism, peer-ism and fundamentalism6 . There have been Sikh and Hindu massacres, indicating that a certain influence plans to keep non-Muslims away from the valley.

The flight of Kashmiri Hindus
The Kashmiri pandits were a favoured section in the valley during the Dogra rule from 1846-1947. Many Kashmiri pandits had to leave due to several factors such as the land reforms of 1950. They began to leave in greater numbers by the 1990s due to the outbreak of militancy, which was followed by threats by radical Islamists and militants. The day is also remembered as exodus day, which means a mass departure of people.

The Kashmiri pandits were declared as 'kafirs' or non-believers of Islam and the males were forced to leave Kashmir, convert to Islam or be killed. Those who chose the first were told to leave their women behind. Despite the evidence that the militants had widespread involvement in rapes, they were never investigated. The ones which were recorded did not have any criminal prosecution.

The young Pundits outside Kashmir know only one thing: that their elders were thrown out by militants and forced to leave their belongings and live in refugee camps. The cycle of hatred thus spans generations.

Muslims in Kashmir have been growing up under a single religion: Islam. The younger generation can barely imagine how their elders used to live with Kashmiri Pundits or how educated Pundits who maintained secularism in the curriculum dominated the education system in Kashmir.

Jammu And Kashmir Reorganisation Act, 2019

The Act contains provisions to reconstitute the state of Jammu and Kashmir. The state has now been divided into two Union Territories, Jammu and Kashmir, and Ladakh. A bill for the Act was passed by the Rajya Sabha on 5 August 2019, and by the Lok Sabha on 6 August 2019. It gained the president's assent on 9 August 2019. The Act consists of 103 clauses, extends 106 central laws to the UTs, repeals 153 state laws, and abolishes the Jammu and Kashmir Legislative Council among other things.

From 9 August 2019 onwards, a number of petitions were filed challenging the validity of the act. This included petitions by members of parliament, former bureaucrats and military officers, advocates, lawyers, activists and non-governmental organisations7. A five Judge bench was set up on August 29 to hear these petitions.

Conclusion
Though the abrogation was a politically wise decision, however the authority of the same is debatable for the judicial clarification. The Constitution is considered the supreme law of the country, therefore, the procedure adopted while repealing it's provisions is a major concern. The center had shown political responsibility to give justice to the people. The reason behind this was to resolve the unsettled conflicts of the religious radical groups and corrupt politics in Kashmir. The center had been criticised for creating instability in the state of Jammu and Kashmir and for not taking approval of the legislative assembly of the state during the entire procedure. Preventive detentions were politically correct but constitutionally questionable.

End-Notes:
  1. Article 238 was repealed in the 7th Amendment in 1956.
  2. Jammu and Kashmir Constituent Assembly was dissolved on 26 January 1957.
  3. The Constitution (Application to Jammu and Kashmir) Order, 1954.
  4. C.O. 272
  5. Jaya Mala vs Home Secretary, Government of Jammu and Kashmir, AIR 1982 SC 1297
  6. Surinder singh oberoi Ethnic Separatism and Insurgency in Kashmir
  7. https://apcss.org/wpcontent/uploads/2011/03/PagesfromReligiousRadicalismandSecurityinSouthAsiach.pdf
  8. Satya Prakash, "Abrogation of Article 370: Around two dozen petitions hang fire in Supreme Court", Tribune, 23 August, 2019

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