Published on: March 18, 2022 at 20:45 IST
The Kashmir issue is Pakistan’s and India’s longest-running and most serious conflict. Several bilateral and worldwide initiatives have failed to resolve the issue. Both countries have experienced a series of hot and cold conflicts that have harmed their bilateral ties.
Pakistan, which supports Kashmiris’ right to self-determination under the UN Resolution of 1948-49, has consistently resisted India’s attempts to strengthen its control of Kashmir by the use of force.
On August 5, 2019, the Central Government revoked the articles 370 & 35A, which provides special status to Jammu & Kashmir, & bifurcated the state into two union territories, i.e., Jammu & Kashmir and Ladakh.
For the state of Jammu & Kashmir, Article 370 and Article 35A were crucial legislation. Article 35A of the Indian Constitution is a one-of-a-kind provision that gives the Legislature of Jammu and Kashmir entire autonomy in making provisions for permanent residents of the state.
It grants specific rights and privileges in the areas of property purchase, public sector employment, scholarships, and other forms of public assistance. Jammu and Kashmir was granted special status inside India under Article 370.
The most contentious clause in the Indian Constitution was Article 370. Article 370 was only intended to be a temporary measure. The President of India has the authority to declare Article 370 to be null and void, as well as to change it.
History of Kashmir
Jammu & Kashmir was a princely which consists of erstwhile state of Jammu & Kashmir (now, the Union Territories of Jammu & Kashmir & Ladakh), Pakistan-occupied Kashmir (Azad Kashmir & Gilgit-Baltistan) and Akshai Chin (captured by China in 1962 war), whose king was Maharaja Hari Singh.
The British government gave Maharaj Gulab Singh, Jammu and Kashmir and treated it as a princely state during the Treaty of Amritsar in 1846. Between 1912 and 1932, Jammu and Kashmir had legal protection. When the Britishers were about to leave India, they partitioned British India into India & Pakistan.
The princely states were asked to either to join India or join Pakistan or to be independent. Maharaja Hari Singh chose to that the princely state to be independent. After a few months, Pakistan backed Tribal Lashkars attacked and captured most of the parts of Jammu & Kashmir and they were approaching Srinagar, the capital of the State.
Maharaja Hari Singh, through Prime Minister Justice Mehr Chand Mahajan, approached Jawaharlal Nehru for help. But Nehru put some conditions, i.e., accession of Jammu & Kashmir into India & release of popular leader Shiekh Abdullah.
The Maharaja agreed on the conditions and Indian troops arrived at Srinagar. Even after the instrument of accession was signed, Pakistan refused to acknowledge Jammu & Kashmir as an essential part of India. They claimed that the instrument of accession was not signed with Maharaja Hari Singh’s free permission.
The Indian government then turned to the United Nations for help in resolving the conflict. By assigning a low value to the instrument of accession, the UN deemed Jammu and Kashmir to be a disputed territory. They began to send -off the Pakistani backed Tribal Lashkars from Jammu & Kashmir.
The UN proposed a plebiscite to resolve the Jammu and Kashmir dispute, in which the people of Jammu and Kashmir vote on where they want to merge (Pakistan or India). However, the UN has imposed some restrictions in order to have a Plebiscite.
The following are the requirements: Pakistan must withdraw its soldiers from the Jammu and Kashmir region. In Jammu and Kashmir, India needs to lower the size of its army. However, neither country was willing to withdraw its forces from Jammu and Kashmir at the time, and a plebiscite was not held.
But in 1949, ceasefire was announced. The Delhi Agreement was reached after a meeting between the Indian government and Sheikh Abdullah. The Instrument of Accession was debated at this meeting, and Article 370 of the Indian Constitution was introduced to allow for the integration of this instrument of accession.
Article 370 and 35A
Article 370 of the Indian Constitution discusses the state of Jammu and Kashmir’s provisional provisions. Article 370 is divided into 3 parts:
Law making power of parliament for the state of Jammu and Kashmir
In general, Parliament has the authority to enact legislation in all areas of the central and concurrent lists. However, Article 370 limited Parliament’s legislative jurisdiction in the state of Jammu and Kashmir.
According to Article 370, parliament can only pass legislation for Jammu and Kashmir if they are on the concurrent and central list, which was agreed upon when the instrument of accession was signed.
Defence, Communication, and External Affairs were the three areas in which parliament could pass legislation for Jammu and Kashmir.
These three sections encompass 31 central and state-level issues. The agreement of the Jammu and Kashmir administration is required if Parliament seeks to expand its scope beyond 31 issues.
In general, when parliament passes legislation such as the Right to Information Act (RTI), the Goods and Services Tax (GST), and so on, they apply to all states except Jammu and Kashmir.
In the case of Jammu and Kashmir, however, any laws passed by parliament must be ratified by the state assembly. Only the State of Jammu and Kashmir will be affected if the law is ratified by the State Assembly.
Provisions of the Indian Constitution which are applicable in the state of Jammu and Kashmir
In the state of Jammu and Kashmir, Article 1 and Article 370 of the Indian Constitution shall apply. In addition to these two articles of the Indian constitution, sections of the constitution that were defined by President Eisenhower’s decree in 1954 shall apply in the state of Jammu and Kashmir.
The President’s order gets changed from time to time. The other parts and clauses of India’s Constitution do not apply to the state of Jammu and Kashmir.
Procedure to cease Article 370 of the Indian Constitution
Only Article 370 will be abolished if the Constituent Assembly of Jammu and Kashmir agrees that it should be abolished and the President of India declares so by public notification. However, the Jammu and Kashmir Constituent Assembly was disbanded in 1957.
Citizenship of India was granted to people of Jammu and Kashmir with the passage of Article 370 in the Indian Constitution, but the leaders and constituent assembly of Jammu and Kashmir wanted existing laws and state subjects of Jammu and Kashmir to be treated differently.
Then President Dr Rajendra Prasad used the presidential decree of 1954 under the Delhi Agreement to add Article 35A into the Indian Constitution, fulfilling the wishes of the leaders and constituent assembly of Jammu and Kashmir.
The Rights of Permanent Residents of Jammu and Kashmir are defined in Article 35A. These residents are then entitled for specific privileges and rights granted by the legislature.
According to this Article,
“The definition of a permanent resident of Jammu and Kashmir will not alter even if a provision is made in the Indian Constitution respecting this or any other current law in the State of Jammu and Kashmir, or any law established by the State assembly. Nothing in Article 35A shall be nullified if other Indian nationals are denied employment in the state of Jammu and Kashmir, or the acquisition of immovable property in the state, or settlement in the state, or the entitlement to scholarships and other types of help provided by the state government.”
Main Features of the Jammu & Kashmir Reorganization Act, 2019
Reorganization of Jammu & Kashmir
The act split Jammu and Kashmir into two parts: the Union Territory of Jammu and Kashmir, which has a legislature, and the Union Territory of Ladakh, which does not.
Kargil and Leh districts will be part of the Union Territory of Ladakh, while the remaining areas of the existing state of Jammu and Kashmir will be part of the Union Territory of Jammu and Kashmir.
Legislative Assembly of Jammu & Kashmir
In Jammu and Kashmir, the Reorganization Act, 2019, proposes a total of 107 Legislative Assembly seats. Because these seats are in Pakistan Held Kashmir (POK), which is unlawfully occupied by Pakistan, 24 of the 107 seats would stay empty.
Following the repeal of Article 370, some seats in the Union Territory of Jammu and Kashmir would be reserved for Scheduled Castes and Scheduled Tribes in proportion to their population.
In addition, if women are underrepresented, the Lieutenant Governor may nominate two women to the board. The Legislative Assembly will have a five-year term instead of the previous six-year term.
Power of Lieutenant Governor
The President will manage the Union Territory of Jammu and Kashmir through an administrator he appoints. Like the New Delhi Union Territory, the administrator will be known as the Lieutenant Governor.
The President, on the other hand, will manage the Union Territory of Ladakh through a Lieutenant-Governor selected by him. The Legislative Assembly has the authority to enact legislation for any area of the Union Territory of Jammu and Kashmir.
These laws cover:
- Any item in the Constitution’s State List, except “Police” and “Public Order,” and
- Any matter in the Concurrent List that applies to Union Territories.
Council of Minister
A Council of Ministers will assist and advise the Lieutenant Governor of the Union Territory of Jammu and Kashmir. The Minister’s council will be no larger than 10% of the Assembly’s total membership.
Like the Chief Ministers of Delhi and Puducherry, the Chief Minister shall inform the Lieutenant Governor of all Council decisions.
Common High Courts in the Union Territories
The Jammu and Kashmir High Court will serve as the common High Court for the Union Territories of Jammu and Kashmir as well as Ladakh. Furthermore, an Advocate General would be appointed to provide legal advice to the administration of the Union Territory of J&K.
Extent of Laws
Following the revocation of Article 370, 153 state laws of Jammu and Kashmir have been revoked as well. This includes the removal of restrictions on the leasing of land to non-permanent residents of Jammu and Kashmir.
On a date set by the central government, 106 laws from the central list would be applicable to the Union Territories of Jammu & Kashmir and Ladakh. The Right to Education Act of 2009, the Right to Information Act of 2005, the Indian Penal Code of 1860, and The Aadhar Act of 2016 are among the new laws.
The central government will appoint Advisory Committees for a variety of purposes, including:
- The distribution of assets and liabilities of state of Jammu and Kashmir corporations between the two Union Territories,
- Issues related to the generation and supply of electricity and water, and
- Issues related to the Jammu and Kashmir State Financial Corporation. These committees must submit their reports to the Lieutenant Governor of Jammu and Kashmir within six months, and the Lieutenant Governor must act on the recommendations within 30 days.
Situation after Abolition of 370
Since 2019, the situation in Jammu and Kashmir has shifted dramatically. The Indian government is constantly monitoring it. Every other day, the government proposes a new amendment with the goal of developing the region. It is a vitally important region.
The researcher had to examine how the situation in the region has altered post-2019 and the current quo in order to critically analyse the latest amendment.
Kashmir after 2019: The Kite Approach examines law-related conflict situations using an interdisciplinary conceptual framework and the kite approach. Bringing the Partition to a Close investigates the post-2019 situation in Kashmir, allowing for in-depth stakeholder analysis.
After the partial partition of the Indian subcontinent on 14/15 August 1947, Jammu & Kashmir was left hanging between dreams of Azadi (independence) and rival territorial claims of India and Pakistan.
This limbo, which incurred growing costs over time, eventually led to terrible anguish for Kashmir’s diverse population.
The book is a passionate plea for a peaceful future, with a view toward post-2019 arrangements. It explains why, by 2019, India and Pakistan, as the respective ‘others,’ had ultimately decided to keep the areas of Kashmir that they had each held since 1947. Finishing this future-oriented and solution-driven edited book is recommended by the kite model, a diversity-conscious theoretical framework.
A number of petitions challenging the Act’s legitimacy have been filed since August 9, 2019. Members of parliament, retired officials and military officers, advocates, lawyers, activists, and non-governmental organisations have all signed petitions.
On August 10, 2019, members of the Jammu and Kashmir National Conference’s Mohammad Akbar Lone and Hasnain Masoodi filed a lawsuit in the Supreme Court challenging both the presidential orders and the Reorganization Act 2019.
The petition challenges the lowering of representation, the degradation and unilateral alterations to Constitutionalized federalism through the move from statehood to a union territory, and the Constitutional Right to autonomy in relation to the Reorganization Act 2019.
Furthermore, the Reorganization Act 2019 is being challenged as being invalid, as are the presidential instructions.
The presidential orders were declared invalid for a variety of reasons, including unconstitutionally using an article to amend itself in a way that was not written in the constitution, unilateral changes, going against articles in the Jammu and Kashmir Constitution, constitutional morality, and arbitrariness.
The Jammu and Kashmir People’s Conference has also filed a legal challenge to the presidential orders, claiming that they are illegal under Indian Constitution sections 14, 19, and 21, and that the desire of the people of Jammu and Kashmir has not been properly considered.
The Jammu and Kashmir Reorganization (Amendment) Bill, 2021
The Jammu and Kashmir Reorganization (Amendment) Bill was introduced in the Rajya Sabha on February 4, 2021. The Jammu and Kashmir Reorganization (Amendment) Ordinance, 2021, is repealed. On February 13, 2021, the Lok Sabha passed the Jammu and Kashmir Reorganization (Amendment) Bill, 2021.
The Jammu and Kashmir Reorganization (Amendment) Ordinance, 2021 was signed into law on January 7, 2021. It made changes to the Jammu and Kashmir Reorganization Act of 2019.
The ordinance specifies that Article 239A of the Constitution would apply to the union territory of Jammu and Kashmir. This article also pertains to the Puducherry Union Territory. Art. 239A creates a Puducherry union territory with a legislature or a Council of Ministers that is elected, nominated, or partly nominated.
In addition to Art. 239A, any other provision of the Constitution dealing to elected members of a State’s Legislative Assembly that applies to the union territory of Puducherry would apply to the UT of J&K.
According to the Bill, members of the Indian Administrative Service, Indian Police Service, and Indian Forest Service serving in J&K would continue to serve in the two UTs based on central government allocations.
In the future, officers from the Arunachal Pradesh Goa Mizoram Union Territory (AGMUT) cadre will be assigned to the two UTs.
The AGMUT cadre covers all three states of Arunachal Pradesh, Mizoram, and Goa, as well as all union territories. These clauses were modified by the Ordinance, allowing officers in the current J&K cadre to be integrated with the AGMUT cadre.
The bill’s principal goal is to permanently integrate the J&K and AGMUT cadres. Jammu and Kashmir’s government is attempting to set the state on the road to development.
According to the former norm, the ratio of direct recruits in civil services to promotes from the Jammu and Kashmir State Civil Services (Kashmir Administrative Service) was set at 50:50.
The 67:33 formula is used in other states. This action would address the shortage of All India Service Officers in Jammu and Kashmir.
Jammu and Kashmir cadre officers would report directly to the Ministry of Home Affairs (MHA). MHA will be the final authority on all service-related matters, including interstate travel, officer transfers, promotions, foreign deputations, and other areas.
When British India was partitioned into two different territories in 1947, the India-Pakistan conflict erupted. Both India and Pakistan claimed the princely state of Jammu and Kashmir at the time.
The Territorial Dispute between the two countries culminated in three terrible wars and numerous military conflicts. Despite the efforts at peacemaking, the situation remains unresolved. While repealing Art 370 is a good idea, it will not guarantee development or positive developments in the region.
Kashmir is a highly contentious region, especially since Art 370 was repealed. As a result, the Indian government must exercise extreme caution when enacting new legislation or amending existing legislation. The people of Kashmir must take precedence.