By A. Ramya of Tamil Nadu Dr. Ambedkar Law University.
An Article which imposes a threat to the integrity of India and exposes ambiguity that “whether Kashmir is part of India or not” got washed away by the BJP government. It gives rise to political history or political earthquake or political debacle which changes the life of the people both in Kashmir and other parts of India.
Art 370 has a long-standing history in the Indian Constitution, even before incorporation of this Article there is a lot of controversies over which it should be included or not by the drafter of the Constitution. Finally, the then PM Jawaharlal Nehru took a tough decision which shifts its gear after several decades of nationalization.
Since India got independence no government even congress stood for this Article 370, although they assert that they will resolve the ambiguity and dispute over this Article and for 70 years what has not been done is finally done by the PM Narendra Modi.
The semi-sovereign status of the Kashmir has been abrogated and it was fully integrated with the rest of India, which was declared by the Home Minister Amit Shah. Whether he was aware or not, he said that almost exactly done “what Jawaharlal Nehru wanted to do but could not on Article 370”. Thus in this article, I am going to discuss the scrapping of Article 370 and after this change will the accusation of Nehru for his decision come to an end.
Article 370 didn’t give anything except separatism -Primi Minister Narendra Modi.
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Is Abrogation a Political disaster or Political victory
The historic step was taken by the ruling government on August 5, 2019, by introducing Jammu and Kashmir Reorganization Bill which include the following two statutory resolution that is
• Nullifying the special status given to the Jammu and Kashmir (Article-370), bifurcated and downsized the state into two Union Territory. It also extended all the provisions of the Constitution so that it applies to Jammu and Kashmir like the other part of the country.
• Also, Article 35A which bars the citizen of India outside Jammu and Kashmir to buy property in the state and women marrying non-Kashmiris will lose their property rights was repealed.
But the question before all of us was, whether the bill passed by the parliament is constitutionally valid or not? And the output of the decision amounts to political victory. The legislation lacks both legalities as well as moral legitimacy which are as follows. Firstly, Nowhere in the world of a democratic country, one can see the executive organ of the government passes orders to amend the constitution.
The reason for the lack of legality is that the notification has read as ‘constituent assembly’ to mean ‘legislative assembly’ of the state, having clearly dissolved the assembly and usurp its power but there is no identical between these two terms, it has to be done in such a way the core value is saved. For e.g.- the special majority of the state legislative assembly.
Secondly, the Parliament before taking into consideration the matters regarding the formation of new states, increase or diminish the area of any state or altering its boundary or name, the President must refer the bill to the legislature for expressing their views”.
But in the present scenario, there is no state legislature at all and thus vital part of India’s federal system under Article 3 is violated. Shah defeated this rebuttal point by explaining that since the J&K legislature is dissolved and the state is under the presidential rule the centre has the power to take the prerogative step (Art 370(3).
Thirdly, P.Chidambaram strongly opposed this move as “fatal legal error” and raised the question that “How can Art 370 be modified using Art 370?” but Shah clarified it has to be read with Art 371 D. Fourthly, The leaders of the J&K were detained under house arrest before the issuance of the notification also it takes away the special rights of the J&K people but the government responded that the notification reduced the gap between the citizens of J&K and other parts of the country also the detention of leaders are refused by him.
Finally, In the India history, only the Union Territory is upgraded to the status of State and nowhere the state is reduced to Union Territory..Many political leaders critically appreciated as well as challenged the decision over the abrogation of the two articles. P.N.Chidambaram warned the government that it had committed a “cardinal blunder”. He added that momentarily you may think you have scored the victory but the history will prove you and we have to wait and see whether it is victory or not.
Article 370 Gone, A new Age Awaits Jammu &Kashmir -Prime Minister Narendra Modi
Paradise Lost or Regained?
In terms of Economic development, Kashmir was 200 years behind the rest of India because of Article 370. Deng Xiaoping, Chinese politician noted that Kashmir development is in grim reality in the Metric of India’s development. Home Minister Amit shah stated that “Terrorism cannot end in the state till an Article 370 or 35A continues”.
A number of innocent lives of the Kashmiris were lost in the last decade and the defence of Kashmir against terrorism killed a number of soldiers (recent in Pulwama attack). The crucial part in the political arena is political reservation which has been denied to the scheduled tribes in the state unlike the rest of the country.
In spite of several bills proposed for the reservation, not even a single bill was passed. He further added the statement to support this decision is that there is widespread poverty in the state i.e., about 10.35% of the state population lives below the poverty line as a result of inadequate developmental activity owing to the land sale restriction which was overcome by this bold decision in a short time, could generate private investment.
It also eliminated the other limitation- children of the women marrying outside the country can now inherit property. Many other great persons like Jindal welcomed this move and he believes that it will ensure the integrity, peace, prosperity and harmony of the country. Even he appealed the government to revoke this provision at the time of Pulwama attack to prevent further attack and to strengthen the security forces of India.
At present, young people do not want “Azadi”, but an investment, modernization, livelihoods, gender empowerment and development. Thus the nullification of these Articles will ensure development in the field of tourism, education, industry which gives employment to the people.
On the other hand, there is also possible for the opposite effects of the intended one. It created political unrest both within and outside the country. But in my point of view, Kashmir has been drawn from its tragic position by the judicious calibration and placed in the better zone.
Will hypocrisy on Nehru comes to an end?
The idea of bifurcating the Jammu and Kashmir has a chequered history- which traces its origin to Dixon, an Australian Jurist selected by the UN to settle a dispute between J&K. The report known as Dixon Plan of 1950 stated that Ladakh should be given to Indian and northern areas and Pakistan occupied Kashmir to Pakistan, however, it was not accepted by India.
Among the prominent voices against this Art 370, Ambedkar was the one and he even suggested the partition of J&K was to be carried out a plebiscite in Kashmir with the real possibility that Muslim-dominated Kashmir would leave India for Pakistan
But Nehru humiliated Patel and Ambedkar in this issue. Later, when the father of Indian Constitution Ambedkar refused to draft, he approached N.Gopalaswami Ayyangar to draft the suitable Constitution for J&K. Thus Art 370 a “temporary and transitional provision” which allowed J&K to follow their own constitution, national flag and such other things- leaving defence, foreign affairs and communication but the unfortunate part of this Article was that any changes in the constitution could be brought only by the J&K constituent assembly.
Ambedkar discovered the fact that this provision creates a lot of problem despite solving the dispute. Many other eminent persons challenged “Why should a state of the Indian Union have a special status?” as it gives the wrong signal to the Kashmiris, Pakistan added to the International community.
The Nehru’s contention was that when this Article was drafted a new threat (China) has been emerging, he said that it was inappropriate to pick up the issue and compelled them to drop their demand in addition he promised that Art 370 was temporary provision and will be eroded in the constitution over the period of time.
It is forgotten that the J&K is the homogenous entity and the special status should have been gradually abrogated but it did not happen in the past 60 years and this is not the fatal error of Nehru but the political parties which ruled the country in the past.
After the Indo-China war, the Liberalist Nehru who Shift the gear towards nationalist desired to rectify the mistake done by him, miserably he passed away without doing the same. And now this unfinished task comes to an end by the bold move of the ruling government which annulled the special status of J&K and integrated with the rest of the states. I hope this heroic decision will put an end to the Nehruvian hypocrisy over the Kashmir issue.
Uniformity in all the basic matter which are essential to maintain the unity of the country– Dr. B.R. Ambedkar.
Often it is forgotten that the reason for the Kashmir problem was inclusion of plebiscite in the Instrument of accession, the Kashmir issue referred to the UN, given special status to the J&K- thus they can have their own constitution and flag, dual citizenship, can hold political office for the period of 6 years whereas in India it is only 5 year, no need to bind the precedent of SC, bar to purchase land in J&K to other people of the country and such other things.
It is considered that Nehru is the only reason for all such ambiguities in the Indian constitution and he was criticized in the Indian history whenever this controversy arises. Whereas the nullification of the special status of J&K is not only major breakthrough for the BJP political party even it is considered as the milestone achievement in Indian history. I strongly believe that it will put an end to the Nehruvian hypocrisy over Article 360 in case if it results in an intended manner.
The essay published may or may not reflect the views of Lawctopus.
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. Nirupam Roa, Paradise Lost or Regained, THE TIMES OF INDIA, August 9, 2019, at Pg.14.
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