Abstract:
The Presidential order passed on 5th August 2019 which applied all the provisions of constitution applicable on the state of jammu and Kashmir has been able to seek everyone’s attention in the country . Many people have been in the support of this decision while the ones criciticizing it are also quite large in number. The major criticism is done for the approach which has been taken by the government in passing this order . People condemning it claims that the presidential order is unconstitutional. In this paper all the aspects which are related to this change in the northern state of the country are discussed in detail so that a conclusion can be drawn that wheather these changes were required to be done or are they just have been made for the political benefits. This write-up explains the significance of article 370 means what all differences has been drawn out by this article has this article made country within a country ? We shall find this out in the article . Does special privileges have been actually a curse for Kashmir? This question will also find an answer in the paper. After answering to these questions this article will throw some light on the development of the jammu and Kashmir through these years and what has been the role of article 370 in it. Also it tries to explain that whall all impacts does this presidential order bring with it. The positive changes which it can bring have been highlighted in the paper. Last but not the least it talks about the most important question among all that wheather the presidential order which made all the provisions of Indian constitution on jammu and Kashmir is unconstitutional . Whether the mockery of constitution has been made in passing this order?
Introduction:
Since Independent Jammu and Kashmir has been the bone of contention in the Indian Political system.The muslim majority area of Kashmir in some or the other way contradict with india’s notion of secularism and brotherhood. Back in October 1947 when Pakistani armed militants infiltrated Jammu and Kashmir then Hari Singh signed “Instrument of Accession “ with India in which he handed over control of defence , communication and foreign affairs to India. In 1950 Article 370 accorded special status to Jammu and Kashmir . The special status to Jammu and Kashmir enabled it to behave in such a manner as if it is an independent country despite being an integral part of India as mentioned in Article 1 of Indian Constitution. The law making power of Indian parliament for the state of Jammu and Kashmir was restricted .This article conferred the power on Jammu and Kashmir to have a separate constitution to posses a separate flag and complete control over the administration of the state. It played a role of havoc and created a situation of chaos in a country who very proudly calls itself a federal state and at the same time right to equality is one the fundamental right in india. This all was continuing for a long time but it overnight became the topic on top of the table when on 5th august 2019 the special status of Jammu and Kashmir was taken away from it. It bamboozeled the mind of the people who took the special status of Jammu and Kashmir for granted . The presidential order passed on 5th August 2019 overruled the presidential order of 1954 and made all the provisions of Indian Constitution applicable to Jammu and Kashmir. Now the question comes that wheather this presidential order which abrogated article 370 is unconstitutional ? Whether or not the mockery of constitution has been made in this whole scenario ? This Research Article is a deep analysis of the presidential order which made provisions of Indian constitution applicable on jammu and Kashmir . content in this paper will throw light on the issue that wheather president was well within its powers while passing the order or not.
What is the significance of article 370 ?
This article gives the state of jammu and Kashmir a specific amount of autonomy . It had its own constitution , power to make laws and had its separate flag as well. Because of the instrument of accession of 1947 with Indian government Kashmir no more had control over its defence, foreign affairs, and communications. Indians who were outsiders or were not the residents of Kashmir were not allowed to purchase property in Kashmir or settle there. By the virtue of article 370 centre has no power to declare emergency in jammu and Kashmir. If we talk about article 35(a) then it gives a discretionary power to Jammu and Kashmir assembly to decide the question that who are the permanent residents of the state . It provides permanent residents with multiple special rights and privileges be it for the employement under state government or for buying any property or settling in the state . Moreover state legislature has power of imposing restrictions regarding the above discussed points on the persons who are not carrying identity of being permanent residents of the sate . Most important among all these is the guarantee which is being provided by this article it says that any act which comes within the ambit of this article cannot be challenged for the violation of constitution. These all powers which have been granted to the state has resulted in many problems the major among them is the threat to the unity of the country. Also powers given to the state under article 370 has resulted in violation of basic human rights. Welfare of the society has suffered a lot due to this. Discrimination on the basis of gender has also been the major issue under article 35(a) the woman who marry any person outside the state at that very moment loses right in the property.
How article 370 has effected the development of the state of jammu and Kashmir ?
The most important factor behind the growth of any state is the education which is being provided to the students of that state. Because that helps in developing the mind of an individual and at the same time increases the level of understanding of things , for many education is key to get a job and secure one’s life . But the key that is education is unable to find a lock in other words the talent is unable to find an opportunity in the state of jammu and Kashmir. Because the natives of the northern state ofcourse educated ones are not allowed to appear in the examination of any other state. Which ultimately results in shortage of vacancies and their chances of getting employed decreases by and large. There is very famous saying which goes like Health is Wealth. But the people of Jammu and Kashmir have been deprived of this wealth and the reason for this deprivation is the health sector facilities prevailing in the state . These difficulties are just the “tip of an iceberg” . There are a lot of problems which this beautiful state has gone through. In the 21st century which is all about connecting to each other be it for business purposes or for social affairs, this state has been put in such a situation where it doesn’t even have access to the high speed internet, no regular water supply ,no 24 hours of electicity . Lack of these basic amenities has been the major major issue. This all happened because the government of india was not allowed to make the laws for the state. Legislature of the state made their laws on their own which ultimately led to all these mishappenings. It requires no rocket science to understand this simple thing that article 370 has been the biggest hindrance in the development of the state . It has not allowed democracy to be fully implemented in the state and provided a luxury to corruption to reach its highest potential as a result people of Jammu and Kashmir till present date have not been able to feel the development despite being an intregal part of India which is undoubtedly one the fastest growing developing nations in the world.
What will the impact of abrogation of article 370 on Jammu and Kashmir ?
With the abrogation of article 370 Jammu and Kashmir will now have brighter chances of growth in each and every sector. Specially in tourism.The state is termed as “ heaven on earth” because of its geographical location. Jammu and Kashmir has always been India’s favourite tourist destination though many people feared to visit there but still it has been praised by all for its beauty. The state with so much of potential to generate tourism can be the centre of attraction for the whole world after the abrogation of article 370. And with tourism comes a bunch of oppurtunities as far as employement is concerned . Be it for transportation sector, hospitality industry and for many others as well. And it is ofcourse a no brainer that more tourism will give a boom to the economy of the state. This was about tourism but what changes will it bring when it comes to the basic amenities ? Definitely it will have a positive impact on capacity of state to provide its residents with basic needs. This will open the doors for private universities to establish their institutions in the state . Which will eventually help the kashmiris in multiple ways first of all it will help in providing their people with quality education and another advantage which it will bring with it will be the generation of employement . Another big change which is clearly visible through naked eyes is the change in the health infrastructure of the state . There is not even a single big private hospital in the state and we all know the reason behind it but with this abrogation which ultimately will result in fear free environment . There are very higher chances that big bulls in the health sector will be looking to establish their hospitals in the state otherwise people had to move to Chandigarh and other nearby cities . But with the establishment of hospital in the state the residents will now be able to live with much ease. Despite all these changes there is one change which is a major breakthrough and an eye opener for those who say that abrogation of article is done for just name sake. Earlier in Jammu and Kashmir women who married to a man who belonged to any other state than Kashmir than they at that very moment lost their rights in the property . But with the srapping of the article 370 article 35A has automatically become ineffective which caused this discrimination . Now women of the state stand at an equal footing with men of the Jammu and Kashmir , now onwards even if they marry any person outside their state they will not forfeit their right in the property.
Whether the presidential order which made all provisions of Indian constitution applicable on jammu and Kashmir violate the constitution of India?
The decision of President which made all provisions of Indian Constitution applicable on Jammu and Kashmir has been criticized by many on multiple grounds. But the grounds taken for criticizing this decision got defeated on the face of it. First major argument which gives strength to the presidential order is the language of the marginal note of article 370. It clearly describes it as a temporary provision .Now, many will argue that a marginal note cannot be the deciding factor as far as the applicability of any article in the constitution is concerned , but this statement fails to prove its point because of a judgement of honble supreme court in this regard in the case of (Western India Theatres Ltd. vs Municipal Corporation Puna ) which clearly stated that if the language of the article is uncertain and unambiguous as in the case of Article 370 then the marginal note of the particular article can be referred to. The other ground which is often being taken by the people who oppose the presidential decision is that 370 has gained a permanent status for it has been in use for so long. But their argument is more of a naïve one because constitution is an organic statute its constitutional provisions are elastic in nature . also the first Prime Minister of India Pandit Jawaharlal Nehru himself made it clear that argumument of permanency of any provision in the constitution of india does not stand any chance to win when he said that “ while the constitution was meant to be as solid and as permanent structure it could be , nevertheless there was no permanence in the constitution and there should be a certain flexibility,otherwise it would stop the Nation’s growth . The argument of the people claiming permanency of Article 370 gets completely shattered when we look at the views expressed by the chairman of drafting committee of the constituent assembly Dr B. R. Ambedkar while dealing with draft Article 25 of the Indian Constitution , therefore when such important provisions can’t claim their permanency in the Constitution then how can the claim of considering Article 370 as a permanent provision be justified. Now as we are moving towards the business end of this write-up let us look at the language of the Article 370(3) as stated in the Indian Constitution “ The president may , by public notification , declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify” :
Provided that the recommendation of the constituent assembly of the state referred to in clause (2) shall be necessary before the president issues such a notification.
By reading the reading the language of this provision one thing is very clear that has constituent assembly has a very major role to play as far as repealing or modification of this provision is concerned but the irony in the situation is that constitutent assembly got dissolved back in 1956. Now in order to deal with this situation help of Article 367 was taken it was amended and sub- clause (d) was added to clause (4) of Article 367 which reads as -
(d) In proviso to clause to clause 3 of article 370 of this constitution, the expression constitutent assembly of the state referred to in clause (2) shall read legislative assembly of the state.
By reading sub clause (d) of clause (4) we can conclude that legislative assembly from now will be construed as constitutent assembly . Now the major role which we discussed earlier rested with constituent assembly with this amendment transferred to the legislative assembly . the recommendation of legislative assembly now will be of utmost importance as far as repealing and modification of Article 370 is concerned .
But as we all now that Jammu and Kashmir was under a presidential rule under Article 356 of the Constitution. And as per Article 356 at the time of presidential rule in the state all the power of state legislature gets transferred to parliament. Therefore, the presidential order dated August 5 , 2019 on recommendation of legislative assembly(parliament for the time being) is constitutionally valid.
Conclusion:
In this write-up the northern state of Jammu and Kashmir has been discussed as a whole . The plight of the people in the state, the stage of development in the state , the hindrances in the development have also been discussed . All those scenarios have also been discussed which would have been possible if the Indian government had authority to make laws for the state instead of the state legislature. After reading this article the conclusion which is drawn gives you mixed feelings. On the one hand it makes one feel the plight of the people of Kashmir, then on the other hand it gives a chance to feel happy for the people of that state . The people of kashmir have gone through a lot of difficult times when despite being part of the fastest growing nation in the world they have been deprived of the development . The basic amenities or any other thing the state has not been served what it deserved. From hospitals to colleges and from tourism sector to all other sectors of employement generation this state lacked to reach its highest potential . But as the saying goes that “ Time keeps on changing” and the exact happened for the state of Jammu and Kashmir on 5th August when president of India passed an order through which all the provisions of Indian Constitution made applicable to the state. This decision changed the destiny of the Kashmiris. It has the potential of changing the life of Kashmiri people. This will open new doors for the development of the state . but whenever anything good happens there are always some people who just cannot digest it. The similar people were those who cricized the decision of president , they said that the presidential order is unconstitutional . But the claims of such people have been shattered when it got proved that president was working well within its powers when he passed this order . Hence, the presidential order was constitutional.
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