May 27, 2021

“The twisted, devious Abacus has fallen,

Numero Unos of world been watching!

Thou prayed foul, forgetting the fouls thou played,

World embraced both fouls, for a World, better than before!!”

Since inception, Article 370 remained the bedrock of the Constitutional relationship between Jammu & Kashmir and the rest of India, which granted special autonomous status to J&K. Brought in as a ‘temporary provision’ and understood by the Supreme Court that the same has gained permanence, the provision was abrogated in 2019. J&K was the only state in the Indian Union which had its own separate State Constitution; except for Defence, Foreign Affairs, Finance and Communications, Parliament required State’s concurrence for applying all other laws.

Tracing the history sheets, it would be worthwhile to mention that Article 370 was inserted in the Constitution for a variety of reasons. In the words of Gopalaswami Ayyangar, the principal drafter of Article 370, unlike other princely states, Kashmir at the time was not considered ripe for integration. Article 35-A was also brought in as a ‘temporary provision’ empowering J&K Assembly to define ‘permanent residents’ of the State and confer on them special rights and privileges. The provision gave power to the legislature and mandated that no act of the legislature can be challenged for violating the Indian Constitution or any other law of the land. It is debatable whether Article 35-A was passed as per the amending process given in Article 368 of the Constitution, as it was incorporated in 1954 by an order of the then President of India Rajendra Prasad on the advice of the erstwhile Cabinet. 

While the State remained in failed administrative & economic condition for decades, for almost three decades Kashmiri Pandits also continued to bear the failure of the State administration in J&K to protect them from extremists. On the night of January 19, 1990 scores of Kashmiri Pandits were brutally murdered, tortured and forced out of their homeland, when massive crowds assembled in mosques across the Kashmir Valley, shouting anti-India and anti-Pandit slogans. Screaming from loudspeakers and crowded streets was a message for the Hindus and Sikhs living in Kashmir: “Ralive, Tsalive, ya Galive” (either convert to Islam, leave the land, or die). Over the next few months, thousands of innocent Pandits were tortured and murdered. By the year end, around 3,50,000 Pandits had escaped from the Valley and taken refuge in Jammu or elsewhere. Only a handful of Pandits stayed back, who were also dragged out of the Valley by the terrorists. 

Today, several million Kashmiri Pandits and Hindus live outside the Kashmir Valley and their properties are under the illegal occupation and control by the majority population in the region.    

Col (Dr.) Tej Kumar Tikoo (Retd.) wrote in his book, Kashmir: Its Aborigines and their Exodus, that one of the main reasons for the failure of the State administration to respond to the anguished cries of the Kashmiri Pandits to provide them with adequate security was that the State administration had been completely subverted from within by the radical anti-national elements, who had infiltrated into the system over a period of time. This infiltration had been made possible by the existence of Article 35A & 370. Within the broad framework of the special status envisaged by Article 370, which isolated the State from the rest of India, it was far easy for secessionist elements to infiltrate into the administrative cadres. 

On August 5, 2019, Article 370 of the Constitution was abrogated. The move came after both Houses of Parliament passed a resolution in this regard. Alongside the rescinding of the special status, the Indian Government announced that J&K will no longer be a State but a Union Territory, and the sparsely populated region of Ladakh will split off to become a separate Union Territory. 

The constitutional question which arises here is, “Whether a Presidential Order is adequate to abrogate Article 370?”. 

Former Attorney General of India Soli Sorabjee once pointed out in his article that Article 370, as its marginal note stated was a “temporary provision with respect to the State of J&K”, cannot be regarded as an essential feature of the Constitution and comprising basic structure. 

Though from the text of Article 370 it was supposed to be a temporary provision, whether consultation of the ‘Constituent Assembly’ is pertinent for its removal, would be another constitutional question. Whether concurrence or consent of the Governor is as good as that of the Legislative Assembly or that of the Chief Minister and its Council of Ministers; whether downgrading of a State to a Union Territory is constitutionally valid under Article 3 of the Indian Constitution; are other relevant questions of constitutional importance. 

As per the government, Article 370 was an impediment to ending terrorism in the State of J&K and with its removal, terrorism could be curbed more effectively, and J&K may usher in the path of development. The emerging India mustn’t condone the J&K acculturation, the abolition of the Article attempts to addresses discrimination, dis-integrity, commotion, legal-inefficacy, neurasthenia, radicalism and seems inevitably enviable to soothe the Kashmiri-sorrow.

While it is anticipated that Industries, Services and Employment may boom in the State with possible future investment in the Valley, which in turn, could provide better educational, medical and other essential services to the locals; the possibility of integration of the Valley’s residents with citizens of other parts of the country would surely improve the texture of their humanly existence. 

Various petitions had been filed before the Supreme Court to decide upon the constitutional validity of the abrogation of Article 370 and 35A. It is suggested that the Centre should be highly sensitive towards the welfare and rights of Kashmiris, residing in and outside the Valley. 

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VIVEK NARAYAN SHARMA is an advocate practising at the Supreme Court of India. He is the former Joint Secretary of Supreme Court Advocates on Record Association, President of Society for Criminal Justiceand National Advisor, Consultant & Convenor for eminent social, political outfits and law journals in India. Vivek is Advisor (Legal) to Indo-Canada Chambre De Commerce (ICCC) (India Chapter). He has authored the book Electionomics published by Thomson Reuters.  

SHIREEN MOTI is Assistant Professor of Law and Director of the Office of Alumni Relations at O.P. Jindal Global University. She is a Chevening Scholar and has authored the book Guide to LLM Admissions and Scholarships Abroad published by Universal Law Publications and LexisNexis. Shireen is a Kashmiri Pandit and a member of the Kashmiri Pandit Cultural Society.

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