Abstract
This research paper digs deep into the background of Article 370 abrogation while assessing its consequent human rights implications. Article 370 has been both the bane and boon of the state of Jammu and Kashmir. This paper analyzes the plight of human impact before & post-abrogation while analyzing the constitutionality of the scrapping of Article 370. It aims to highlight the human toll surrounding territorial disputes and cross-border aggression.
The evolution of Article 370 has been eventful with political victories and negative human atrocities. While the constitutionality of Article 370 can no longer be debated on legal grounds, the shortcomings of the abrogation will always face the agony of the invasion of fundamental rights from the citizens of J&K.
Keywords
Article 370, Jammu and Kashmir, Abrogation, Human Rights Kashmir, Article 35A, Fundamental Rights.
Introduction
The British colonization of India has been the root of many national concerns. The departure of British rule from India did no less damage than their advent. One of the many concerns has been the irrevocable damage to the sovereignty of the state of Jammu and Kashmir. From the moment of independence from the British forces, the state of J & K has been suffering the torment of territorial dispute between India and Pakistan.
The once princely state has been under the wrath of an unresolved territorial issue between two neighboring countries. Every government in power in both territories as well as in the state of J & K have tried their hands at seeking ownership of Kashmir. It is recently, that the Government of India has put an end to this year-long battle at least on the records. On the 5th of August, 2019 the Prime Minister of India declared the abrogation of Article 370.[1]
Article 370 of the Constitution of India has been both the boon and bane of Jammu and Kashmir. The applicability of Article 370 may have been a boon to the people of J & K but only under the disguise of numerous exploitation of their leaders. Though the abrogation of Article 370 has put rest to the sovereignty of Kashmir belonging to India it has had its fair share of implications on the human rights of the people of Kashmir.
The abrogation of Article 370 was preceded by a Presidential Order that brought into force the application of the provisions of the Constitution of India on the State of Jammu and Kashmir. All these major legal changes in the region have implications on the natives of Jammu and Kashmir. In the wake of the victory of Kashmir falling into Indian governance, it is significant to understand the plight of the people of J & K adjusting to the new change in governance and the dawn of advantages and consequences.
Research Methodology
The research methodology adopted is bifurcated into the following:
- Understanding the historical context of the evolution of Article 370 by delving deep into the root cause of events.
- Legal analysis of the elimination of Article 370 while simultaneously verifying its constitutionality.
- Research of Articles voicing the opinion of the people of Kashmir.
- Articulating the findings into a constructive chronology of events and stating the consequential human rights implications of the same
Review of Literature
“Human Rights in Kashmir: Violated or Restored”, International Journal of Policy Sciences and Law – This Article thoroughly assesses the human rights of the citizens of J&K while also analyzing its SDG-Related Human Rights issued by the UNHRC.
“Article 367 An Aid To Understand the Constitution or a Tool to Amend It?”, cjp.org.in- This Article analyzes the positive and negative power of Article 367 on the Constitution.
Historical Overview of Article 370
India gained its independence from British rule on 15th Aug 1947. The historical background of Article 370 goes back to the division of British India into India and Pakistan. One aspect of the partition was that according to the Britishers, the princely states of India could either choose accession between India or Pakistan or remain an independent state. The state of Jammu and Kashmir was one of the states that chose to remain an independent state.
Many princely states signed the instrument of accession ( hereinafter referred to as ‘IOA’) and ceded accession to India. The then ruler of Jammu and Kashmir Raja Hari Singh was indecisive on signing the IOA with India. It was in October 1947, under the suspicion that Kashmir would eventually sign its accession to India, Pakistan initiated an attack on the state of Kashmir to annex it. It was under these dire circumstances that Raja Hari Singh requested India’s protection against Pakistan. India agreed to provide protection against Pakistan in exchange for Raja Hari Singh signing the IOA on October 26, 1947; thereby confirming Kashmir’s accession to India. The accession was followed by a war between India and Pakistan.[2] The matter was taken to the United Nations which put forth a resolution. It contended a ceasefire and proposed that the state of Jammu and Kashmir should ascend to either Pakistan or India, overlooking the IOA already signed.
To fulfill the United Nations’ Resolution about a referendum, India put forth the proposal that J & K make their own constituent assembly and design their own constitution. India maintained that till the time the constitution of J&K was made, it would add the temporary provision of Article 370 for the state of Jammu and Kashmir in its Constitution. On May 27, 1949 as per the terms of the IOA signed between India and Kashmir, Article 370 was added to the Indian Constitution.
According to Article 370[3] of the Indian Constitution :
- Only Article 1 and Article 370 of the Constitution of India shall be applicable on the state of Jammu and Kashmir:
- As per the Instrument of Accession signed between India and the state of Jammu and Kashmir, The Union government of India can only make and govern laws pertaining to communication, defense, and external affairs while the rest of the laws would be made and governed by the legislative assembly of J & K.
This clause also said that if any other provisions of the Constitution of India were to be applied to J&K by the Indian Parliament, it could only be introduced by a presidential order with the concurrence of J&K’s state government.
- Article 370 can be declared ineffective anytime by the President by a presidential order with consultation and concurrence of the J&K constituent assembly.
Post Article 370, the Presidential Order 272 of 1954 was introduced. This order added many provisions of the Indian constitution to the Constitution of J&K. The Constitution of J&K was made on November 17, 1957, and came into force on January 26, 1958. With this, the constituent assembly of J&K came to cease.
Legal Analysis of the Abrogation of Article 370
Provisions from the Constitution of India were gradually added to the Constitution of J&K by way of the 1954 Presidential order until the year 2019. The occurrence of many political events in the state of Jammu and Kashmir subsequently resulted in a constitutional breakdown. As a result, a proclamation was issued by the Governor of Jammu and Kashmir under section 92 of the Constitution of Jammu and Kashmir[4]. President’s Rule was imposed in the state of Jammu and Kashmir after 22 years.[5] This meant that the governor would be ruling the state of Jammu and Kashmir for the next 6 months while assuming the powers of the state government.
The President’s Rule in the state of J&K was extended owing to unrest. The constitutional scenario in J&K had changed. Under Presidential Rule, the state government of J&K was suspended so the Governor assumed the powers of and represented the state government and the Indian Parliament assumed the powers of the state legislative assembly of J&K.
During this period, the Indian Parliament now acting as the state legislative assembly of the state of J&K made proposals for replacing the Presidential Order of 1954, under which several amendments had been made, with the Presidential Order of 2019. On 5th August 2019, the Government of India issued the Presidential Order (CO 272) of 2019[6] under Article 370 (2) of the Constitution of India which replaced the Presidential Order of 1954. The Constitutional Order (272), 2019 order stated that all the provisions and amendments of the Constitution of India would now apply to the state of Jammu and Kashmir as it does to all the other states of India. The Government of India complied with Article 370 of the Constitution of India as the Presidential order was issued with approval from the state government and state legislative assembly of J&K – Governor of J&K and the Indian parliament under Presidential Rule respectively.
Lastly, The government of India announced the abrogation of Article 370. This declaration complies with clause (3) of Article 370 which states that it is a temporary provision that can be declared ineffective by the President with the consultation of the Constituent Assembly of J&K. The Presidential Order of 2019 (CO 272) also added a new clause to Article 367[7] of the Constitution of India. This clause contained the provision of interpretation of the Constitution. Since the constituent assembly of J&K ceased to exist when the Constitution of Jammu and Kashmir came into force, the Indian parliament while assuming the power of the state legislative assembly of J&K interpreted the definition of constituent assembly under Article 367 of the Constitution of India.
Article 370 was meant to be a temporary provision. This could be verified following –
- J&K’s accession to India by way of signing the Instrument of Association
- The Constitution of the state of J&K itself states that it is an integral part of India[8]
Thus, Article 370 was eliminated constitutionally.
Ramifications of the Abrogation of Article 370 on Human Rights
The elimination of Article 370 opened a plethora of Indian constitutional provisions to the natives of Jammu and Kashmir. It might seem that access to these provisions might have made the lives of the Kashmiri citizens easier, but the abrogation does have its share of implications on the human rights of the citizens.
The history of human rights in Kashmir is multifaceted. The citizens of Kashmir have been prone to various atrocities in the disputed state of Jammu and Kashmir. The people of Kashmir have often been pawns in the territorial dispute between Pakistan and India. Many Kashmiris have been brainwashed into committing territorial activities in the name of religion or independence of their state.
Extensive engagement of armies on the line of control often affects the citizens as they live in constant fear of cross-border aggression. This leads to events of lockdowns or communication shutdowns in several regions from time to time by the government. Such situations degrade the quality and convenience of lifestyle for many citizens. Increased Killings of Kashmiri Pandits in the region also led to many of them leaving the valley in order to save their lives.
In the Presidential Order of 1954, Article 35 of the Constitution was added to the Indian Constitution. This article aided Article 370.[9] Under Article 35, the legislative assembly of Jammu and Kasmir couldn’t identify residents as permanent residents. This would help them buy land, get into jobs, and settle. However, this provision was subjected to gender discrimination. A certificate recognizing permanent citizenship of Kashmir granted to women would only be valid till their marriage. The certificate would have to be re-issued after marriage and would cease if the woman married a non-Kashmiri[10].
The human rights implications post-abrogation of Article 370 couldn’t be said to entirely eradicate the plight of the Kashmiri citizens. To ensure the swift implementation of the Presidential Order of 2019, several Kashmiri leaders were detained in their homes. A complete lockdown took place with a communication shutdown.
Post the abrogation, the provisions of the Constitution of India weren’t equally applied to the Kashmiri citizens. Only the permanent citizens of Kashmir could buy lands or houses in Kashmir as opposed to the citizens of other states of India. Internet services in the valley are often shut down time and again without prior notice invading the fundamental rights of the citizens.[11]
Conclusion
The citizens of Jammu and Kasmir have been under the dread of the territorial dispute between India and Pakistan for years. The research paper unveils that the legality of Article 370 is constitutional and valid on judicial grounds. It simultaneously mourns the absence of fundamental rights of the citizens of J&K.
Human toll is often the aspect of national and cross-border aggression that is devoid of attention. The profound consequences of scrapping Article 370 on human rights won’t heal anytime soon. Numerous efforts to uphold human rights standards and provisions catering to the fundamental rights and needs of the citizens of J&K are the only way to channel human rights into the valley of Kashmir.
Restoring civil liberties of civil liberties of the citizens is of paramount importance. Amending the provisions to cater to their needs would be a start to reconstruct their faith in democracy and statehood.
Name: Priyanka Thiya
College: GLS University, Ahmedabad
[1]Press Information Bureau, https://pib.gov.in/PressReleasePage.aspx?PRID=1984951#:~:text=On%20the%205th%20of%20August,normalcy%20have%20returned%20to%20J%26K. (last visited May15)
[2] Indo Pakistani War of 1947-1948, Wikipedia, https://en.wikipedia.org/wiki/Indo-Pakistani_war_of_1947%E2%80%931948 (last visited May 15)
[3] Indian Kanoon, https://indiankanoon.org/doc/666119/ (last visited May 15)
[4] Cabinet Approves extension of President’s Rule in J&K for six months with effect from 3RD July,2019, PM INDIA,( last visited May 15) https://www.pmindia.gov.in/en/news_updates/cabinet-approves-extension-of-presidents-rule-in-jk-for-six-months-with-effect-from-3rd-july-2019/
[5] “Presidents Rule Imposed in Jammu and Kashmir after 22 years”, India Today, ( last visited May 15) , https://www.indiatoday.in/education-today/gk-current-affairs/story/president-rule-jammu-kashmir-22-years-6-months-governor-rule-1412710-2018-12-19
[6] Article 370 of the Constitution of India, Wikipedia, ( last visited May 15) https://en.wikipedia.org/wiki/Article_370_of_the_Constitution_of_India#:~:text=On%205%20August%202019%2C%20the,parliament%20with%20two%2Dthirds%20majority.
[7] Article 367 An Aid To Understand the Constitution or a Tool to Amend It?, cjp.org.in, (last visited May 15, 2024), https://cjp.org.in/article-367-an-aid-to-understand-the-constitution-or-a-tool-to-amend-it/#:~:text=The%20Article%20stated%20that%20India,of%20government%20of%20the%20state.
[8] The Constitution of Jammu and Kashmir,1956 https://aasc.assam.gov.in/sites/default/files/swf_utility_folder/departments/aasc_webcomindia_org_oid_4/menu/document/the_constitution_of_jammu_and_kashmir_1956_1.pdf ( last visited May 15, 2024)
[9] Rahul Bansal and Muskan Punia, “Human Rights in Kashmir : Violated or Restored”, Volume 1 International Journal of Policy Sciences and Law 1, 4 https://ijpsl.in/wp-content/uploads/2021/09/Human-Rights-in-Kashmir-Violated-or-Restored_Rahul-Bansal-Muskan-Punia.pdf
[10] Rahul Bansal and Muskan Punia, “Human Rights in Kashmir : Violated or Restored”, Volume 1 International Journal of Policy Sciences and Law 1, 10 https://ijpsl.in/wp-content/uploads/2021/09/Human-Rights-in-Kashmir-Violated-or-Restored_Rahul-Bansal-Muskan-Punia.pdf
[11] “We are being punished by the law: Three Years of Abrogation of Article 370 in Jammu and Kashmir.”, Relief Web, ( last visited May 15 )