Blog

GS2-POLITY

History of Article 370

Article 370, a provision within the Indian constitution, granted special status to the contested region of Jammu and Kashmir, which has been a subject of dispute involving India, Pakistan, and China.

This constitutional provision, conceived by N Gopalaswami Ayyangar, a member of the Constituent Assembly of India, was incorporated in 1949 under the classification of a 'temporary provision.'

Under Article 370, Jammu and Kashmir had the privilege of maintaining its own constitution, flag, and a considerable degree of autonomy, with exceptions in the areas of defence, foreign affairs, and communications. This special status was derived from the terms outlined in the Instrument of Accession, a document signed in 1947 by the then ruler of Jammu and Kashmir, Hari Singh. The Instrument of Accession facilitated the region's integration into India following an invasion by Pakistan.

How did Article 370 get repealed?

• Presidential Order (2019):

• Redefined "constituent assembly of Jammu and Kashmir" to mean "Legislative Assembly of Jammu and Kashmir" through a Presidential Order.
• President's rule was imposed, assuming the powers of the Legislative Assembly, facilitating the revocation of Article 370.

• Resolutions in Parliament (August 5-6, 2019):

• Concurrent resolutions passed in both houses - Lok Sabha and Rajya Sabha.
• Revoked remaining provisions of Article 370 and introduced new ones.

• Jammu and Kashmir Reorganisation Act, 2019:
• Enacted by Parliament on August 5, 2019.
• Resulted in the bifurcation of the state of Jammu and Kashmir into two Union Territories: Jammu and Kashmir, and Ladakh.
• This legislative act played a pivotal role in reshaping the constitutional and administrative framework of the region

Opinion of the court:

• Article 370 as a Temporary Provision:

• The court determined that Article 370 was intended as a temporary provision and clarified that the State of Jammu and Kashmir lacked internal sovereignty.
• It highlighted two key reasons for the temporary nature of Article 370: serving as a transitional arrangement to establish a Constituent Assembly for drafting the State Constitution and facilitating the integration of Jammu and Kashmir into the Union of India amid the war-like situation in 1947.

• Governor's Authority during President's Rule:

• The court upheld the proclamations made by referencing the 1994 ruling in 'SR Bommai v Union of India,' affirming that the Governor (President in J&K’s case) can assume "all or any" roles of the state legislature.
• It emphasized that such actions must undergo judicial scrutiny only in extraordinary cases.

• Unilateral Power of the President under Article 370 (3):

• The court ruled that the President, exercising powers under Article 370 (3), can unilaterally notify the cessation of Article 370 without the need for the State government's concurrence, as specified in the provisos to Article 370(1)(d).

• Validation of Jammu and Kashmir Reorganisation Act, 2019:

• The court affirmed the validity of the Jammu and Kashmir Reorganisation Act, 2019, particularly regarding the creation of the Union Territory of Ladakh.
• It clarified that the State legislature's views on the proposed reorganisation are recommendatory and not binding on Parliament.

• Expanded Powers of Parliament during President's Rule:

• The Chief Justice asserted that Parliament's authority during President's rule extends beyond mere lawmaking to include executive actions.
• The court emphasized that not every decision and action taken by the Union Executive on behalf of the State government during Article 356's proclamation is subject to challenge to avoid chaos and uncertainty.

• Directive to Restore Statehood and Conduct Elections:

• The court directed the restoration of Jammu and Kashmir's statehood at the earliest.
• It mandated the holding of elections to the legislative assembly of Jammu and Kashmir by September 30, 2024.

• Proposal for a Truth and Reconciliation Commission:

• Justice Kaul, in his concurring opinion, proposed the establishment of a Truth-and-Reconciliation Commission, inspired by the South African model post-apartheid.
• This commission would address human rights violations by both state and non-state actors in Jammu and Kashmir since the 1980s.

Reasons for abrogating Article 370:

The abrogation of Article 370 was driven by several key considerations:

• Integration and Development:

• Article 370 posed an obstacle to the complete integration of Jammu and Kashmir into the Indian Union, fostering a sense of separatism and impeding the region's overall development.
• The removal of Article 370 was seen as a crucial step toward facilitating better access to resources, infrastructure, and opportunities for the people of Jammu and Kashmir.

• National Security:

• Exploitation of Article 370 by Pakistan to support terrorism and separatism in the region prompted concerns about national security.
• Abrogating Article 370 aimed to strengthen national security by providing the Indian government with greater control over the region, enabling more effective measures against terrorist activities.

• Ending Discrimination:

• Article 370 had discriminatory implications, particularly affecting women, Dalits, and other marginalized groups in Jammu and Kashmir.
• The abrogation sought to eliminate such discrimination by bringing these groups under the purview of Indian laws, ensuring equal rights and opportunities for all.

• Transparency and Accountability:

• Article 370 contributed to a lack of transparency and accountability in the governance of Jammu and Kashmir.
• The abrogation aimed to address this issue by subjecting the state to the oversight of the Central Vigilance Commission and the Right to Information Act, thereby promoting better governance and accountability.

• Economic Prosperity:

• Article 370 was identified as a hindrance to economic development in Jammu and Kashmir.
• The abrogation was anticipated to unleash economic potential by attracting greater investment, promoting tourism, and fostering job creation in the region, contributing to overall economic prosperity.

Impact of abrogation:

• Decrease in Violence: Since the abrogation of Article 370, there has been a substantial reduction in violence in Jammu and Kashmir. Official data indicates a more than 50% decline in terrorist incidents, with security forces successfully neutralizing over 300 militants over the past four years. This decline is attributed to heightened security measures, improved intelligence gathering, and a decrease in public support for militancy.
• Advancements in Economic Development: The government has actively implemented initiatives to stimulate economic growth in Jammu and Kashmir, exemplified by the Prime Minister's Development Package (PMDP) and the Industrial Development Scheme (IDS). These endeavors have resulted in increased investment, job creation, and a noteworthy 31% growth in tax revenue for the Union Territory. In the fiscal year 2022-23, Jammu and Kashmir's Gross State Domestic Product (GSDP) expanded by 8%, surpassing the national growth rate of 7% at constant prices.

Infrastructure Enhancement: A substantial commitment to infrastructure development has been made by the government in Jammu and Kashmir, encompassing the construction of new roads, bridges, tunnels, and power lines. These improvements have not only enhanced connectivity but also facilitated smoother travel and business operations within the region.

• Surge in Tourism: Post- Article 370 abrogation, Jammu and Kashmir has experienced a significant upswing in tourist inflow. Factors contributing to this increase include enhanced security, effective marketing strategies, and the introduction of new tourism initiatives. In 2022 alone, the region witnessed an impressive 1.62 crore tourists, marking the highest number in India's 75 years of independence.

Associated Challenges:

• Social Reconciliation: The process of abrogating Article 370 may have left lingering social tensions and divisions. Reconciling diverse communities and fostering a sense of unity remains a significant challenge.

• Security Concerns: Despite a decline in violence, maintaining sustained security in Jammu and Kashmir remains challenging. Ongoing efforts are required to thwart potential threats and ensure the safety of residents and visitors.
• Economic Development Disparities: While there have been economic strides, addressing regional disparities and ensuring that the benefits of development reach all sections of society is crucial. Striking a balance in economic growth across different districts is a formidable task.

• Political Engagement: Establishing a stable and inclusive political environment is challenging. Encouraging active political participation and representation from diverse communities is essential for a robust democratic process.

• Resolving Land and Resettlement Issues: The changes in Jammu and Kashmir's status have raised concerns related to land rights and resettlement. Navigating these issues to ensure fairness and inclusivity is a complex challenge.

Way forward:

• Inclusive Governance: Promote inclusive governance that accommodates the aspirations of all communities, fostering a sense of belonging and representation in decision-making processes.

• Continued Economic Initiatives: Sustain and expand economic development initiatives to address regional imbalances and create opportunities for employment, entrepreneurship, and overall economic prosperity.

• Community Outreach and Dialogue: Facilitate community-level dialogues and outreach programs to bridge social divides, fostering understanding, tolerance, and communal harmony.

• Political Dialogue: Encourage a constructive political dialogue involving all stakeholders to build a stable political landscape that represents the diverse interests of the people of Jammu and Kashmir.

• Infrastructure and Educational Investments: Prioritize investments in infrastructure and education to enhance connectivity, promote skill development, and ensure the availability of quality education for all, contributing to long-term social and economic development.
• International Diplomacy: Engage in diplomatic efforts to address any international concerns related to the changes in Jammu and Kashmir's status, fostering understanding and cooperation on the global stage.

Conclusion

In its recent verdict, the Supreme Court not only reaffirmed the principles of 'Ek Bharat, Shreshtha Bharat' but also underscored the significance of unity and a shared commitment to effective governance. This ruling stands as a compelling testament to the court's dedication to fortifying the cohesion of our nation and reinforcing the core values that shape us as a society.