Rescind of Article 370 - A Step For Inclusive Growth

Surinder Koul  

The Supreme Court verdict given by five senior-most judges on 11th Dec 2023 upheld the Indian Government's decision to rescind Article 370, which conferred a special status on the state of Jammu and Kashmir. Under Article 370, the Indian constitution was restricted in influencing to state legislature on Jammu and Kashmir matters and gave greater powers to the state legislatures. However certain legal experts and Legal policy bodies have raised eyebrows on the Supreme Court decision as it does not do justice to the features of federalism and the constitutional basic structure. From a broader perspective, the judgment has ended the prolonged economic uncertainty in the state, by creating an atmosphere for public investments in tourism and industries. Supreme Court decree also paved the way for the grant of fundamental rights to the people of the state that are enshrined in the Indian constitution without any hindrance. It reaffirmed the integrity of Jammu and Kashmir as an unalienable state of India, where the flow of the Indian constitution is upheld. However, there are vested interests in the state who still harp to fight for the restoration of Article 370 to safeguard their fiefdom. By and large, the outburst of the vested elements has little impact on the people of the state, who look forward to their development and avenues of progress.

For the resurrection of article 370, 35A, in Jammu and Kashmir State, which was abolished on 5th Aug 2019, by presidential order, CJI constituted a bench of five judges to hear pleas of 23 petitioners challenging the presidential order on a day-to-day basis. By scrapping articles 370 and 35A, the state of Jammu Kashmir was reduced to two union territories of Jammu Kashmir and Ladakh, headed by the Lt Governors. It further scrapped the special status to the erstwhile state of Jammu Kashmir and Ladakh that it enjoyed under the Indian constitutional provisions. Jammu Kashmir and Ladakh regions were put under the Lt Governor's rule and all central laws were extended in the union territories. The plethora of twenty-three petitioners comprised Ms. Anuradha Bhasin, Mehbooba Mufti PDP, G.N. Azad DPAP, Hindal Hyder Tyabji former chief secretary, Kapil Kak former vice chief Marshal, Justices Hanain Masood, Major General Ashok Mehta, Mohd Akbar lone M.P National Conference, Radha Kumar former interlocutor, Muzzaffer Shah ANC and Dr Upinder Kaul Cardiologist, had challenged the validity of the abrogation of article 370 and 35A. Two petitioners, Shah Faisal, IAS officer and Shelja Rashed, a JNU student activist withdrew their petitions from the Supreme Court, deceptively to be safe from the brunt of controversial contention. Amarathon debate of arguments and counterarguments in front of the five judges lasted sixteen days without any break. There were batteries of lawyers supplementing the arguments in support of respective groups in favour and against the abrogation of the article and its constitutional validity and legality before the five-judge benches. Petitioners challenging the revocation of Article were represented by Kapil Sibal, Dushant Dave and Gopal Subramaniam besides a team of lawyers from the Jammu and Kashmir. Leading lawyer Kapil Sibal strongly contested the restoration of articles 370 and 35A and to bring two union territories back to the status of the full state. Kapil Sibal contended that converting the state into union territory was a sudden radical change. It moved the people of the region away from representative democracy to place it directly under the rule of central government. Was it possible to reduce the state to the category of union territory without the consent of the people who lived there? Kapil Sibal further asserted that Article 370 was no longer a temporary provision. It had assumed permanence following the dissolution of the constituent Assembly in 1957. In the event of the dissolution of the Constituent Assembly, the recommendation of which was necessary for the abrogation of 370 the provision could not be revoked. In such eventuality, the state Assembly was the competent authority to determine the future course of Article 370. Since there is no elected Assembly in the state after the state was reorganised into two Union Territories in August 2019, the regions are under lieutenant governor's rule. Concurrence to the abrogation of Article 370 from the elected Assembly was not possible so it stands null and void. Kapil Sibal also brought the historical perspective into consideration that caused the instrument of accession and constitutional relations between Jammu and Kashmir and India which were not to be overlooked. The defined role of the Constituent Assembly, a political body that drafted the constitution which was a political document to determine the constitutional rights and future relations of the region. The same cannot be discarded abruptly without referring to the issue within the framework of the constitutional validity that was bound by its provisions.

The argument sustained by Tushar Mehta, Solicit General was that the repeal of Article 370 brought everyone at par and could never be defaulted and fraternity had to be given effective meaning. Tushar Mehta also clarified that the character of Union territories given to the state was not a permanent feature. Within a certain timeframe, the statehood will be restored. R. Venkatraman, Attorney General asserted that the finality of integration of the state with the rest of India was done. The rescinding of Article 370 by a Presidential order generated a big debate in the highest court and marked a significant turning point in the political history of Jammu Kashmir and India. The contending lawyers and Supreme Court had divergent views on various features of Article 370, its legality, and the constitutionality of its revocation. Consequently, the CJI was construed to withhold the final decree in light of the inherent complexity of the Article.

Article 370 had been a prestigious issue with Kashmiri leadership right from day one. This article gave a special kind of treatment to the political class of Kashmir as compared to the rest of the states of the Union of India. In any form of demonstration, protest or political rally safety and security of Article 370 were an essential part of the political discourse. The outcome was that the upholding and the significance of Article 370 to maintain special status had become the sole monopoly of the regional parties. The regional leaders were masters in exploiting the people to draw their political mileage out of this article.

In the Supreme Court, the enduring discussion was for and against the abrogation of Article 370 pleaded by opposing lawyers for nearly fifteen days. During the hearing in the highest court, words like democracy, fundamental rights, equality before the law and many humanitarian verbose were making rounds in the deliberation. But the irony had been that none of the lawyers or Human Rights activists of the Bar Association of India or any philanthropist group ever thought of an in-depth study of Article 370

enshrined in the Indian constitution serving in a real sense the Humanitarian cause of the people of the State. The petitioners hailing from the state, though being political activists, were not supposed to be ignorant about the misuse of Article 370 by the ruling segments in the state. Under Article 370 the enactment of 35A, the fundamental right of equality, and liberty in practices of profession in any part of the country were virtually taken away which was admitted by the CJI in an interactive court hearing session. Effectively, Articles 370 and 35 had become rattleless weapons to practice nepotism and favouritism in appointments, promotions, postings and admissions in professional colleges for the ruling regional parties in the state government. A good section of the populace in the state was relegated to the background as if they had no rights. The basic citizenship rights of the partition-time West Pakistan refugees in Jammu province were denied to them from 1952 to 2019. Their generations for six decades were deprived of government jobs, bank loans, business entrepreneurship and the right to cast votes in the state Assembly and Panchayat elections. The same plight of deprivation of political and economic rights was dispensed with the progeny of the Gorkhas living in Jammu whose forefathers had served in the Dogra army from Raja Ghulab Singh's time. Their entitlement to citizenship and other fundamental rights was restored after the abrogation of Article 370 on 5th August 2019. Scavengers were imported from Punjab in 1957 with a lot of beneficial promises of settlement by the then government of the day for the sanitation of the Jammu city area when local municipal staff went on mass strike making the city's civic life miserable. Their successive generation of Dalits from Punjab were debarred citizenship rights despite their claims and requests to subsequent governments. The Minority Commission in the state did not exist in the state constitution when microscopic minorities of Buddhists, Christians, Sikhs, Hindus and Pandits were at the margin.

Contrarily, the majority population was reaping the Minority benefits by amalgamating themselves with the rest of the Indian Muslims. In the state, they were grabbing the maximum share as a majoritarian component of the population. This resulted in total deprivation of the above minorities of the fundamental political, economic and social rights to live an honourable life. Gender discrimination under Article 370 was harsh. Women of the state marrying men from other states were losing their state citizenship rights.

Conversely, the women from outside the state married to the men from Jammu and Kashmir State were automatically granted state citizenship rights. This was the gross differentiations met by opposite genders of the state in cases of their marriage of choice beyond the state. For employment, promotion, posting and admission to professional colleges, majoritarianism was the trend of the ruling class in the state. Merit was thrown to the winds.

There was a flagrant and blatant misuse of the article by the regional parties. These ambiguities went unnoticed for seven decades. Why were the Central parties overlooking this grave thuggery hatched in the State? Was it to appease the majority populace of the state in light of its conflicting status? But at the same time, the legal luminaries of the Bar Council of India did not express their concern on the maltreatment of human rights and fundamental rights in the state when they had remained affront on many such issues in respect of other states. In the case of the declared terrorists Afzal Guru, Yakub Menon, and Yassin Malik, eminent lawyers were there to fight for their rights. Now the same class of lawyers were vociferously   pleading   for   the recommencement of Article 370, 35A and challenging the constitutional validity of its abrogation under Presidential order in the Supreme Court. Following the series of arguments, the bench of five judges unanimously delivered the judgement that endorsed a complete merger of the state with the union of India which has been welcomed by the rest of the country.

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The views expressed in the Article above are Surinder Koul’s personal views and kashmiribhatta.in is not in any way responsible for the opinions expressed in the above article. The article belongs to its respective owner or owners and this site does not claim any right over it. Copyright Disclaimer under section 107 of the Copyright Act of 1976, allowance is made for "fair use" for purposes such as criticism, comment, news reporting, teaching, scholarship, education, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing."

Courtesy: Surinder Koul and  Naad, January, 2024