Author: Mr. Shushant, CNLU Patna
The State of Jammu and Kashmir has been given a special status under the Indian Constitution. Every single person is aware of this. But enacting such an article has had its impact on the state alone which the rest of the country is not aware of. The people of the state are deprived of the fundamental rights that the rest of the country has. There are restrictions imposed on them. Also, the people of other states are not allowed to buy or own any land or property in the state of Jammu and Kashmir. With the recent act of abrogation of Article 370, the infamous article granting special status to the state of Jammu and Kashmir, all such restrictions have been removed and the special status was taken away from the state giving them equal status as any other state in the country.
The article talks about the history and background of the article, the effects of the article on the people of Jammu and Kashmir prior to abrogation, the abrogation of the article and the effects of the abrogation on the state of Jammu and Kashmir.
History and Background of Article 370
Article 370 of the Indian Constitution gives a special status to the state of Jammu and Kashmir and also allowed the state to have its own constitution, dual citizenship, and have autonomy over the internal administration of the State. The article was added to the Indian Constitution in 1954 by way of a special order issued by the President. It provides for many provisions of the Indian Constitution and the various laws of India to have no effect on the working of the State. Article 370 comes under Part XXI of the Indian Constitution which is about “Temporary, Transitional and Special Provisions”. The Constituent Assembly of Jammu and Kashmir were given the power to recommend articles for the Indian Constitution that are to be applied to the state or even to abrogate article 370 altogether. The Constituent Assembly was consulted before adding Article 370 in the Constitution in 1954. The said article was meant to be a temporary provision to be enacted until the state’s constitution was formulated and adopted. But the Jammu and Kashmir Constituent Assembly dissolved itself in 1970 without either recommending any articles for addition in the Indian Constitution or without abrogating. Hence, article 370 stayed in the Indian Constitution and it had the power to amend or abrogate the article as there was no Constituent Assembly to which any sort of reference could be made now.
Article 370 provided for the residents of the state of Jammu and Kashmir to have their own separate set of laws including laws with regard to citizenship, property ownership and they even had their Fundamental rights which were not the same as the people of the rest of the Country. Article 370 and 35A prohibited Indian citizens, other than those living in Jammu and Kashmir, from buying or owning any land or property in the state.
Effects of Article 370 on Jammu And Kashmir
Prior to repealing Article 370, the doors of Jammu and Kashmir were shut and there was only an internal economy that was not affected by that of the country which made the separatists and the politicians in Jammu and Kashmir very powerful. This article which was supposed to be of temporary nature played a very major role in regard to its impact on the State and had adverse effects on the people living there with their minimal access to facilities and the inability to enforce their fundamental rights.
- The exception to the Fundamental Rights: Article 370 is an exception to the fundamental rights that are guaranteed to all the citizens of the country. This is due to the reason that the state was to have a constitution of its own and the article provides that parts of the Indian constitution, as well as many laws, do not apply to the state. Hence the residents of Jammu and Kashmir do not have the same fundamental rights as the rest of the people in India have.
- Equivalent constitution: Article 370 allowed the State of Jammu and Kashmir to have a constitution for the state despite the existence of a Constitution for the entire country. The Indian Constitution provides for the protection of the rights of the minorities but the state Constitution does not have the word “minorities” mentioned at all. It does not provide for any protection of the minorities in the state. Up until the article was repealed, the state of Jammu and Kashmir was the only one to not have tribal rights protection. Kashmir has a minority of Hindu Pandits and they were abused, their houses were looted, the women were raped and many of these people were killed and as there was no protection given to minorities, the Kashmiri Muslims, who are a majority, took the help of Article 370 to do any act as per their will. The male Kashmiri Muslims had far greater rights than any other Indian citizen as per their constitution.
- No Right to Education: The Directive Principles of State Policy under the Indian Constitution gives the right to education to all citizens of India. But the State of Jammu and Kashmir do not follow the Directive Principles of State Policy and hence there is no right to education in the state for its citizens.
- Exclusivity to buy land: Only the residents of Jammu and Kashmir are allowed to buy or own land in the state. All other Indian citizens are prohibited from owning or buying any land or property in the state of Jammu and Kashmir. This was a major reason for the under development of the state as when there is such a prohibition, there is no scope for development and there does not arise an opportunity to generate employment substantial to affect the economy of the country as a whole.
- Rights of women: The women in the state were deprived of their rights of inheritance and permanent residence if they married non-Permanent Residents of Kashmir. This was provided for in Article 35A of the Indian Constitution. Even if the person who marries a Kashmiri girl and wants to settle in the state, the family loses its rights. On the other hand, if a Kashmiri girl marries a Pakistani man, her rights are not affected and stay intact, she does not lose her right of inheritance and nor does she lose her Kashmiri citizenship.
- Deprived reservation for Dalits: In 1957, Dalits were brought in from Punjab into Jammu and Kashmir to work as sweepers. Post-1957, when the state constitution was enacted, there was no provision for reservation given to the Dalits to work as anything other than sweepers. Hence, even post-1957, the Dalits in the state of Jammu and Kashmir could not do any other job than that of a sweeper. They could not get a Schedule Castes certificate and avail any benefits given to them by the central government.
- Racial discrimination: There was racial discrimination between the people in Kashmir with regard to who got the Permanent Resident status. The Hindu and Sikh refugees from West Pakistan were non-Permanent Resident second-class citizens and the Uighur Muslims from Xinjiang were granted the status of Permanent Resident status. The abolition of 35A has granted citizenship rights to Hindus, Sikhs, Buddhists, Dalits, and minorities and also granted them fundamental rights as described in the Constitution of India.
- Feeding the power elites: Two-time governor of Jammu and Kashmir, Mr. Jagmohan, was of the opinion that “Article 370 is a breeding ground for the parasites at the heart of paradise. It skins the poor. It deceives them with its mirage. It lines the pockets of the “power elites”. It fans the ego of the new sultans. In essence, it creates land without justice, a land full of crudities and contradictions. It props up politics of deception, duplicity, and demagogy.”
- Frequent Misuse: Mr. Jagmohan was further of the opinion that “the fundamental aspect which was has been lost sight of in the controversy for deletion or retention of Article 370 is its misuse. Over the years, it has become an instrument of exploitation in the hands of the ruling political elites and other vested interests in bureaucracy, business, judiciary, and bar. Apart from the politicians, the richer classes have found it convenient to amass wealth and not allow healthy financial legislation to come to the State”.
- Tax thefts under Article 370: The tax taken from the people of the country other than from the people of Kashmir was used for the development of Kashmir. Not just a mere amount but thousands of crores of Rupees was given for the development of Kashmir. But the end use of the tax was deceiving. The common people are prevented from realizing that Article 370 is actually keeping them impoverished and denying them justice and also their due share in economic development.
- Breeding the two-nation theory: Article 370 fogged the very vision of a great social and cultural crucible from Kashmir to Kanyakumari. A bye product of Article 370 was a separate Constitution for the state of Jammu and Kashmir. Such a provision must be done away with as it facilitates the growth and the continuation of a corrupt group of people controlling the country and puts false notions in the minds of the youth. It has given rise to regional tensions and conflicts and even the autonomy assumed to be available is not attainable in practice.
Repealing of Article 370
Even when the central government was investing crores of rupees for the upliftment of Jammu and Kashmir, there was no visible development in the state and was there no growth in opportunities in the employment sector of the state. Moreover, there was a hike in the terrorist activities that took place in the state in connivance with many politicians and separatists which took a toll on thousands of lives in Jammu and Kashmir. Ladakh has suffered the most due to the negligence of the State Government. As a result, the Government of India revoked the special status given to Kashmir by the Indian Constitution under Article 370 through a presidential order and passing of a resolution by the Parliament on August 5th, 2019. President of India, Ram Nath Kovind, passed an order enforcing all the provisions of the Constitution to be applicable in the State of Jammu and Kashmir. Resolutions were passed by both the houses of the Parliament in this effect. The President further issued an order on 6th August 2019, declaring all the clauses of Article 370 except for clause 1 to be inoperative. Further, an act was passed to reorganize the state into two union territories namely, Union Territory of Jammu and Kashmir and Union Territory of Ladakh. This reorganization is to be effective from 31st October 2019.
The abrogation of Article 370 states that “All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India or any other instrument, treaty or agreement as envisaged under article 363 or otherwise”.
Effect of Abrogation of Article 370
The abrogation of article 370 has received mixed responses from the people of the country. The Kashmiris are happy whereas some of them are not. But going by the impact that this abrogation will have on the state, the government of India has taken a step forward to ensure unity within the country and also a sense of discipline with regard to the application of laws within the nation. With the abrogation, the minorities have been recognized and are now given their rights which they were deprived of for the past 70 years. They will now have equal rights as the Muslims of Kashmir as the Indian Constitution will be applicable there as well without any obstacles. There will be a fast-paced development in the region with the government implementing PPP models and privatization with a view to develop and generate and increase employment opportunities.
The youth in Kashmir was being misguided and led to join terrorist groups that operated within the state with the direct or indirect help of political leaders and separatist groups. These people took shelter of Article 370 and hidden laws to operate. Now, when there is no hidden law to protect these people, terrorist activities can be curbed to a great extent. Direct action can be taken against the terrorist groups and the political leaders and separatist groups supporting them and can also help to bring the misguided youth to the main stream. The right to education which was denied to the citizens of Kashmir earlier will now be available to them as the Government of India can now establish educational institutions in the region for learning opportunities to all.
With the abrogation of Article 370, the Kashmiri women who would lose their fundamental rights of inheritance would now be unaffected by the application of the fundamental rights as per the Indian Constitution on Kashmir as well. They will not lose their right on the property now, even if they marry a non-Permanent Resident of Kashmir or any man from any other state. With the law of land applying now in Kashmir, triple-talaq will be an old concept which will no longer be applicable to Muslim women, hence they now have the same rights as that of a Muslim woman in any other state.
Kashmiri Pandits who were forcefully thrown out of Kashmir can now go back to their homeland with the assurance given to them by the Government with regard to the resettlement of Hindus in Kashmir. But along with these positive effects, there are some people who are not happy with the abrogation of the Constitutional provision. Some Kashmiri political leaders and separatist groups are hell bent upon flaring up the tension in the valley which is a cause of concern of the security of the common people. Kashmir, which has lost its state identity with the state being divided into union territories is not happy but Ladakh is finally set to get the fruits of development now. The fund allotment by the central government to the union territories of Jammu and Kashmir and Ladakh has to be monitored closely to ensure that all the funds go into the development of the region and not into the pockets of few families or their cronies. As the door of the market of Kashmir has just opened up, it will take time for the industries to mark their presence and flourish there.
The recent abrogation of Article 370 has led to mixed reactions by the people of the country. While there are a few negative impacts that this act has inflicted, the bigger positive picture is to be focused upon. The fact that the people of Jammu and Kashmir will now be equal in status, their fundamental rights being given to them and the step towards unity within the country and enforcement of a disciplined manner of laws and regulations has to be highlighted. They were deprived of their rights for 70 years and this abrogation has given them the freedom to do what they want, to live as they like, to marry whom they want without the fear of losing their rights. They can now move freely, live like the rest of the country, an be equal to any citizen of the country from any state. This has been a huge step of development for the country with big opportunities for development, employment and boosting the economy by investing in Jammu and Kashmir.