ABOUT THE AUTHOR- The author of this article Subhendu Bikash Tahal, is a Gold medalist in BA(POL.SC) and is currently pursuing his Post-graduation in Political science at Utkal University.
The land characterized by immaculate streams, alpine forests, stunning mountains, a land of myriad marvel, the land whose beauty and serenity fascinates mind, whose vibrant sound from the streams spell-bound the heart. The land where nature displays all its kaleidoscopic features, the crown of India, the Paradise on earth, the state, which, for its serenity attracts the tourist from the nook and corners of the globe, is now in chaos. Chaos? Yes, in chaos, But why? Read the full article to know everything in detail.
– In this article I’ll explain and explore some uncharted truth in a very simple and lucid manner.
The state of Jammu and Kashmir, now the union territories, is recently in news for last couple of weeks. The reverberation of the decision that was taken in haste on 5th of August is still being felt, the restrictions are still in place, the communication channels have not been made open, a father is not able to meet his child, a mother doesn’t have the opportunity to communicate with her daughter.
This is all because of the decision that was taken to bifurcate the state by reducing its status, and to make the article 370, the glue that bound the relationship between the Indian state and Jammu Kashmir, inoperative, and to scrap article 35A, which allowed special privileges for the permanent members of Jammu and Kashmir; as a decision, to what extent it is legally and morally correct has to be judged by a reasoned mind, without any narrow lens of bias.
Jammu and Kashmir both “are” or if a single entity, “is”, an integral part of India, the illustrious testimony to this fact has been the Article 3 in part 2 of the Jammu and Kashmir constitution which states that, the State of Jammu and Kashmir is and shall be an integral part of the Union of India. So the hue and cry of some pseudo-nationalist, that by scraping article 35A and making article 370, inoperative, Jammu and Kashmir was made an integral part of India, is a textbook example of how lies are being spread to capture attention and to seep into the minds of masses by displaying muscular nationalism, which is legally and morally corrupt because Jammu and Kashmir, invariably, was a part of India and would have continued to be the part of India, had article 370 also not been scrapped. So, technically by making article 370, inoperative, the government has not integrated the state, so this false boasting should at least be stopped.
If this entire issue to be judged purely from a legal perspective then also a clear idea comes into display that how the letters of the constitution have been upheld by subverting the spirit.
– The article 370 was drafted by N Gopalaswami Ayyangar, upon the accession of jammu and Kashmir by Maharaja Hari Singh, to the Indian state, it contains the special provisions with regard to jammu and Kashmir, but the nature of this article is temporary and transitional. The Constitution (Application to Jammu & Kashmir) Order, 2019, proposed to make the article 370 inoperative, and scrap article 35A. The question that instantaneously strike our mind is whether it is legally correct, but we are not competent enough to judge, the court will decide that, but I will give a brief legal analysis in the following paragraphs. But is it morally correct? In fact we are living in a liberal democratic set up, where the individuals are given utmost priority, the liberty, freedom and the dignity of them has to be valued by the State. But it is upon you to decide that, when the decision regarding the state of Jammu and Kashmir was taken, the entire state was put in a prisoners’ cage, devoid of any communication facilities, the political representatives were put under house arrest, a ban was imposed on media, and there was no question of any discussion or deliberation, rather, Armed Forces were placed like manacles for people. Now it can easily be judged that a decision that was taken without any discussion, without taking the views of the people of jammu and Kashmir into consideration, is to what extent morally correct.
– originally only two articles of Indian constitution i.e. article 1 and article 370, were applicable to the state of Jammu and Kashmir, but other articles of Indian constitution could also be made applicable under article 370(1)(d) which states that all the articles of Indian constitution can be made applicable with a presidential order upon the consultation in some respect and concurrence in other, to the state of Jammu and Kashmir. Article 370(3) is the death tablet for article 370 itself. It states that article 370 can be scrapped from the Indian constitution by a presidential order, but upon the recommendation of the Constituent Assembly of Jammu & Kashmir, a body which is no more in existence since 1957.
-Then how the article 370 was made inoperative? In fact some of the best minds utilised their intelligence and found some loopholes, and used those loopholes as a key to unlock the locker of their fortune. Technically they brought certain modifications in the interpretation clause in article 367, the Presidential Order inserted a new sub-clause (4)(d) which states that the words “Constituent Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”. And other modifications in the readings were that “sadar i- riyast” to be read as governor and state legislature will also mean Governor. So in this way through a presidential order the article 370 was made inoperative. But it is a classic case of Colourable exercise of power, because something which can not be done directly, that also can’t be done indirectly. So legally also there is some issue with it, but it can best be judged by the honorable judges who are more competent.
But the cause of concern is not the scrapping of this article but the way now people live there, the leaders are still under house arrest, the media has still not reached the areas, where it should reach. Are people in Kashmir exercising their fundamental rights? Has the spirit of our constitution not been violated?
Subhendu's blog 