The ‘disastrous effect’ of lockdown and Abrogation of Article 370

[This is a post by Suvechha Sarkar, Contributing Member]

Introduction

The situation regarding the coronavirus pandemic had been getting worse since the last two months and is deteriorating till now. It is known to us that there is massive lockdown throughout the nation, the effects of which still persist and have been huge on the whole country including that of unemployment, hunger, migrating worker’s crisis etc. This issue has almost put the matter of the Indian Government’s revocation of the special status which was given by Article 370 of the Indian Constitution.

The indefinite curfew which was imposed on Jammu and Kashmir was the result of the extension of the state of emergency, invoked under Article 356.

What is Article 370 about?

Article 370 of the Indian Constitution gave a special status to Jammu and Kashmir. The history of it dates back to the time when India had just gained independence and there were many princely states existing independently. The Indian Government made all the other princely states to be annexed within Indian states but Jammu and Kashmir became one of the most disputed areas with Pakistan wanting its control over it and the residents opting for independent status.

To solve this dispute, it was proposed by the representatives of the constituent assembly that only the clauses of the original Instrument of Accession should be applicable on Jammu and Kashmir. The rest of the Constitution of India would not apply to them. They would be provided with autonomy and when the State’s Constituent Assembly would be formed, it would further decide on the matters of the State. Thus, the State had its own functioning Constitution. Non-residents were not allowed to buy lands in Jammu and Kashmir except the permanent residents, along with this article and under the Article 35A which was in turn in violation to the Article 14 of the Indian Constitution which stated: “Equality before the Law”.

Why the Article 370 was revoked and how was it done?

In April 2018, it was stated by the Supreme Court of India that Article 370 had gained a state of permanency as the State Constituent Assembly was ceasing to exist. It was at this point that the Government opposed the ruling of the Supreme Court and thus, claimed Article 370 as “inoperative” in spite of its sheer existence in the Constitution. On 5th August 2019, the President issued an order namely- the Constitution (Application to Jammu and Kashmir) Order, 2019 thus suspending the Constitution (Application to Jammu and Kashmir) Order, 1954. By the issuing of this Presidential Order, it was declared that all the provisions of the Indian Constitution were applicable on the State. The President’s rule was imposed thus negating the role of the state’s Governor and Jammu and Kashmir came under the list of the Union Territories.

Talking about how the revocation was made, we have to discuss the clauses which were present in the following Article. The President issued the order with the “concurrence of the Government of State of Jammu and Kashmir”. As the State Constituent Assembly ceased to exist, the President took control of the state by invoking Clause I of Article 370, which clearly stated that in this situation the President had the power to modify and change the subjects related to Jammu and Kashmir on the Indian Constitution. In order to carry out this power, the first change was made by him in Article 367 and a new clause was added because this Article dealt with the interpretation of the Indian Constitution.

The phrase “Constituent Assembly of the State” was replaced with “the Legislative Assembly of the State”. As the State Constituent Assembly was suspended, the Legislative Assembly needed to be referenced on the following matter, to which the Order stated that any reference made to the Legislative Assembly would be interpreted as a reference made to the Governor of Jammu and Kashmir. The Governor of the State is appointed by the President, who in turn works mostly on the advice of the Cabinet and the Prime Minister. Consequently, it would mean that the central Government would be functioning in place of the State Legislative Assembly.

The passing of the Resolution

The Home Minister of India moved the Resolution in the house of Rajya Sabha in order to provide the President with any kind of additional recommendations or suggestions on the Order. The Resolution was being highly debated and was passed by the Rajya Sabha with 125 votes i.e., 67% of the total votes in its approbation on 5th August 2019 and with 61 votes i.e., 33% of the total votes against it.

The bill was sent to the Lok Sabha for its reorganisation and after much debate, the bill was passed with 370 votes i.e., 86% of the total votes, in its favour and 17 votes i.e., 14% of the total votes against it on the 6th of August, 2019. Alongside with the resolution for reorganisation, the resolution which recommended the revocation of Article 370 was passed with 351 votes in its approbation and 72 against it.

Part II of the Jammu and Kashmir Reorganisation Act of 2019 clearly stated that:

3. On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Ladakh comprising the following territories of the existing State of Jammu and Kashmir, namely:— “Kargil and Leh districts”, and thereupon the said territories shall cease to form part of the existing State of Jammu and Kashmir.

4. On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Jammu and Kashmir comprising the territories of the existing State of Jammu and Kashmir other than those specified in section 3.

This part stated that the governance of the state would directly go to the President thus taking away the autonomous power of the State, which was now turned into a Union Territory.

The effects of lockdown in the “Heaven on Earth”

A year has passed with the revocation of Article 370. The conditions in Jammu and Kashmir have not got any better. Long before the lockdown due to pandemic situation, the state had been going through several curfews, lockdowns, restrictions on communication mediums and also the infringement of various fundamental rights due to the imposition of the State of Emergency under Article 356. Various political leaders had been arrested including the previous chief minister of the State.

The revocation of autonomy of the State had spurred up the residents which led to massive protests and widespread unrest. The Right to access the internet of the state was being taken away as the connection was being cut off except for some of the working agencies. This infringed their Right to Privacy. It subsequently has separated the whole valley from the rest of India as well as the rest of the world. There are no particular judgements by the Supreme Court regarding the question of whether the Right to access the internet is a fundamental right or whether it falls under the Right to Privacy. In the famous case of Faheema Shirin v. State of Kerala and ORS, it was stated that it falls under the Right to Education and Privacy under Article 26 and Article 21 of the Indian Constitution.

The voice of Kashmir has been further diminished by the limitations imposed on the newspapers and press release there, thus infringing the Right to information of the people living there. The Indian Supreme Court had been flooded with several pleas regarding the lockdown which mainly consists of petitions of Habeas Corpus. While some of the pleas have been heard, several others are still pending which consists of petitions challenging the revocation of Article 370, and against the atrocities which are being committed in the State.

Conclusion

There is no free flow of information, no internet or broadband connection, no proper security or no proper means for the people of Jammu and Kashmir till today, even after more than 1 year of the revocation has passed away. The “Heaven on Earth” may be easily compared to “hell” at the present.

The whole of India has been silent and the world is still unaware of the problems which the residents are facing. Human Rights are being threatened each and every day. Being citizens of the same country, it becomes our duty to stand beside our fellow brothers and sisters instead of turning a blind eye. The delays in the hearing of the Petitions, the ignorance of the population has been the big question as to when will the lockdown in Jammu and Kashmir be lifted and when will the “Paradise” return to its previous beautiful and peaceful state.

(The views are personal)