ABSTRACT
Article 370 of India which gave Jammu and Kashmir a special status had been abrogated by the union government on 6 August,2019 and Jammu and Kashmir Reorganization Act , 2019 was passed resulting in bifurcating Jammu and Kashmir and Ladakh and forming two union territories i.e Jammu and Kashmir, the one territory and Ladakh the other and thus the supreme court has also upheld the union government action to abrogate the article 370 on 11 December , 2023 by majorly relying on the fact that the article 370 was placed with temporary and transitional provision containing in 21 part of Indian constitution. this article gives the brief historical background of how this article 370 came into existence and how it was abrogated and on what aspect the action of the union government to abrogate the article 370 was considered valid by the supreme court of India and furthermore, what people of Jammu and Kashmir expect after the abrogation of the article 370.
Keywords:- Article 370 , Jammu and Kashmir , Constitution , Abrogation , Union Government , Constituent Assembly
INTRODUCTION
The article 370 of Indian constitution gave special status to Jammu and Kashmir . This constitutional provision was incorporated in part 21 of constitution but what made to gave special status to Jammu and Kashmir were the series of event and the one event which no one in Jammu and Kashmir can ever forget is the Baramulla massacred . The man behind this heart wrenching event was the Major General Akbar Khan of Pakistan army . He took over the charge of Lashkar rebels who invaded Kashmir raped , killed and plundered in every stop of their invasion . Hundreds of Hindu , Sikh and Muslim women too were raped , killed , abducted and many were carried away to Rawalpindi ,Peshawar and other towns of Pakistan . For several days and night Baramulla only saw rape , killing , loot . It was estimated that 35,000- 40,000 residents were killed . The nightmare which children , women , men of baramulla faced can’t be forget they saw there mother, sister , wife being raped, killed and abducted . Sheikh Abdullah described the tribal invasion as
“The raiders came to our land , massacred thousand of people – mostly Hindu , Sikh but Muslim too, abducted thousands of girls , Hindu , Sikh and Muslim alike looted our property and almost reached the gates of our summer capital 1 . After seeing this massacred Maharaja Hari Singh of Jammu and Kashmir seeked the help from Dominion of India due to which he had to signed the Instrument of Accession in which the Dominion of Indian Legislature got the power to make laws on Defence , External Affairs and Communication after that Indian troops started landing on valley on 27 , October , 1947 and started TTcease fire agreement was signed in January , 1949 but what change the fate of j& k was Nehru speech on 2 , November in which he gave assurance for plebiscite in j& k after things get normal but as we all know things never got normal as Pakistan never fulfilled recommendation put on their part by UN council and till now the support they provide to spread terrorism in valley speaks volume of how much peace lover they are .
RESEARCH METHODOLOGY
This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the article of the Indian constitution . the secondary source of information like journals , website etc are used for the research .
REVIEW OF LITERATURE
The literature review provides an extensive analysis on the article 370 . Accoording to Dr. Mahendra Pal Singh , the constitutional law expert the supreme court did the write thing in upholding the abrogation of article 370 . He believed sovereignty has to be one for the country and holding two constitutions within in the same country would be difficult.
HOW ARTICLE 370 CAME INTO FORCE
The Jammu and Kashmir matter was even placed before the Constituent Assembly of India due to which after lot of discussion Article 370 was inserted proclaiming it to be Temporary , Transitional and Special Provision and thus this article which gave J&K special status was granted through Presidential Order of 1954 .
WHAT’S IN ARTICLE 370
The start of article 370 came with the disclaimer the temporary provision with respect to state of J&k .Under the Article 370 it has been clearly mentioned what are the powers of parliament and what article of Indian Constitution will apply and what not however the major outlook of Article 370 is as follows :-
Article 370
(1) Notwithstanding anything in this constitution
The provision of article 238 shall not apply in Jammu and Kashmir .
The power of the parliament is limited as –
The union government can make laws on those matter which are present in union list and concurrent list in correspond to the matters specified in Instrument of Accession from the consultation of Jammu and Kashmir .
The Parliament can also make laws on the matter mentioned in union list and concurrent list by concurrence of the government of J&K .
The provision of Article 1 and of this Article 370 will apply to J&k .
The other provision of the Article other than the Article 1 and Article 370 are applicable only if the President by the Order consult and take concurrence from J&k .
The concurrence of constituent Assembly of Jammu and Kashmir is must .
This clause gives the power to President to cease this article to be operative by public notification but only on the recommendation of constituent assembly .
However many efforts had been put forward by the past and present government to cease the operation of this article as first major step was taken in amending the article 238 in 1956 by h constitutional ( 7th amendment ) Act , 1956 in Nehru’s government and continuously amendment of Presidential 1954 Act and its amendment in 1964 which leads to the article 356 applicable to J&k thus due to all these amendments in 1954 act maximum Indian constitution was made applicable to J&K .
JAMMU AND KASHMIR CONSTITUENT ASSEMBLY STAND
The stand of constituent assembly of Jammu and kashmir was quit clear through the Article 3 which states that the state of Jammu and Kashmir is and will be a part of India 2.and the Article 5 which extend the legislative and executive power of state assembly and its assurance had been made through Article 142 of J&k constitution .
REVOCATION OF ARTICLE 370
On 5 August , 2019 the then President Ram Nath Kovind issued the Presidential Order (C.O 272 ) amending the Article 367 the amendment was the reference to constituent assembly in Article 370 (3) was changed to Legislative Assembly .
Whereas on 6 August through C.O 273 all clauses of Article 370 ceases to operate and on 9 August Jammu and Kashmir Reorganization Act , 2019 was passed bifurcating the state of Jammu and Kashmir into two Union territories i.e Jammu and Kashmir and Ladakh .
UPHELD THE UNION GOVERNMENT ACTION TO ABROGATE ARTICLE 370
Supreme court bench comprising of Chief Justice D.Y. Chandrachud , Justice Sanjay Kaul , Justice Sanjiv Khanna , Justice B.R. Gavai , Justice Surya Kant on 11 December , 2023 upheld the union government action to abrogate the Article 370 by relying on the fact that the article was placed with Temporary and Transitional provision contained in Part 21 of Indian constitution and the Honourable Court also considered the validity of the process by which Article 370 was abrogated and infact bench held that the constitution of Jammu and Kashmir was always subordinated to the constitution of India .
CASES REFERRED FOR DECISION BY SC
Prem Nath Kaul vs Union of India (1959)
S.R.Bommai vs Union of India (1994)
Maqbool Dammo vs State of Jammu and Kashmir (1972)
Vishaka vs State of Rajasthan (1997)
CONCLUSION
The people of India specially the people of Jammu and kashmir are eagerly waiting for the better result after the abrogation what India wants is the happy , wealthy , developed , terriorist free Jammu and Kashmir and ladakh . what we hope and wish is the peaceful environment which all our Indians deserve .
Author :- Ananya Duggal
College – Dogra law college, Jammu