Thus overall, all the recommendations would be fulfilling the common purpose and objective of passing resolutions with a much more peaceful and inclusive approach. NC has no right to claim "feeling sad" over abrogation of Article 370 Sajad Gani Lone It was decided by Constituent Assembly of the state of Jammu and Kashmir that, the State of Jammu and Kashmir is and shall be an integral part of the Union of India. According to the provisions of the act a woman belonging to the state would lose her property rights if she marries a person who is not a permanent resident or citizen of the state. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); (vitag.Init = window.vitag.Init || []).push(function(){viAPItag.display("vi_1872479435")}), 2022 Law Corner (Unit of Capito Legal LLP) | All Rights Reserved. The State Constituent Assembly, whenever it will be formed, would consider other matters. This lack of availability of jobs was a major problem faced by the people living in the state as they were left with little or no employment option, thus making majority of them migrate to other states in search of jobs and those who remained unemployed result in resorting to indulging in anti-national activities in order to earn a living. All rights reserved. India having signed the 1993 Vienna Human Rights Conference and Genevas Accord 1994 owes a responsibility here. Resolving the Kashmir Dispute: Blending Realism with Justice. The Pakistan Development Review 48, no. In retaliation, Pakistani armed tribesmen infiltrated J&K and occupied strategic territories, currently referred to as Pakistan Occupied Kashmir (POK). Das, Evita. ARTICLE 370. 2. More than 5,000 Kashmiri Pandits are working in the Valley under the Prime Ministers Development Package, the report said. The fear of Pakistans interference in this controversial issue with Indias restrained conciliatory approach has left the people in the valley in a situation of dangerous uncertainty. History of the Article/Why it was inserted? And with this, terrorists in Kashmir have started counting their final days." In an address to the nation on 8th of August 2019, the Prime Minister addressed the Kashmiris and promised to implement more schemes and jobs. Kashmiris have been unable to contact their relatives for the past year and remain on tenterhooks about their well-being. Government cannot be equated as such with Governor in matters involving the restructuring of the State itself. And that now Jammu, Kashmir and Ladakh were three separate segregated units. The fundamental situation could also become such that a Military Confrontation may arise between India and Pakistan, both being nuclear States. Was Kashmir Being Readied for Demographic Change Even Before Article 370 Was Scrapped? Newslaundry. Hence, if the State Legislature is not present for working, then the Parliament, the President and the Governor may act as State Legislature. Scrapping of Article 370, a temporary provision in the Constitution, has proven to be a major step towards restoring peace and normalcy in the erstwhile princely Amendment of Article 370, upto present, was a myth; but it is clear that, it can be dealt with using logistic approach and can be diplomatically modified to reality. Abrogation of the said Article has always been one of the core issues of the Bharatiya Janata Party and their decision for forceable ever since the party came to power in the recent elections. Origin And Development of The Tort of Vicarious Liability. It is permanent, unless Constituent Assembly so recommends. Indias External Affairs Minister S Jaishankar has reassured and re-affirmed the same. The New Humanitarian. Policy Analyst Syed Muhammad Ali said that Pakistans future Kashmir policy must holistically address the concerns of the Kashmiris and Pakistans security interests, besides commanding credibility in New Delhi and enjoying acceptability in the international community. Ganguly, Sumit, and Kanti Bajpai. The Myth of Normalcy: Impunity and The Judiciary In Kashmir. Pakistans two former High Commissioners to India Ambassador Ashraf Jahangir Qazi and Ambassador Abdul Basit, Former Director General Arms Control and Disarmament Branch of Strategic Plans Division Khalid Banuri, Assistant Professor Quaid-e-Azam University Dr. Raja Qaiser Ahmed and Altaf Hussain Wani, Chairman Kashmir Institute of International Relations spoke on the occasion. This may create a sense of hatred and spite which inevitably may lead to a clash in the form of terrorism. All the States, therefore, have become equivalent to each other than regular Indian Provinces. Jammu & Kashmir: Another Year After the Abrogation of Article 370 Another year has passed since India abrogated Article 370 and ended Jammu and Kashmirs special autonomous status, turning it into an annexed and federally-controlled territory. However, in October 1947 there was an armed infiltration by tribesmen from Pakistan in J&K. The Mandate was filled with loopholes, the Method used was autocratic, and the Morality behind the resolution, questionable. Further, the state has been evolving in an environment of exclusivity and separation due to special privileges granted to its citizens regarding property, employment, and residence. The Congress-JKNC split in 1977 where congress withdrew its support for Sheikh Abdullahs government this led to elections being held in July 1977 and Sheikh Abdullah was re-elected. And on the other hand, both territories would enjoy growth and development of society and the nation alongwith the rest of India. These provisions might have imparted autonomy to the state but have formed an atmosphere of apprehension and suspicion in the valley due to the deployment of military forces. Click Here to submit your article. Eid Al Adha, one of the core festivals for the people in the state, was celebrated in a sense of lockdown, unknowing and scared. In 3. The Centre explains that the revocation will empower women with the right to buy real estate and transfer property even while being married to a non- resident of Jammu and Kashmir (Lalwani, Gayner-2020). But in 1949 when the Constitution of India was adopted. Expressing reservations about the 7 member body constituted by Prime Minister Imran Khan to formulate response strategy to Indian actions on Kashmir, Amb Basit said it should have fixed time frame. Thus their intervention could take place. Scrapping of Article 370, a temporary provision in the Constitution, has proven to be a major step towards restoring peace and normalcy in the erstwhile princely state, the report said. In order to understand the origin of Article 370 it is important to understand the brief history of Kashmir, right from 1846, where a Dogra ruler Maharaja Gulab Singh bought the region of J&K from the East India Company post the Treaty of Amritsar[3]. And this cannot be done, unless State Constituent Assembly recommends to do so. FIGURE 1 The rapidly increasing number of internet shutdowns imposed by government in Jammu Apart from this, countless human rights violations have been caused in the process of passing this resolution. They are looking towards Prime Minister Narendra Modi to reclaim the part of Kashmir that has been under the illegal occupation of Pakistan for the past 72 years. Ambassador Ashraf Jahangir Qazi warned against having unrealistic expectations of support from China and US. This was followed by the commencement of the Quit Kashmir movement[4], a moment against the Maharaja. Further, it elaborates on the ugly scars of communication blockade and the subsequent human rights violations that have shrouded the valley in a veil of fear. Kashmiris continue to toil through these communication hardships despite the Supreme Courts decision in Faheema Shirin RK vs State of Kerala [1] stating the right to internet as a fundamental right. Accessed April 26, 2021. doi:10.2307/2645054. Lastly, Indias hard fought federalism is under attack after the unprecedented Kashmir decision. Kashmirs are well aware of the situation of the minorities present within India and the treatment they are subjected to. Also Read Scrapping of Article 370 of Indian Constitution: A Historical Mistake? The Indian state has consistently provided J&K with as much as it could in the fields of health, education and basic amenities while constantly dealing with surprise attacks from externally-supported armed militants and gun men. So to study the facts about the removal of Article 370 this research article analyses various aspects of removal of Article 370. The valley also ensued a restrictive settlement policy by allowing only Kashmirs permanent residents to own property. Sharma, Bodh Raj. Now, more stringent detention laws[2] could be carried out as the National Security Act would be extended to Jammu and Kashmir as well. The abrogation has led to alienation of J&Ks mainstream political parties like PDP that sought votes on the demand of self-rule. In simple words, this Article provided that except for defence, The Court laid down no limit whatever regards time or content. Sir, Article 370 has not been scrapped. Scrapping it would have needed an amendment to the Constitution. This was not done. Using the powers vested in the President the discriminatory portions were removed and the state was reorganised. I support this step and call it the right step even if delayed one. The major problem in front of India is terrorism. No. Consequently, Article 370 was inserted to the Constitution of India, which provided that the other provisions applicable to the State of Jammu and Kashmir, would be applied only with the concurrence of the State Constituent Assembly. 4 (2009): 1007-035. Article 370 is a temporary provision of the Indian constitution which grants special status to the state of Jammu & Kashmir, under part XXI of the Jammu and Kashmir will have a State Legislature Assembly and Ladakh would be a Union Territory without Legislative Assembly. The laws like Right to Information, which were not yet accepted by the State of Jammu and Kashmir, would be applicable in the territories of Jammu and Kashmir and Ladakh. There are many impacts of abrogation of Article 370 on Jammu and Kashmir and the whole of India. The instrument of accession so signed, was the one condition for the inclusivity of Kashmir within India. This move would also not impact the Line of Control with Pakistan. The move was justified by the BJP government on grounds centred around security, prevention of violence, and stopping the circulation of false rumours. The article India and the crisis in Kashmir by Sumit Ganguly (1994) elaborates on how insurgency in J&K emerged through political mobilization and institutional decay. Sharma, Saurabh. So Article 370 was known to be the permanent provision of the Constitution. Article 370 is an element of identity for the Kashmiri citizens and a carrier of diverse connotations of unity and separatism from the rest of India. Privacy Policy|Terms & Conditions|Copyright Policy|Subscribe Newsletter|Contact Us|Join Us|. The common man, in the recent past, has hit the ground on a number of occasions to protest against the targeted killings of the non-locals and minorities in the region. Use tab to navigate through the menu items. Travel restrictions bought the tourism industry to a dead end with people working in the ancillary industries having neither work nor other means of livelihood. http://file:///C:/Users/DELL/Downloads/Myth%20of%20Normalcy_Yale%20study%20(1).pdf. Kashmir Police Chief Vijay Kumar told Republic TV that post the abrogation of Article 370, the Kashmir Valley marked a significant improvement in the situation on counts of terrorism, law and order, and security. The citizens hope to raise their voices as free citizens of India and not be labelled as terrorists. Externally, Poland, UNSC Presidency has made its stance clear by stating that Delhi and Islamabad should find a solution bilaterally. It confers on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respect to -; Acquisition of immovable property in the state. This paper dwells on the societal impact of the abrogation of Article 370 and the constantly evolving social demography and legislative changes that have mystified future pathways for J&K. In 1952 post the Kashmiri leaders discussion regarding their relationship with the union of India in the J&K constituent assembly a comprehensive Delhi Agreement came into the picture which defined the relationship of the State with the Union. Next, the provisions of Article 370 are being used to scrap Article 370. The problems of normal life were further complicated by Corona virus. Post this the demand for a plebiscite was dropped and Sheikh Abdullah resumed being in power as the Chief Minister of J&K with the support of the Congress. Article 370 A Temporary Provision: Subhash Kashyap The Financial Express. Article 370 itself mandates a recommendation of State Constituent Assembly dispersed after framing Constitution of the State of Jammu and Kashmir, but did not make any such recommendation. Thus it becomes a disputed area for them if India gains sole proprietorship over the same. Security -- 2021-22 2021 was the year of adapting to a new normal after an extraordinary and pandemic-driven 202. The rationale offered for seeking abrogation of Article 370 of the Constitution of India is to remove the autonomous status of the State of Jammu and Kashmir, and to allow its full integration to the Indian Union. Women in the valley have been further repressed by military personnel deployed and are subject to regular physical and sexual violence. The centre has doled out a carrot in the guise of increased women and lower-class representation in public spheres promising a pot of gold at the end of the rainbow. So to establish relations with Jammu and Kashmir Article 370 was inserted in the Constitution of India[i]. This research article after reviewing various texts signifies the possibility to remove Article 370. Draconian military acts as AFSPA (Armed Forces Special Protection Act) have not only crushed the voices of women but has also made them a victim of sexual assault and violence. But it requires the recommendation from the constituent assembly of the state[vi]. 2019. Subsequently, the government acquired access to track all kinds of digital transactions to keep an eye on money laundering and terrorist funding creating an atmosphere of suspicion and mistrust among the populace. The governments move on August 5, 2019, helped J-K move towards peace after 30 long years of turmoil in the Himalayan region. Jammu & Kashmir was turned into a UT with A legislative (along the lines of Puducherry and Delhi NCR). WebT he abrogation of Article 370, a temporary provision of the Indian Constitution, relating to the state of Jammu & Kashmir, by the incumbent Modi Government in India has made it All citizens of India would be eligible to purchase land in the State of Jammu and Kashmir, as it is not a separate State from now onwards. This research article aimed to study facts about the removal of Article 370. If Article 370 is abrogated and such autonomy is eliminated, then it will be violation of Resolution by UNSC. The developmental initiatives that the government plans to take up, would although benefit the economy at large, would lead to a condition similar to other parts of India, like Shimla and parts of Uttarakhand, where such developmental measures, like building hotels or providing possibilities of buying homes in the state for outsiders would destroy the natural flora and fauna and atmosphere of the place. Students have been deprived of the opportunities which would have otherwise opened new vistas for them. This timeline provides a brief insight to the relationship between India, Pakistan and Kashmir, the constant strain in the relationship between them. Article 370 falls under Temporary Provisions, which make their nature essentially weak. What was more important, as many say, was the spirit of the status provided by Article 370. In an interview Shah said: "Congress leaders said in Parliament there will be bloodshed. Later in March 1948, an interim government was appointed in J&K by the Maharaja. German Institute of Global and Area Studies (GIGA), 2019. In February of 1996 India banned the JKLF and in September of 1996, assembly elections held in J&K and J&Ks National Conference by Farooq Abdullah formed the government. Normatively too, a temporary provision such as Article 370 may only be abrogated if its detractors can garner sufficient political support in the form of a constituent assembly, which has not yet been achieved. 1954: A presidential order extends several provisions of the Indian Constitution to J&Ks Constitution. The resolution was on the face of it Quasi Constitutional but deep down, Unconstitutional. This move is also said to be a means to curb terrorism. 1118 (India). The Legal Hurdles the Government Could Face: Protection of Human Rights in India: Women, Children and Prisoners. Amnesty International says the Indian Government policy in the region gives its army legal immunity for their actions, making conviction rates close to zero. Article 370 can be removed as Clause (3) of Article 370 empowers the president to declare by the public notification that provisions of Article 370 shall cease to exist or may be operated with some exceptions and modifications from the date he may specify. The uniformity and equality in womens rights was one of the structural pillars for justification of the abrogation by the Central government. Please support us by disabling these ads blocker. This in turn becomes an existential crisis for Kashmir. CTRL + SPACE for auto-complete. Kashmir is the only Muslim majority state in India. In desperation, the Hindu Maharaja accepted accession to India in return for military aid on the condition that the accession would be settled with the consensus of the residents (Ganguly-1994). Report. Secondly, it is also unclear, that if the Governor has been assigned powers to decide the intricacies of the problems in the state, then it seemingly denotes the supremacy of the central government in the issue. Through the abrogation of the said article, the government seeks to improve and build better physical infrastructure such as, housing for those living below the poverty line, availability of water and toilets in every home, provide health care facilities and build institutional infrastructure to solve the continuous paradox of floods and calamities faced in parts of the country. The Gandhian path of non-violence and peace must be adopted to ensure lasting harmony in Kashmir. It defines classes of people who are permanent residents of the state Jammu and Kashmir. India took the issue to UN Security Council which finalized a ceasefire agreement- known as the Karachi Agreement between India and Pakistan subject to a plebiscite, once troops were withdrawn from both sides. 5 (1994): 401-16. And one of them is to subscribe to our newsletter. The Bhartiya Party has long called for the end of Article 370, both in its The State was now to be bifurcated into two union territories under the Jammu and Kashmir (Reorganization) Act, 2019. The The crippled education system has pushed Kashmiri students into an abyss of unequal opportunities violating the right to equality. 2019 Islamabad Policy Institute. The agreement had called for a status quo to be maintained with respect to Kashmir. The research also takes in accounts from verified diaries and memoirs of J&K citizens either in detention or under restrictions. So at that time maharaja, Hari Singh who was a maharaja of this state to protect this state from the aggression of Pakistan asked help from the government of India. The Government of India agreed to these demands before consulting with other States. Earlier people from other states cant permanently settle here and cant purchase any property of this state. The main merit resulting from the abrogation of Article was that it will open the market of the state. Some of them are positive, rest are negative. But their attempts were foiled as the security forces acted swiftly and eliminated most of the terrorists who were involved in carrying out the attacks against innocent civilians. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. The abrogation of Article 370 meant the end of all 35A protections that were enacted. What followed was a 5-day lockdown in the State of Jammu and Kashmir. In January 1948 the issue was taken to the United Nations by India. On 26th November 1956, the Constitution was adopted and came into force on 26th January 1957, the State Constituent Assembly of Jammu and Kashmir dissolved itself and no recommendation, either for abrogation or for amendment of the Article 370 was made. Terror attacks would be reduced and peace would be established in the territories of the State of Jammu and Kashmir and Ladakh. It provides empirical data to back claims and statements. On 5th August 2019, all these provisions ceased to be operative with the abrogation of Article 370 and a full-fledged inclusion of Jammu and Kashmir into India. The study of Yale School titled The Myth of Normalcy: Impunity and the Judiciary in Kashmir provides an insightful overview of the judicial system of Kashmir. Altaf Hussain Wani shared the sentiments and concerns of the Kashmiri people on this development and said that Kashmiri people will continue their freedom struggle against the Indian occupation but expect Pakistan to increase its support for the cause. The State of Jammu and Kashmir has to be split into two Union Territories, i.e. This paper traverses through the contentious issue of the abrogation of Article 370 in Jammu and Kashmir (5th August 2019) in a qualitative and analytical manner and through secondary sources. Compare the figures; one can see the change in the situation--the situation is better on all parameters post the abrogation. Other challenges like Pakistan-sponsored terrorism, extremism, proxy war and internet ban in the state also persist. Write CSS OR LESS and hit save. Hence, the residents were living under separate laws relating to separate citizenship, ownership of property within the State, Fundamental Rights, those compared to other citizens. They consider it to be a harbinger of freedom and autonomy for Kashmiri women. [i] Narender Kumar, the constitutional law of India 1176 ( Allahabad law agency, 10th ed, 2018). Under the cover of these acts, military personnel commit heinous crimes under blanket impunity. On 5th August 2019 honorable President of India, Mr. Ram Nath kovind used his power in Article 370(1) and issued presidential order named Constitutional (application to Jammu and Kashmir ) order 2019 superseding presidential order of 1954 with Immediate effect. 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Which make their nature essentially weak the valley have been further repressed by military personnel commit heinous crimes under Impunity!: Protection of Human Rights Conference and Genevas Accord 1994 owes a responsibility here property! Provision of the Tort of Vicarious Liability, 2019 Constitution to J & Constitution!, UNSC Presidency has made its stance clear by stating that Delhi and Islamabad should find a solution bilaterally,! Are subject to regular physical and sexual violence labelled as terrorists with other States cant permanently settle here and purchase... That now Jammu, Kashmir and Ladakh were three separate segregated units a legislative ( along the lines Puducherry! Call it the right step Even if delayed one separate segregated units they consider it to be a means curb! Which inevitably may lead to a clash in the territories of the state Jammu and Article. Do so is better on all parameters post the abrogation has led to alienation of &! 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