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Article 370 & Related Issues: Abrogation of Article 370- Complex but Essential


INTRODUCTION

The Republic of India was reorganized into states on the basis of languages. However, Jammu and Kashmir, which comprised of three completely different ethnic and linguistic group, remained untouched, which not only turned disastrous for India but also to the culture and people of Jammu and Kashmir (J&K). India and Pakistan have been fighting over the land of Kashmir for decades and finally their fight has manged to reach a standstill. Recently, Article 370 has come into the limelight due to the news of it being scraped off and in the course of that Jammu and Kashmir will be treated as union territories of India.


HISTORY OF ARTICLE 370

To understand why the issue of Article 370 being scraped off is becoming such a debate, the reason of its existence is to be understood first. The conflict arose once India was gaining its freedom whereby J&K was supposed to decide whether or not they want to be a part of India or a part of Pakistan or if they require to be an independent state all together? This was referred to as the “Lapse of Paramountcy”. Maharaja Hari Singh wanted for J&K to be an independent state but Mountbatten felt there would be great dangers connected to the protection of the state then. He went on to debate with maharaja that India wouldn't raise problems if J&K were to accede to Pakistan however, they need to decide before 15th of August. However, once India was gained its independence, J&K had nonetheless not determined whether it wanted to belong to the dominion of India or Pakistan. it was very evident that Pakistan needed J&K at any value and thus began to surround the borders of J&K. maharaja Hari Singh still failed to realise the gravity of matters if Pakistan invades J&K. Sheikh Abdullah, questioned the prince as to why there was a majority of Hindus within the government? He stood by India right along and led individuals to believe secularism. In 1946, he started a “Kashmir chodo andolan” against the prince and was in remission for the same. In 1947, Jawaharlal Nehru discharged him as India required his support. maharaja was insisting upon independence of the state and did not wish to accede to either India or Pakistan. however, Mohammad Ali Jinnah was against independence.

Eventually India and Pakistan accepted U.N. proposals and ceased fire. India withdrew its troops from all the areas it had occupied. Those areas are until date observed as “India-occupied Kashmir” by Pakistan and therefore the parts that had been occupied by Pakistani troops is named as the “Pakistan-occupied Kashmir” by India. The cease fire line has been termed as “line of control”. There have been three major wars between India and Asian nation particularly Indo-Pakistan war 1947 also known as first Kashmir war, Indo-Pakistan war 1965 and therefore the Indo-Pakistan 1999, popularly referred to as “Kargil war”.

SCOPE OF ARTICLE 370

Article 370 is a special provision with regards to Jammu and Kashmir, hereunder, J&K, that lays down specific laws to manipulate certain aspects of the state temporarily. the foremost vital side of this provision is that it's a “temporary provision”. According to the instrument of accession signed by maharaja Hari Singh on twenty sixth October 1947, the matters relating to defence, external affairs, communications and other ancillary matters like election to the Dominion legislative assembly subject to the provisions of the Act, offences against laws and inquiries and statistics regarding with the sooner mentioned matters and jurisdiction as well as powers of all courts with respect to above mentioned matters, shall be matters that shall be beneath the purview of the Indian legislature or the dominion legislature and in such matters it shall have the facility to form laws.


Back then, in 1950, it had been not clear on how the relationship between India and the State of J&K may be due to Pakistan trying to require over the State and also the Ruler of the state desirous to be an independent state. However, once the instrument of accession it became robust to claim the complete state as a part of India due to Pakistan’s intrusion. Therefore, Article 370 exists so that the constitutional position of the state through Indian Union may be amended as and once there is a necessity to do so without facing a lot of problems.

APPLICABILITY OF THE INDIAN CONSTITUTION ON JAMMU AND KASHMIR

Jammu and Kashmir have its own Constitution that lays down the framework of the government of the State separate from the Constitution of India. it had been adopted on seventeenth November 1956 and came into effect on 26th January, 1957. The Indian Constitution is not applicable on J&K excepting a few provisions due to the special standing given by Article 370. The Directive Principles of State Policy from the Indian Constitution shall not apply to the State as a result of they have their own goals and directions for their Government. the basic rights guaranteed underneath Indian Constitution shall additionally not be applicable to their Constitution as they need their own elementary rights together with Right to Property that has been quashed from Article 19(f) within the Indian Constitution. even so, specific provisions of the Indian Constitution shall be applicable onto the State. Article 33 of the Constitution cannot be applicable to the state however as per Article 370(1)(c) Article 1 that talks regarding the name and territory of the union, includes States that are a vicinity of the first Schedule that successively includes Jammu and Kashmir. Hence, Article one and 370 of the Constitution shall apply to the state. The special standing given to the State has the subsequent characteristics:


1.) J&K has a higher measure of autonomy and power compared to other States in India.

2.) The Centre’s jurisdiction in J&K is proscribed compared to its power in other States.

• The State high court has been given power along with the Supreme Court of India to issue writs for the enforcement of the Fundamental Rights. this is often similar to the ability given to the High Courts below Article 226 however the distinction is that the writs can be issued just for enforcement of fundamental Rights and no other purpose.

Since J&K has their own Constitution, the provisions concerning State Governments in India i.e. legislature, executive and High Courts do not apply to the State of J&K. There are only a few exceptions to the present regarding the High Courts:

• The Judges of the State high court is aloof from office just like the Judges of different High Courts.

• Restriction on retired high court Judges to plead and act before any Court or authority except the Supreme Court and other high courts apply to the Judges of the State High Court.

• A judge is also transferred to or from the State high court after consultation with the Governor. • The State high court has been given power along with the Supreme Court of India to issue writs for the enforcement of the Fundamental Rights. this is often similar to the ability given to the High Courts below Article 226 however the distinction is that the writs can be issued just for enforcement of fundamental Rights and no other purpose.

RECENT CHANGES IN ARTICLE 370

When the decision was finally made that Article 370 will be abrogated there were some mindboggling questions Hon’ble home minister Amit Shah asked, first and foremost he began with a question where he asked, who is responsible for the death of the 41,849 people in the constant bloodshed through the years in J&K due to radical terrorism sponsored by Pakistan if not Article 370?

He then asked the people who were in support of Article 370 for the sake of history that how it is possible to not move on from the past for the benefit of the very people of J&K solely because we had a history? He also mentioned how the people who came from Pakistan during partition and settled in J&K never got citizenship and couldn't become even a counsellor including our former Prime Minister Dr. Manmohan Singh.


He emphasised on lack of development, absence of right of education, health, road and infrastructure and how the article 370 was anti SC/ST and anti-women

He also mentioned how in the year 2011-2012 the Prime Minister gave Rupees 3683/- per person all over India and Rupees 14255/- per person in J&K and in 2017-2018, Rupees 8027/- per person all over India but Rupees 27358/- per person in J&K and still there was no betterment in the living condition of people of J&K because of the monopoly enjoyed by three families in J&K due to presence of Article 370.

CONCLUSION

With this, we would like to end our article by stating the fact that Article 370 is nothing but a hurdle and its removal will benefit India and the people of Jammu and Kashmir from every direction.


Author Details: Chandana Pradeep

The views of the author are personal only. (if any)


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