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Article 370 Is Now Rendered Hollow. But, More Than Kashmir Is At Stake.

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Known as ‘an indestructible union of destructible states’ India, is going to have 28 states and 9 union territories as assented by the President Ram Nath Kovind from October 31, i.e. the birth anniversary of Sardar Vallabhai Patel. The reorganization of the state’s boundaries and bifurcation wasn’t simply the use of powers given to the Parliament under Article 3 of the constitution. It resulted in the (un)timely demise of Article 370 and 35(A). And also an alteration in Article 367 which was instrumental in carrying out the Jammu and Kashmir Reorganization Act, 2019.

According to Home Minister Amit Shah, the abrogation of Article 370 will end terrorism in Jammu and Kashmir and start economic progress and development in the state. The scraping also echoed phrases such as the unification of India around the country although the Constitution of J&K had already declared itself to be an integral part of India since it came into force on January 26, 1957.

Article 370 gave the state of Jammu and Kashmir a special status because of which the state had a greater measure of autonomy and power and also the center’s jurisdiction within the state was more limited than what it has for other states (MP Jain, Indian Constitutional Law).

Maharaja Hari Singh, the ruler of Kashmir had signed the Instrument of Accession with Jawaharlal Nehru on October 26, 1947, revoking his initial decision to remain independent upon the attack by Azad Kashmir forces backed by Pakistan. This gave the Government of India access to J&K’s matters related to defense, external affairs, and communications. The government of India also committed that the people of J&K would be allowed to form their constitution with an elected body of a constituent assembly.

A scene from Srinagar. Civilian life has been dotted with the presence of armed forces for decades in the valley, serving as a pressing reminder that the state is under constant siege. (Photo: Kashmir Global/Flickr)

Accordingly, Article 370 came into force from November 17, 1952, stating the provisions for the state of J&K are temporary and transitional under certain conditions. Article 370 provides for some special provisions such as dual constitution, dual citizenship, separate flag, a separate set of laws including ownership of property and fundamental rights. It also provided for the state government’s concurrence before applying any other laws except a few (defense, foreign affairs, finance, and communication) by the parliament.

The power to make laws of preventive detention in the state also belonged to the state legislature. Under this Article, the Centre couldn’t declare a financial emergency under Article 360. It could only declare a national emergency in case of war or external aggression. The state emergency was applicable under two type,s i.e. President’s rule under the Indian constitution and Governor’s rule under the state constitution.

After the fall of BJP backed Mehbooba Mufti-led coalition government in June 2018, the state came under the governor’s rule under the constitutional provision. After six months, the state came under President’s rule which paved the way for the cabinet to take policy decisions for the state.

Before we jump to the recent happenings that took over a little period what we need to know is the process of dilution of Article 370 that has been happening for a long time. The process of its erosion began in 1953 with the removal of Sheikh Abdullah from the office of Prime Minister of Kashmir by the Jawaharlal Nehru government on suspicion that he harbored secessionist tendencies. To stay in power, Abdullah’s successors, especially Bakshi Ghulam Mohammed and Mir Qasim, were more than willing to see the Centre expand its tentacles into the state by successively amending or distorting Article 370. It came under the governor’s rule in 1977 and in 1986, it came under President’s rule for the first time. The trend was followed in 1990, 1996, 2002, 2008,2016 and then in 2018. Article 370 was somehow giving a false sense of autonomy whereas the central government’s intervention was far more in Jammu and Kashmir rather than any other state.

The claim that scrapping Article 370 would result in development in the region is being widely discussed. However, according to a report published in The Hindu, Jammu and Kashmir ranked 3 out of 22 states in terms of life expectancy. 3,060 persons were served by one government doctor where Delhi was the best and Bihar was the worst with 2,203 and 28,391 persons per doctor respectively. However, it was placed at the 21st rank in terms of rural employment. Whilst the national average poverty rate was 21.92 %, Jammu and Kashmir’s rate was 10.35%. J&K’s human development index was 0.68% in 2017 which was higher than states like Gujarat and Andhra Pradesh. Considering this we can conclude that the region’s biggest threat has been terrorism and militancy which has destabilized it. The Centre’s measures to counter terrorism are still to be put on test.

Coming back to the process by which Article 370 was hollowed out. It didn’t demand a two-thirds majority in both Houses instead, it was done with a simple majority. Presidential orders have always been used to dilute the provisions given to J&K as a special status. This time the order was issued to amend Article 367. By alteration such as switching out the words “constituent assembly” with “legislative assembly” it was never possible to get a recommendation from J&K’s constituent assembly which was dissolved in 1957. The process is more of hollowing out Article 370 rather than scrapping it. The state which was already under President’s rule, had no means to exercise their will.

During the times of Instrument of Accession, it was made sure that people of Kashmir through a referendum choose their constitution and government. Even though events took place in peculiar circumstances, democratic values were secured.

The gradual process of integration was always in force since. The controversy around Article 370 always presumed it being a hurdle rather than a link. Such major restructuring took place under no peaceful circumstances. Article 370 came into force because of Instrument of Accession. With its abolition, chances are there for the situation to become like the pre-1953 era. To overcome this, the parliament used the power vested in Article 2 to reorganize state boundaries as soon as the J&K constitution ceased to be applicable. Hence, it gave birth to the union territories of Jammu and Kashmir and Ladakh.

All happened without consultation with the state government which is not mandatory, of course. But, it still affects India’s basic structure – federalism.

The whole situation also helped in weaving narratives of nationalism. But, the question is whether our endeavor is unification or homogenization. Article 370 which was already watered down, diluted to a significant extent needed a democratic way to be done with.

The union territories are now left with no special category status as well. Its replacement with union territory status to bring opportunity, investment and employment is yet to be tested. It is easier said than done. It is yet to be seen how Jammu and Kashmir and Ladakh would be better off without Article 370.

Article 370 which had become a psychological symbol of separateness is now removed but, the curfew is not. This decision cannot be evaluated based on what it promises to deliver. Because the consequences are purely circumstantial. The rising difference in opinion coupled with the strategic location of the region puts forth bigger challenges

The restoration of peace is far more necessary than future promises. Even after challenging fundamental of democracy and constitutional means if somehow the government enables opportunities, it doesn’t mean the situation now can be justified. Similarly, if the intention behind the action however idealistic fails to provide a result, it would be considered as folly. The revocation doesn’t only affect one state but also decides the course of our country’s democracy and constitutionalism.

Featured image for representative purpose only.
Featured image source: Kashmir Global/Flickr.
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As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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