Legality of Article 370’s Revocation

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Introduction

The main highlights of the past decades were the achievement of freedom by India and the outlining of the Constitution. As it ended up, the precondition for the accomplishment of freedom was the goal of the communal inquiry, in particular, the subject of the partition of India and the foundation of Pakistan. The precondition for the rise of the current Constitution for the country overall was the goal of the past Indian States question, in particular, the topic of their integration with different pieces of the country.

The agreement on the establishment of Pakistan, which resolved the first issue, hastened India’s independence and led to the emergence of a powerful India. The resolution of the States issue ended dynasties, ushered in republicanism and democracy, and resulted in the creation of a united nation.

While discussing the chapters of the validity of the Article 370, it becomes significant to discuss the federal nature of the Indian Constitution. Federalism can imply that all should be shared by all. The theory of federalism, like the division of powers, is not well-known in textbooks, but it is an important component of constitutional systems. Federalism is a philosophy that divides legislative, executive, and judicial powers between the federal government and its constituent states.

This division of power is typically entrenched in the federal constitution, which neither the federal state nor the member states can alter unilaterally. The unitary and federal models were on the table when the Constituent Assembly convened as a sovereign body in August 1947 to draught the constitution for a free India, which was eventually adopted on November 26, 1949, and went into effect on January 26, 1950. That the federal ideals inspired the framers of the Constitution.

The constitutional relationship of Kashmir with India was thus established the institution of the accession instrument which divided the powers between the state of Kashmir and India. This arrangement helped in the formation of Article 370 of the Constitution. 

History of Kashmir

Jammu and Kashmir’s cultural landscape has evolved dramatically over the decades and centuries. People’s cultural identities have taken on several aspects as a result of various political regimes drawing and redrawing boundaries. Jammu and Kashmir is not a homogeneous state in today’s world. It’s distinct on the inside. In today’s world, there are several different identities to choose from and its multi-layered. 

None of the identities can be reduced to one another. It meets the definition of a diverse society. Diversities exist on many levels in this culture, resulting in a dynamic image of the society. At its most basic level, the state is distinguished by its religious diversity. In the province, followers of the three major religions of Islam, Buddhism, and Hinduism can be found.

The most controversial segment of the subcontinent helped trigger the 1947–49 India-Pakistan battle over the territory of Jammu and Kashmir, whereby 33% of it went under Pakistan’s control and 66% under India’s. From that point forward, the contested region has added to a few conflicts, mobilized clashes, and emergencies.

 India dealt with its once in a while fretful, sole Muslim-greater part province of Jammu and Kashmir with a political procedure of unbalanced federalism. Jammu and Kashmir was given extraordinary status through semi-self-governance arrangements.

The government of India Act, 1935 endeavoured to devise a protected system for the future India, involving both Indian states and British India on a government structure. It was, notwithstanding, discretionary for Indian states to go into an organization. Then again, the authority practiced by the federal government over Indian states extended to such matters as would be surrendered by them on going into an alliance. The component for acquiescing to either territory was given under the Act.

Jammu and Kashmir stands apart as the lone state in the Indian association that isn’t represented by the overall plan of dissemination of forces. An exceptional take off was reached, characterizing what forces should have a place with which government.

The plan was shown up considering that the Indian Constitution doesn’t matter by its own power to Jammu and Kashmir. Outside of international relations, security, and communications, Article 370 gave it a constitution and legislative authority.

Article 35A provided special privileges to permanent residents of Kashmir, including employment and property. New Delhi has effectively undermined this autonomy over the decades through constitutional orders of integration, national laws applied to the state, and relentless political micromanagement. In the Kashmir Valley, an insurgency erupted in 1987 after rigged state elections.

Following that, three decades of war ensued, involving various combinations of insurgency, Indian state policy, foreign intervention, and an international enabling climate, all of which combined to generate various levels of violence severity. From 1989 to 2002, the first period saw the highest levels of violence and population relocation.

During this time, the dominant militant organisation shifted from the secular nationalist Jammu and Kashmir Liberation Front to the Islamist nationalist Hizbul Mujahideen to the more radical Islamist Lashkar-e-Taiba, both with growing Pakistani support. These forces collided with an Indian attrition campaign that was relatively indiscriminate and high-intensity.

It is worth noting that over the last two-three decades, identity politics in the state of Jammu and Kashmir has taken centre stage. Apart from political parties, a multitude of organisations and factions articulate the question of identity in various ways. The very idea of Kashmiri identity serves as a forum of affirmation and contestation in one of the articulations of identity politics.

If parties like the National Conference base their identity politics on reclaiming Kashmiriyat and restoring the state’s autonomy. There are parties and organisations that generally oppose Kashmiriyat as a people’s all-encompassing identity. The idea of Kashmiri identity as seen and projected through the prism of Kashmiriyat’s composite cultural identity, which is founded on a common syncretic heritage.

Genesis of Kashmir Problem

In a contemporary context, the politics of identity in Jammu and Kashmir is deeply rooted in the state’s many and varied identities. All of the identities are important in their own way. Each identity has its own set of claims and ambitions.

The dynamic existence of diversity in Kashmiri culture, which has developed over time, gives rise to multiple identities and identity politics. The essence of politics is also determined by the complexity of diversity.

Divergences in political aspirations result in multiple identity politics in the state as a result of multiple identities. The Government of India appointed Kanwar Dajip Singh as the Government of India’s agent in Jammu and Kashmir as soon as the Instrument of Accession was accepted. This was the first step toward the state’s unique status after India’s independence.

In march 1948 Hari Singh made a proclamation by which his council of ministers were to convene a national assembly based on adult franchise to work out a new constitution for Jammu and Kashmir. In the year 194 another proclamation was issued conferring the powers on Yuvraj Karan Singh the then rules and Maharaj of J&K.

During the same time India was preparing for its draft constitution. And in the year 1950 the Article 370 in the Constitution necessity to accommodate the t hen prevailing legal status of the Jammu and Kashmir State.

Though the ideology of Kashmiri identity changed after Sheikh Abdullah entered power politics in the post- 1975 period, the contestation of Kashmir’s relationship with the Indian Union remained the focal point of Kashmiri identity. However, the question of accession was replaced with the issue of sovereignty as the basis of contention. Sheikh Abdullah’s death in 1984 prompted a transition in the identity politics in the states. 

After the death of Farooq Abdullah’s legitimately elected government in 1984, the imposition of the National Conference-Congress coalition in 1986, and the rigged elections of 1987, identity politics reverted to contesting India’s assertion. Wide protests erupted, with azadi and armed militancy slogans on one side and armed militancy on the other. With the emergence of armed militancy, some powers rose to the fore, claiming the Kashmiri identity to be sovereign, Islamic, and pan-Islamic.

The second phase of the war, which lasted from 2003 to 2012 in a post-nuclear and post-9/11 South Asia, saw violence slowly decline to an all-time low. Militant groups atrophied as a result of international pressure, and as Pakistan’s support dwindled, an India-Pakistan conflict settlement mechanism began, Indian intelligence and border control improved, and nominal improvements a were made in governance and enfranchisement.  were made.

Be that as it may, even as brutality declined and vote based legislative issues returned, Kashmiri Muslim estrangement putrefied under weighty reconnaissance, limitations on opportunities, a premium on counterterrorism over emancipation endeavors, the proceeded with insusceptibility of safety powers from lawful responsibility for common liberties infringement, and the shortfall of “any urge or desire to deal with Kashmir politically.”

These resentments fuelled a groundswell of popular resistance in the most recent period of the insurgency, which saw a resurgence of mass agitations, insurgent activity, and fatalities from 2013 to the August 2019 reorganisation.

The anti-government rebellion took many different forms. Mass resistance included strikes, shutdowns, and provocative unarmed yet violent confrontations, in addition to organised insurgent violence perpetrated by resurgent militant groups. This was met with a more militant and kinetic Indian policy, as well as tougher stances against Kashmiri separatists and Pakistan, as well as direct interventions into the state politics.

On August 5, 2019, Prime Minister Narendra Modi and the Indian government attempted to end a thirty-year insurgency by passing an unprecedented constitutional amendment that removed autonomy guarantees for the state of Jammu and Kashmir (J&K), separated it from the territory of Ladakh, and downgraded both to union territories.

Since then, the Kashmir Valley has been the subject of intense international scrutiny due to a major crackdown on political and civil freedoms. The sudden unilateral shift in Kashmir’s status may be one of the most significant developments in the region since the outbreak of insurgency in 1989 or India and Pakistan’s nuclear tests in 1998, necessitating a thorough examination of what led India to this decision and any likely future.

This study of constitutional relations between Jammu and Kashmir and India from 1950 to 1960 has left the most lasting impression: the state’s growing integration with the rest of the country. As compared to the resolution of the States problem mentioned at the beginning of this paper, progress has been significant, although slowly. The progress toward closer integration was largely driven by Jammu and Kashmir’s initiative, and, more importantly, at the hands of its members.

Mass quasi-violent resistance, increasingly shaky state power, and an anti-institutional alternative to democratic politics characterised the time between 2013 and 2019, posing major challenges to the government’s counterinsurgency policy and implying many broader consequences.

For starters, mass uprisings and rebellions will thrive even in the absence of large-scale insurgent violence. Indeed, for the most part, the absence of the latter may have lulled the state into complacency. However, after participants crossed the line from neutrality to anti-state activism, quasi-violence may have served as a stepping stone to militancy.

Conclusion

Regardless of how people feel about autonomy and the choices available, it’s important to remember that only a federal solution with a portion of meaningful autonomy might be the way out of the state’s complicated network of problems. The implementation of the federal concept of self-rule combined with shared-rule will help Kashmir’s autonomy aspirations.

The two drastic trajectories predicted following the repeal of Article 370 have yet to materialise. As Pakistan Prime Minister Imran Khan predicted, Kashmir has not devolved into a mass violent insurgency or a bloodbath, but neither has Indian Home Minister Amit Shah’s assurance that all is “fully natural” been borne out by on-the-ground realities.

At the same time, the notion that Kashmir might devolve into anarchy ignores India’s well-proven and disciplined violence management system, which includes fortified border controls, a vast security grid, and a dense surveillance network that keeps political opposition below a certain level. Kashmir’s future is more likely to fall right in the middle of these two extremes.

SOURCES

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