Copyright © 2020 - Ex Gratia Law Journal

Abrogation Of Article 370 Of The Indian Constitution

Introduction

Article 370[1] of the Indian Constitution focuses on the special status granted to the state of Jammu & Kashmir. Earlier, this section was introduced in the Indian Constitution on a temporary basis. There were only three subjects under which the Union of India could introduce the state emergency or financial emergency in Jammu & Kashmir. India can impose emergency only based on communication, defense and external affairs. The main focus of this article is on whether the revocation of Article 370 from the Indian constitution is valid or not. There were both affirmative and negative arguments. As per the affirmative views, since Article 370 was introduced temporarily, it is valid to remove it. On the contrary, few forwarded arguments that,  in case Article 370 is repealed then the claim for a plebiscite will be more fatal.

Whether Revocation can be affected or not?

According to Article 368 of the Constitution of India, it is possible to repeal Article 370 through a Constitutional Amendment, with the condition that the amendment does not violate the basic foundation of the Constitution. The answer to the question of ‘Whether Article 370 can be repealed or not’ is in the negative. Though the power has been vested in the President to alter or revoke Article 370 of the Indian Constitution by issuing a notification, in order to do so, the President is required to have the suggestion of the Constituent Assembly of Jammu & Kashmir. However, as the Constituent Assembly was not in existence, there is no question regarding the existence of that power. It can hence be concluded that there is no balanced view on whether the amendment would be effective or not.

Brief of Article 370

Article 370 was introduced in 1954 by the order of the President of India. Jammu & Kashmir, enjoys the special privilege of having a separate flag, constitution, dual citizenship and control over the internal management under Article 370. The Union of India obtained dominance over Article 370 because the separate Constituent Assembly established for Jammu & Kashmir ceased to exist on 25th  January 1957. Although Jammu & Kashmir was a part of India, Article 370 and 35A[2]  provides  that  the  citizens of the State of Jammu & Kashmir will be governed by  separate laws of citizenship, Fundamental Rights and property ownership in comparison to Indian citizens. The Indian citizens of other states are prohibited from purchasing any property or land in Jammu & Kashmir by virtue of Article 35A and 370.

Are you looking for this?  Erosion of Article 370 and the attitude of the Supreme Court

Abrogation of Article 370

After a long wait of 71 years, no progress was seen by the Indian Government towards the progress of Kashmir in spite of spending huge funds. There was no signs of improvement concerning the employment of the youth, and in contrast, there was an increase in terrorism and terrorist activities. The State Government had shown utmost negligence towards Ladakh.

Being disgusted by the working of the State Government and the political parties who were suspected of helping terrorists, the Indian Government on 5th August 2019 abrogated the special status enjoyed by Jammu & Kashmir in the Indian Constitution which was passed in the Parliament and received the assent of the President. So, as per this order, all the articles of the Constitution of India will be applied to Jammu & Kashmir.

Further, the Indian Parliament enacted an Act named “Jammu & Kashmir Reorganization Act[3]. This Act came into force on 31st October 2019. The Parliament as per this act divided Jammu & Kashmir into two Union Territories that is, Ladakh and Jammu & Kashmir.

Impact of Article 370 on Stability and Growth

  1. Education facilities: The Indian Government is now capable of establishing educational institutions in the state of Kashmir to provide better learning.
  2. Resettling of Hindu Minorities: By repealing Article 370, the Indian Government assures Kashmiri Pandits who are desirous of going back to their homes.
  3. Restraint on terrorism: Taking the shade of Article 370, many political parties used to help activities of terrorism either directly or indirectly. Now, with the deletion of Article 370, the action against persons involved in terrorism can be taken to mainstream them into society.
  4. Equality: Now, in the Union Territories of Jammu & Kashmir and Laddakh, Indian Constitution will be applicable and the minority section will be treated equally to the majority Muslim section.
  5. Abolition of apprehension of Triple Talaq: Due to the deletion of Article 35A and 370, the Constitution of India will be applicable. Now, the Muslim women in Jammu & Kashmir will have the same rights against triple talaq as available to Muslim women of other states.
  6. Rapid Development: In addition to the funds provided by the Union Government to Jammu & Kashmir, they will also have the availability of private investments and PPP model.
  7. Most advantages to Kashmiri women: Till now, women in Kashmir were not given the fundamental right to property. The revocation of Article 370 makes sure the women do not lose their right to property even if they got married to the Indians of any state.
Are you looking for this?  Farm Bills 2020: An Analysis

5th August 2019 becomes historical: Repealing of Article 370

On 5th August 2019, a bill was introduced in the Parliament by the Home Minister, Amit Shah. The bill proposed to repeal Article 370 and 35A that provided special status to Jammu & Kashmir and also aimed to divide Jammu & Kashmir into two Union Territories namely, Ladakh and Jammu & Kashmir.

As per the opinion of Amit Shah, this bill was introduced to correct the mistake that was done 70 years ago. He further said that the revocation of Article 370 will be beneficial for the overall development of three regions- Ladakh, Jammu and Kashmir.

The Lok Sabha passed this bill by the majority of two-third votes and also received the assent of Indian President. The decision of abrogation of Article 370 was supported by the majority of Indian people and political leaders. So finally, Article 370 has been repealed.

Conclusion

Apart from having positive impacts from the abrogation of Article 370, there are a few negative impacts as well. Indian companies will take a lot of time to invest in Kashmir due to safety issues. Though the division of Jammu & Kashmir into two Union Territories has favored Ladakh in the development, Kashmir has faced the problem as it has lost its full-fledged Statehood.

Are you looking for this?  Right To Consumption of Alcohol under Article 21

Further, with the revocation of Article 370, the Union Government must make sure that the funds are used adequately and are not used merely by few powerful families. It is the time to provide appropriate interpretation to the provisions of the Constitution of India in accordance with the intention of the framers of the Indian Constitution.


[1] The Constitution of India 1950: Art 370.

[2] Article 35A incorporated in the Indian Constitution in 1954.

[3] Jammu and Kashmir Reorganization Act, 2019.


Cite this article (The Bluebook 20th ed.)-

Shivani Bisht, Abrogation Of Article 370 Of The Indian Constitution, Ex Gratia Law Journal, (August 29, 2020), https://exgratialawjournal.in/blawg/constitutional-law/abrogation-of-article-370-of-the-indian-constitution/.

Print Friendly, PDF & Email

Author

Shivani Bisht
Student - Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur