Article 370 of the Indian constitution bestowed special status to Jammu and Kashmir. 5th August 2020 marked the 1st anniversary of the abrogation of article 370 or the revocation of special status given to Jammu and Kashmir. The prime motive of article 370 was to exempt Jammu and Kashmir from the complete applicability of the Indian constitution. In other words, article 370 in Jammu and Kashmir exempts Jammu and Kashmir from the applicability of the Indian constitution. However, certain provisions of the Indian constitution were still applicable. However, article 370 was a temporary order and such order could be removed at any point of time by presidential order. Pakistan and China have occupied a part of Jammu and Kashmir. The Pakistani part is known as “Azad Jammu and Kashmir” while the Chinese part is known as “Aksai Chin”.
The election manifesto of the Bhartiya Janta Party included the scrapping of Article 370 and Article 35A in Jammu and Kashmir. After the general elections of 2019, the Bhartiya Janta Party gained an undisputed majority and thus fulfilled its promise of abrogating article 370 within 2 and a half months of winning the election.
The President of India issued an order that nullified the presidential order of 1954. After the revocation of special status conferred to Jammu and Kashmir, the Home Minister of India, Mr Amit Shah introduced a reorganization bill that divided the state into two union territories that led to 28 states and 9 union territories in India. Prior to the revocation of special status given to Jammu and Kashmir, many prominent leaders of Jammu and Kashmir were put under house arrest. Leaders like Mrs Mehbooba Mufti(Former chief minister of Jammu and Kashmir), Mr Omar Abdullah(Former chief minister of Jammu and Kashmir), Mr Usman Majid, etc were put under house arrest. Various leaders are still under house arrest. The prime reason provided to abrogate article 370 was to put Jammu and Kashmir on equal lines with other states and union territories.
India gained independence from British rule in the year 1947. However, certain places within India were still under the control of different rulers. The iron man of India, Sardar Vallabhbhai Patel commenced with his efforts to include such areas in the country or under one government. One of the states that were not a part of India as Jammu and Kashmir. Moreover, Sardar Vallabhbhai Patel didn’t have any interest to include Jammu and Kashmir to India because of the majority of Muslims. However, it was Jawaharlal Nehru and Mahatma Gandhi who was in favour of including Jammu and Kashmir in India, since, Jawaharlal Nehru was a Kashmiri pandit and if Jammu and Kashmir became a part of India then that would defy Jinnah’s two-nation theory. Maharaja Hari Singh of Kashmir was insecure that Jawaharlal Nehru would pass his position to his close friend Sheikh Abdullah if Kashmir became a part of India. On the other hand, he didn’t want to be a part of Pakistan because he was a Hindu. And thus, this was the foundation of keeping Kashmir as an independent. After that, an instrument of accession was signed between India and Kashmir to join Kashmir as a part of India. Under the instrument of accession, there was a provision that special status must be provided to Jammu and Kashmir in the future to which the Indian government agreed and that marked the birth of article 370. In the instrument of accession, there was another provision that Jammu and Kashmir would have their separate constitution to which India agreed. Until 1965, the citizens of Jammu and Kashmir used to elect a prime minister rather than a chief minister. In 1949, article 370 that provided special and temporary status to Jammu and Kashmir was included in the constitution of India. And article 35A of the Indian constitution was added into the Indian constitution by presidential order in the year 1954.
ARTICLE 370 AND 35(A):
Article 370 of the Indian constitution provided for certain temporary provisions for Jammu and Kashmir. Article 35(A) of the Indian constitution confers the power to Jammu and Kashmir to define who are the permanent residents of Jammu and Kashmir. It has to be noted that article 370 was temporary in nature.
Article 370 of the Indian constitution provides that the central government does not have the power to make laws on state subjects. The central government is empowered to make laws regarding the subject of defence, external affairs, and communication. If the central government wants to apply any other law in Jammu and Kashmir then it shall be done after seeking approval from the government of Jammu and Kashmir. However, among the 97 subjects mentioned in the union list, 94 applied to Jammu and Kashmir even before the scrapping of article 370. Moreover, there are 395 articles in the constitution of India among which 260 articles applied to Jammu and Kashmir. Furthermore, there 47 subjects in the concurrent list among which 26 were applied to Jammu and Kashmir. The process of revoking article 370 is given within the article. Article 370 mentions that the President through the means of public notification at any point of time may remove such special status provided that there is the consent of the constituent assembly of Jammu and Kashmir. However, such constituent assembly was non-existent, since it was dissolved in the year 1957 itself when the constitution of Jammu and Kashmir was formed. A presidential order in the year 2019 added the fourth clause in article 367. Article 367(4) of the Indian constitution stated that the constitution of India would apply to the whole state Jammu and Kashmir.
Article 35A is often said to be an injustice to other citizens(excluding the citizens of Jammu and Kashmir). A unique fact of article 35A is that it is not present in the Indian constitution rather it was present in the constitution of Jammu and Kashmir. In the Indian constitution article 35 is directly succeeded by article 36 and not any article 35A. Article 35A provided power to the government of Jammu and Kashmir to define the people who are permanent residents of the Jammu and Kashmir and further create special provisions for them. A permanent resident as per the constitution of Jammu and Kashmir is the one who is a state subject since or before May 10, 1954, or who has lawfully acquired a property in Jammu and Kashmir, or who has been living there for more than 10 years. Article 35A restricted the non-residents of Jammu and Kashmir to buy property in Jammu and Kashmir. Article 35A restricted the non-residents of Jammu and Kashmir to do a job in Jammu and Kashmir. Article 35A restricted the non-resident students of Jammu and Kashmir are restricted from applying to state-funded professional colleges and scholarship programs. The crux of the matter is that no one apart from the citizens of Jammu and Kashmir was obliged to take benefit of the State resources. Another startling fact about the constitution of Jammu and Kashmir was that a non-resident was not obliged his/her right to vote.
AFTERMATH OF ABROGATION:
Post the revocation of special status given to Jammu and Kashmir, there was a wave of happiness and triumph across India, the special status given to Jammu and Kashmir was restored. Moreover, one of the agendas of the Bhartiya Janta Party, as mentioned in the election manifesto, was fulfilled.
The first and foremost aftermath of abrogation was the reorganization bill that reduced one state while creating 2 new union territories. Not seeking the consent of Kashmiri residents and having a pre-conceived notion that they want revocation of special status given to Jammu and Kashmir proved out to be disastrous as violence erupted in various parts of Jammu and Kashmir. Before revoking such special status many prominent Kashmiri leaders were arrested and some of them till now are under detention. Immediately after the revocation of such special status, there was a shutdown of communication in the whole Jammu and Kashmir that created serious problems. Local newspapers of Jammu and Kashmir failed to report because of the cutting down of communication, students who went out of Jammu and Kashmir to study failed to reach out to their parents due to the shutting down of communication.7-month internet shutdown was imposed in Jammu and Kashmir after the revocation of special status. In a modern world, where the internet is of prime importance, imagine a place where people inhabit but without any means of the internet or without any means of connecting with people. Even after lifting the shutdown, the residents of Jammu and Kashmir are provided 2G internet. Even during COVID-19 pandemic 4G internet is not provided in Jammu and Kashmir. The special status was revoked to bring down the violence in the state and to get control or get a free hand over the defence system of the state since the state is located in an extremely sensitive area. Moreover, the internal violence of the state was ever-increasing and it was urgently required that such disturbances are suppressed. However, since the special status of Jammu and Kashmir has been revoked, the number of stone-pelting incidents have increased to 1,199. Nearly, 1,190 incidents of stone-pelting took place between August 2019 to November 2019.Human rights violation is another major issue in Jammu and Kashmir and has become even severe after the revocation of special status. Multiple human rights violations were reported in Jammu and Kashmir after revoking the special status even after a strict lockdown in Jammu and Kashmir. A report claimed that several children were arrested by the security forces after the abrogation. A Washington Post report claimed that several people were beaten up and tortured by the armed forces after the revocation of special status. In October 2019, nearly 13 Kashmiri women came out to protest against the revocation of special status. However, they were arrested and were asked by the forces to sign a bond assure that they won’t repeat such an act in the future that results in a “breach of peace”.Shutdown of the communication services has an adverse effect on the health system of Jammu and Kashmir. Further, the restrictions on movement, curfews, absence of transport, etc have exposed the reality of ground-level “normalcy”. The mental health problems in Jammu and Kashmir after the revocation of special status has significantly increased. Healthcare workers who proved out to be a blessing amid the COVID-19 pandemic were not spared by the forces in Jammu and Kashmir. A senior cardiologist in Srinagar was detained, tortured, and beaten up by the police. Three gynaecologists were allegedly harassed by the police forces who were deployed outside the Lal Ded Hospital(Srinagar). An ambulance driver in Pulwama was beaten up by police authorities while the driver was busy transporting patients. Such tortures on the healthcare workers at such a sensitive time would raise concerns and would create a doubt in the minds of healthcare workers.