Explain 5 Years Abrogation of Article 370 Impact and Analysis | UPSC

Introduction 

• • • On August 5, 2019, Prime Minister Narendra Modi announced the abrogation of Article 370 and end of “special status” for the state of Jammu and Kashmir.
    •  Subsequently, Parliament used its powers under Article 3 of the Constitution, for the first time, to withdraw statehood and create two Union Territories. 
    • The Supreme Court in a 5-0 unanimous ruling upheld the Centre’s abrogation of Article 370 of the Constitution.

Article 370 of the Constitution

Article 370 Overview:

• • •  Article 370 was added to the Indian Constitution on October 17, 1949, as a ‘temporary provision.’
    •  It allowed the state of Jammu & Kashmir (J&K) to draft its own Constitution and limited the Indian Parliament’s legislative powers in the state.
    •  The J&K Constituent Assembly had the authority to recommend which articles of the Indian Constitution should apply to the state.

Article 35A:

• • •  Article 35A, stemming from Article 370, was introduced through a Presidential Order in 1954. 
    • It empowered the J&K legislature to define permanent residents and grant them special rights and privileges. 
    • This article was established based on the recommendations of the J&K Constituent Assembly.

Presidential Proclamation Abrogating Article 370:

• • •  On August 5, 2019, the President of India issued the Constitution (Application to Jammu and Kashmir) Order, 2019, effectively abrogating Article 370. 
    • This proclamation made all laws of the Indian Parliament applicable to Jammu and Kashmir.

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Rationale for the Abrogation of Article 370

Promotion of National Integration:

• • •  Article 370 created a sense of separate identity among the people of J&K, contributing to separatist sentiments.
    • Abrogating Article 370 aimed to integrate J&K more fully with the rest of India, fostering national unity.
    • For example, the removal allowed for the implementation of national laws and symbols, such as the Indian flag being flown alongside the J&K flag. 

Aid in the Fight Against Terrorism:

• • •  The special status of J&K under Article 370 was seen as an impediment to counter-terrorism efforts.
    •  Abrogation allowed the application of stringent anti-terror laws like the Unlawful Activities (Prevention) Act (UAPA), enhancing the government’s ability to combat terrorism.
    • For instance, the increased powers led to more effective crackdowns on terror funding networks, such as the 2019 National Investigation Agency (NIA) raids that uncovered significant hawala operations funneling money to militant groups. 

Reduction of Corruption and Graft:

• • •  Article 370 resulted in weak anti-corruption measures in J&K, allowing massive corruption, money laundering, and hawala transactions. 
    • Abrogating Article 370 enabled the application of laws like the Prevention of Money Laundering Act (PMLA) and the Foreign Exchange Management Act (FEMA), aimed at reducing corruption.
    • For example, central anti-corruption agencies were able to prosecute high-profile cases that were previously out of their jurisdiction, such as the 2020 investigation into the Roshni Land Scam, which involved illegal land allotments worth thousands of crores. 

Promotion of Economic Development:

• • •  Under Article 370, only permanent residents could buy and sell land in J&K, deterring large businesses from investing. 
    • Repealing Article 370 was expected to open the region to greater investment and economic development.
    • For instance, major companies like Reliance and Tata have since announced plans to establish operations in J&K, creating jobs and boosting the local economy. 

Effective Implementation of Affirmative Policies:

• • •  Many affirmative legislations, such as the Right to Education and the Right to Information, were not applicable in J&K.
    •  Abrogation allowed these and other policies, including reservation benefits for marginalized communities, to be effectively implemented.
    • For example, students in J&K now benefit from the Right to Education Act, ensuring access to free and compulsory education.

Positive Developments Post Abrogation

Improvement in Governance:

• • •  Governance has improved with better delivery of services and digitization of public utilities. 
    • Major projects under the Prime Minister’s development package have neared completion.
    • For example, the implementation of the Jan Dhan Yojana has increased financial inclusion, and the digitization of land records has streamlined property transactions. 

Improved Economic Situation of J&K:

• • •  The abrogation has attracted investments worth Rs 6,000 crore, and tourism has surged, with the number of visitors increasing from 3.4 million in 2020 to 21.1 million in 2023.
    • The investment in new infrastructure projects like the Jammu-Srinagar highway has improved connectivity, boosting local businesses and tourism.

Increased Trust in the Political and Electoral System:

• • •  Despite initial detentions of political leaders, voter turnout in the 2024 general election was 58.6%, the highest in 35 years, indicating growing faith in the democratic process.
    • The peaceful conduct of elections and the high voter turnout in districts like Anantnag and Baramulla reflect increased political engagement.

Absence of Counter-Hegemonic Views on Kashmir:

• • •  There has been a political consensus on the abrogation of Article 370, reducing incidents of boycotts, civil unrest, and stone-pelting.
    • The unified stance of major political parties has led to a significant decline in bandh calls and protests, fostering a more stable environment.

Social Stability:

• • •  With reduced violence and restored normalcy, public and social life in J&K has become more stable. 
    • Events promoting peace and development are now held in previously volatile areas.
    • Cultural festivals like the Tulip Festival in Srinagar have seen increased participation, symbolizing a return to normalcy and community cohesion.

Prevailing Challenges Post Abrogation

Changing Theater and Character of Conflict:

• • •  Cross-border infiltration and increased terror attacks in the Jammu region have posed new security challenges. 
    • Pakistan’s partnership with China and its continued support for terrorism complicate the situation.
    • For example, the 2021 drone attack on the Jammu Air Force Station highlighted the evolving tactics used by terrorist groups and the need for enhanced security measures. 

Erosion of Social Capital:

• • • Constitutional amendments and subsequent legislative and executive actions have concentrated power and eroded the social capital of Kashmir.
    • For instance, the dissolution of the J&K Legislative Assembly and the implementation of direct central rule have limited local political engagement and participation. 

Political Challenges:

• • •  The abrogation has marginalized traditional political entities, creating a vacuum in local governance. 
    • Mainstream parties like the National Conference and the Peoples Democratic Party struggle to regain influence.
    • Many senior leaders of the NC and PDP, including Farooq Abdullah, Omar Abdullah, and Mehbooba Mufti, were detained for extended periods post-abrogation. This left the parties without key leadership, hindering their ability to coordinate and lead effectively.

Social and Human Rights Concerns:

• • •  Reports of human rights violations, including restrictions on civil liberties, internet blackouts, and detentions of political leaders, have been prevalent post-abrogation.
    • For instance, the prolonged internet shutdowns in 2019 and 2020 severely impacted communication, education, and business activities, drawing criticism from human rights organizations. 

Diplomatic Challenges:

• • •  The abrogation has strained India’s diplomatic relations, particularly with Pakistan, and has led to increased international scrutiny.
    • Pakistan has raised the issue of Kashmir at various international forums, including the United Nations, and sought to rally global support against India’s actions in J&K. 

Supreme Court Judgment  on Article 370

• • • On 11 December 2023, five senior-most judges of the Supreme Court upheld the Union government’s action to abrogate Article 370, which granted special status to Jammu and Kashmir (J&K).
    • Promotion of National Integration:  The judgment supports national integration by eliminating the separate constitution and flag, thus addressing separatist sentiments.
    • Aid in the Fight Against Terrorism:  The verdict strengthens the central government’s anti-terrorism efforts by allowing the application of stringent laws like UAPA in J&K.
    • Reduction of Corruption and Graft: The Supreme Court’s approval allows the stringent application of anti-corruption laws like PMLA and FEMA, targeting graft and money laundering.
    • Promotion of Economic Development: The judgment is expected to attract greater investment to J&K, as businesses no longer face land purchase restrictions.
    • Effective Implementation of Affirmative Policies: The verdict ensures the effective implementation of affirmative policies, extending benefits like education and reservations to marginalized communities in J&K.

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Some Important Committees 

Gajendragadkar Commission (1967):

• • • Purpose: Established to look into various aspects of the administration of Jammu and Kashmir, including the application of Article 370.
    • Key Recommendations: Suggested measures for improving the relationship between the Centre and the state, but did not recommend abrogation of Article 370.

Sarkaria Commission (1983):

• • • Purpose: Set up to examine Centre-State relations in India, which indirectly touched upon the special status accorded to Jammu and Kashmir under Article 370.
    • Key Recommendations: Emphasized cooperative federalism and the need for consultations with the state governments before making any amendments affecting them, but did not specifically recommend changes to Article 370.

 Interlocutors’ Report on Jammu and Kashmir (2010):

• • • Purpose: A group of interlocutors was appointed by the Government of India to engage with various stakeholders in Jammu and Kashmir and suggest a way forward for peace and stability in the region.
    • Key Recommendations: Suggested a review and re-evaluation of Article 370, proposing a debate on its continuation. However, it did not recommend an outright abrogation.

Prime Minister’s Working Groups (2006):

• • • Purpose: Established by Prime Minister Manmohan Singh to address various issues related to Jammu and Kashmir.
    • Key Recommendations: One of the groups focused on Centre-State relations and suggested a review of all laws and articles, including Article 370, that were extended to Jammu and Kashmir after 1953, to restore the state’s autonomy to some extent.

 Parliamentary Committee on Home Affairs (2013):

• • • Purpose: To review the state of affairs in Jammu and Kashmir, including the application and implications of Article 370.
    • Key Recommendations: Suggested that there should be a wider debate on the special status granted to Jammu and Kashmir under Article 370, reflecting diverse opinions on its necessity and impact.

Important Cases: 

Prem Nath Kaul vs. State of Jammu and Kashmir (1959):

• • • Summary: This case addressed the powers of the Constituent Assembly of Jammu and Kashmir and its role in determining the applicability of Article 370.
    • Judgment: The Supreme Court held that the temporary nature of Article 370 meant it was subject to the decisions of the Constituent Assembly of Jammu and Kashmir. Once the Constituent Assembly dissolved, no further changes could be made to Article 370 by the state.

Sampat Prakash vs. State of Jammu and Kashmir (1969): 

• • • Summary: The case dealt with the constitutionality of the detention of a person under the Jammu and Kashmir Preventive Detention Act, 1964.
    • Judgment: The Supreme Court upheld the constitutionality of Article 370, stating it was a permanent provision despite being labeled temporary. The court affirmed that the powers under Article 370(1)(d) continued to be available to the President.

Mohd Maqbool Damnoo vs. State of Jammu and Kashmir (1972): 

• • • Summary: This case questioned the validity of the substitution of the Sadar-i-Riyasat with the Governor of Jammu and Kashmir.
    • Judgment: The Supreme Court held that the replacement of the Sadar-i-Riyasat by the Governor, as an act of the President of India, was valid under the constitution, particularly as the change was approved by the state’s Constituent Assembly.

State Bank of India vs. Santosh Gupta & Anr (2016): 

• • • Summary: The case involved the applicability of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act to Jammu and Kashmir.
    • Judgment: The Supreme Court ruled that the SARFAESI Act was applicable to Jammu and Kashmir under Article 370. The court highlighted that laws passed by Parliament could extend to Jammu and Kashmir if they relate to matters specified in the Instrument of Accession.

Ashok Kumar and Others vs. State of Jammu and Kashmir (2018):

• • • Summary: This case addressed whether the Jammu and Kashmir Reservation Act and Rules were applicable to government employees serving outside the state.
    • Judgment: The Supreme Court upheld that the Jammu and Kashmir Reservation Act and Rules were indeed applicable to state government employees serving outside the state, reaffirming the unique constitutional status accorded to Jammu and Kashmir under Article 370.

Way Forward

Restoration of Political Engagement:

• • •  Reintegrate local political parties into governance through dialogue with central leaders to address grievances and rebuild political engagement.
    • Example: Regular meetings between the Lieutenant Governor and heads of political parties.

Enhancing Security and Community Trust:

• • •  Build trust between security forces and local communities through community policing initiatives to reduce tensions and foster cooperation.

Cultural and Educational Programs:

• • •  Promote cultural exchange and education to bridge divides between communities. Support local arts, crafts, and educational institutions to foster unity.

Addressing Human Rights Concerns:

• • •  The government should act transparently and respond to local concerns regarding security measures and civil rights. Implement measures to ensure the protection of human rights.