Jammu and Kashmir region came to a standstill on 5th August 2019, when the Union Home Minister, Amit Shah, introduced two pieces of legislations, one of which was perceived as a motion to abrogate Article 370. The other Bill was to bifurcate the State of Jammu and Kashmir into two regions: Union Territory of Jammu and Kashmir, with a legislature, and Union Territory of Ladakh, without a legislature. Article 370 was (as it has been rendered inoperative) a sui generis provision, which was inserted in the Constitution of India as a pre-condition to Kashmir&rsquo;s accession into India. Jammu and Kashmir was a princely State ruled by its Maharaja Hari Singh. Hari Singh wanted the State of Jammu and Kashmir to remain independent and not get acceded by either India or Pakistan. But, when soon after independence, Pakistani guerrilla force attacked Kashmir, it was the Indian army which rose to the occasion and contained further escalation by the Pakistani guerrillas. However, Pakistani force captured a part of Kashmir, which is today known as PakistanOccupied-Kashmir (PoK). During this circumstance, instrument of accession, a formal document contemplating Kashmir&rsquo;s accession to India, was prepared by India and signed by Hari Singh. The Instrument of Accession envisaged that the Parliament of India would be empowered to administer the State of Jammu and Kashmir only on three subjects namely defence, foreign affairs and communication. Representatives of Jammu and Kashmir requested in the Constituent Assembly that the Instrument of Accession should be given its true meaning by making necessary changes in the Indian Constitution. Henceforth, in the year 1954, Article 370 was infused in the Indian Constitution under the head of temporary provisions. The Constituent Assembly was dissolved without recommending the abrogation of Article 370 and thus it became a permanent feature of the Constitution. Article 370 accorded a special status to the State of Jammu and Kashmir and it did so to the exclusion of rest of India. The State had a separate flag, different civil laws and even a different criminal statute. Article 35A, which is one of the facets of Article 370, authorised the Legislative Assembly of the State, to unilaterally decide upon the permanent citizens of the State. So, in a nutshell, the Article gave dichotomous powers and privileges to the State under the garb of autonomy.The powers and privileges were aimed to bring about peace and a sense of camaraderie in the minds of Kashmiris towards the people of India. But the Article could not achieve its objectives. Militancy loomed large and people were anguished over the continuous military presence, more so, due to the overarching authority given to the military. This was done due to terror and violent activities by certain terrorist groups like the Jaish-EMohammad and Hizbul Mujahideen. Such groups have been a stone in the way for the Government of India ever since and have disabled the peace process. The abrogation or the removal of Article 370, thus, became inevitable to permanently curtail this perennial violence and secessionist tendencies. Ever since the Bharatiya Janata Party (BJP) Government assumed power at the Centre, under the leadership of Narendra Modi, talks of removal of Article 370 began to do the rounds of the political circles, this being one of the most imperative pre poll promises of the BJP.<img src="https://magarticles.magzter.com/articles/7113/373152/5da4779a43fde/1571060088_loc.jpg" owidth=720 oheight=535" />Constitutional Propriety So far as legality and constitutionality is concerned, the legislations which rendered Article 370 as inoperative, need careful perusal and circumspection. Union Home Minister, Amit Shah, introduced two Bills in the Parliament. One was the Constitution (Application to Jammu and Kashmir) Order, 2019 and the Jammu and Kashmir Reorganisation Bill, 2019. The former was a Presidential Order, which encapsulated that it will supersede the Presidential Order of 1954, which gave birth to Article 370. It also mandated that all the provisions of the Constitution of India shall now be applicable to the State of Jammu and Kashmir. To give effect to this supersession, the Order also amended Article 367 of the Constitution, which is an interpretation Article. Article 367 explains that when an Act or a Legislation of the Parliament or a State Legislature is mentioned, it shall also encompass a law or an ordinance promulgated by the Governor or the President. The Order, amending Article 367, affirmed that any references to the term Sadar-i-Riyaasat, shall be construed as the Governor of State of Jammu and Kashmir. It also buttressed that references to the Government of the State shall be construed as the Governor of the State and that the expression &ldquo;Constituent Assembly of State&rdquo; shall be read as Legislative Assembly of the State.The Constitution (Application to Jammu and Kashmir) Order, 2019, at the outset, states verbatim: &ldquo;In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of State of Jammu and Kashmir, is pleased to make the following Order&rdquo;. Keeping in view that the Government of Jammu and Kashmir was not in operation at the time of making of this Presidential Order, it is unfathomable that the concurrence for the abovementioned order could have been obtained from the Government of Jammu and Kashmir. The Constituent Assembly has also been inexistent since 1957. This means that the Government intended to postulate that the Governor&rsquo;s concurrence would be proxy for the Government of Jammu and Kashmir. This is antithetical to constitutional democracy. Considering that in democracy, it is a manifest rule by the people, it was erroneous on part of the President of India to have promulgated this order. Regardless of the intention of the Government of India to streamline the State of Jammu and Kashmir and augment it along with the rest of India&rsquo;s developmental pace, the trajectory adopted by the Executive machinery was less than desirable.A seminal judgement of the Supreme Court of India was delivered as early as in the year 1968. In Sampat Prakash v. State of Jammu and Kashmir, AIR 1969 SC 1153, the Supreme Court dismissed the petition which argued that Article 370 should be struck off. The petitioner submitted that Article 370 of the Constitution could only have been intended to remain effective, until the Constitution of the State was framed and the will of the people of Jammu and Kashmir had been expressed, and thereafter, this Article must be held to have become ineffective, so that the modifications made by the President in exercise of the powers under this Article, subsequent to the enforcement of the Constitution of the State, would be without any authority of law. The petitioner buttressed his point with the reference to the dissolution of the Constituent Assembly of Jammu and Kashmir. The Court did not accept this view submitted by the petitioner. The Court, in its lucid and brilliant exposition, laid down and affirmed Clause 3 of Article 370 which stated that the President may by order, render Article 370 as inoperative, but he can only do so upon the recommendation of the Constituent Assembly of the State. The Court also held that Article 368 of the Indian Constitution, which requires approval by a twothirds majority in the Parliament to amend the Constitution, does not directly apply to J&amp;K. The Court held, &ldquo;Article 368 is not primarily intended for amending the Constitution as applicable in Jammu and Kashmir, but is for the purpose of carrying the amendments made in the Constitution for rest of India into the Constitution as applied in the State of Jammu and Kashmir. Even in this process the powers of the President under Article 370 have to be exercised.&rdquo; Thus, any amendment to the Indian Constitution (done under Article 368) will apply to J&amp;K, only if such amendment is extended to the State by a Presidential Order under Article 370. The Court&rsquo;s proposition, in so far as general power of the Parliament to amend the Constitution is concerned, has been adhered to by the Government while pushing through the Constitution (Application to Jammu and Kashmir) Order, 2019. Government has not invoked the amendment powers enshrined in Article 368 of the Constitution of India.Another landmark judgement which deserves examination in this regard is, Puranlal Lakhanpal v. The President of India, AIR 1961 SC 1519. In this judgement, a five-judge Constitution Bench held that when, through an order under Article 370, the President applies any provision of the Indian Constitution to J&amp;K, the term &ldquo;modification&rdquo; must be considered in its &ldquo;widest possible amplitude&rdquo;. It will not be limited to making only partial changes to the provision, but will include the power to &ldquo;extend&rdquo; and &ldquo;enlarge&rdquo; the constitutional provision, including making a &ldquo;radical transformation&rdquo;. This judgement reinforced the ideal of the President&rsquo;s power to make a provision of the Constitution of India applicable to the State of Jammu and Kashmir. It can be inferred from this judgement, that the President of India has had a predominant sovereign stature vis-&agrave;vis the State of Jammu and Kashmir since the very inception of Article 370. Whereas the judgement settles that the President can make overarching and structural changes with respect to the Constitution of India&rsquo;s applicability to the State of Jammu and Kashmir, it could be presumed that the Supreme Court had recognised the absolute dominion of the President of India over the affairs of the State of Jammu and Kashmir.In another crucial and recent decision of the Supreme Court of India, namely State Bank of India v. Santosh Gupta, AIR 2017 SC 25, the applicability of SARFAESI Act to the State of Jammu and Kashmir was challenged. The Court underlined that the State had no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India. The Court made a path breaking observation in this judgement stating therein, &ldquo;Article 1 of the Constitution of India and Section 3 of the Jammu &amp; Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu &amp; Kashmir is and shall be an integral part of the Union of India.&rdquo; The Bench, comprising Justices Kurian Joseph and Rohinton Fali Nariman, held that subsequent to the 1954 Presidential Order and the other orders following it, the Parliament did not need concurrence of the State Government to legislate in respect of matters contained in Union and Concurrent List in the Schedule 7 of the Constitution. The Bench went on to observe, &ldquo;It has been argued that Parliamentary legislation would also need the concurrence of the State Government before it can apply to the State of Jammu &amp; Kashmir under Article 370. This is a complete misreading of Article 370 which makes it clear that once a matter in either the Union List or the Concurrent List is specified by a Presidential Order, no further concurrence is needed.&rdquo;It cannot be said that the Government of India performed an outright unconstitutional task or that the abrogation of Article 370 was beyond its powers, as there was a very peculiar lacunae in the Constitution which impelled the Executive to take this route. The quandary propelled by the possible options before the Government was extremely mind boggling. With no Constituent Assembly of Jammu and Kashmir in existence, whose recommendation was the President of India supposed to take in such a circumstance? Such predicaments were in my opinion, the cause for the powers that be to take this extraordinary course.International Response The international community did not respond with hostility towards India with respect to the abrogation of Article 370, as it had been foreseen by most of the people. Pakistan, which has been spearheading and espousing the purported demand of freedom by the Kashmiri people, was stunned into disbelief. Russia and the United States of America, both played down Pakistan&rsquo;s rhetoric by calling the move an internal constitutional matter. China and Pakistan, who are all weather partners, approached the United Nations Security Council and made a request for a closeddoor meeting to discuss the issue of Kashmir. However, closed-door meeting was nothing but a face-saving effort with a large part of the world not reacting to the Indian move.Indian Foreign Affairs Ministry issued statements that India is totally committed to peaceful resolutions of conflicts with Pakistan in consonance with the Simla Agreement of 1972. It also underscored that, be that as it may, the revocation of Article 370 is an internal constitutional matter of India and has no bearing on the bilateral relation between India and Pakistan.<img src="https://magarticles.magzter.com/articles/7113/373152/5da4779a43fde/1571060094_loc.jpg" owidth=718 oheight=559" />Antagonism and What Lies Ahead When the Bill and the proposal to discuss the revocation of Article 370 was introduced in the Parliament by the Home Minister, almost all the opposition leaders, especially the single largest opposition party the Indian National Congress, sprung into instant criticism of the proposal. They were joined by the Trinamool Congress and even Nitish Kumar&rsquo;s Janata Dal (United), which is otherwise a member of the BJP led National Democratic Alliance, the group that rules at the Centre. The opposition leaders made impassionate speeches and made attempts to dissuade the Home Minister from pushing through the Bills. Ghulam Nabi Azad, Congress leader and a former Chief Minister of the State of Jammu and Kashmir said that the Government had attacked Article 370, which stood as a bridge between the Kashmiri people and the rest of India. P Chidambaram, senior advocate of the Supreme Court and former Home Minister termed the act as a &ldquo;constitutional monstrosity&rdquo;. The move to bifurcate the State into two Union Territories was clothed as dismemberment of the territory and its people against their wishes. The Government had sent enormous companies and battalions of the Central Reserve Police Force a couple of days before the proposal being moved by the Union Home Minister in the Parliament. This, along with the sudden cancellation of the Amarnath Yatra, caused a situation of alarm. On 5th August 2019, when Amit Shah went on to announce the plans of the Government, opposition leaders of the State of Jammu and Kashmir, including the ex-Chief Minister Mehbooba Mufti, Omar Abdullah and Farooq Abdullah, were detained by the Government under its powers of preventive detention. The local administration also imposed Section 144 of the CrPC and every possible means of communication was totally shut down. This was done to curtail violence, if there occurs any, due to the revocation of Article 370.The overwhelming majority of the Bhartiya Janata Party in the Lok Sabha and Rajya Sabha, and the support of even some opposition parties in this pursuit, secured a safe passage for the Bill to pass and burying Article 370 in its grave. The communication lockdown has been a major ground for criticism of the Government from all the quarters. It has been euphemised as a virtual detention of the people of Jammu and Kashmir. The people of Kashmir have been at the receiving end of all that has transpired in the month of August. The least that they deserve as a citizen of this great nation, is the fulfilment of promise which this Constitution makes. The communication lockdown which has made people unable to communicate with their loved ones, must be lifted as promptly as possible. In a first, the Indian Government should reward the people of Kashmir with freedom and liberty. The Kashmiris should be made to feel liberated and must be provided with wholehearted development and welfare.

Article 370 Revoked

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