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Abrogation of article 370 and the question of asymmetrical federal arrangement in Northeast India

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• Published: 03 December 2022
• Volume 2 , article number  265 , ( 2022 )

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• Hm Izhar Alam   ORCID: orcid.org/0000-0003-0426-9608 1  

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India is the largest democracy with multi-religious, multi-cultural, multi-racial, and multi-lingual society. In a democratic society, asymmetrical federalism has evolved as an answer to the question of accommodating and managing diversity. The paper intends to explore how asymmetric federal institutions were implanted in the Constitution under articles 370, 371, and the sixth schedule. The central theme of this paper is the self-rule assertion in the Northeast to be placed under the concept of asymmetrical federal arrangement in relation to the recent abolition of article 370. It also analyses how differences in ethnicity and region were accommodated in nation-building through asymmetric federalism, traversing the challenges in crafting, and implementing. The abrupt abolition of article 370, ethnic conflict, and the aspirations for self-rule in the Northeast is debatable in the context of self-rule and shared-rule. The Indian government should have gone for a more conciliatory action. Moreover, it must be cautious and amiable in handling the fragile, existing conundrum of power-sharing federal arrangement and inclusivity in the Northeast and Jammu & Kashmir.

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As laid down in the Constitution of India 1950, article 246; Whilst the Union List contains subjects over which exclusive legislative authority resides in the Union government, the Concurrent List contains subjects over which both Union and States have authority to legislate.

As in the Constitution of India 1950, article 1: 1) India, that is Bharat, shall be a Union of States; (2) The States shall mean the states for the time being specified in Parts I, II, and III of the First Schedule; (3) The territory of India shall comprise (a) the territories of the States; (b) the territories for the time being specified in Part IV of the First Schedule; and (c) such other territories as may be acquired.

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Acknowledgements

I gratefully acknowledge the suggestions of Professor Arshi Khan, Department of Political Science, Aligarh Muslim University, India and also expressed my thankfulness to the editor and anonymous reviewer of SN Social Sciences for their constructive comments on an earlier draft of this article. Therefore, for this research compliance with ethical standards is not applicable.

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Alam, H.I. Abrogation of article 370 and the question of asymmetrical federal arrangement in Northeast India. SN Soc Sci 2 , 265 (2022). https://doi.org/10.1007/s43545-022-00581-8

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Received : 29 January 2022

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Published : 03 December 2022

DOI : https://doi.org/10.1007/s43545-022-00581-8

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International Journal of Legal Science & Innovation

[issn 2581 – 9453].

Abrogation of Article 370: A Detailed Analysis

• Dhriti Anil Kawale and Mohak Agrawal
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Dhriti Anil Kawale

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Mohak Agrawal

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The Indian Constitution governs the country, ensuring social stability, protecting human rights, and safeguarding mankind from grave crimes. Jammu and Kashmir, a unique state under the Indian Constitution, has special status under Article 370, which defines India-Jammu and Kashmir relations. The 2019 Jammu and Kashmir Reorganization Act provides an essential copy of the Indian Constitution. The Indian government has used constitutional power to abolish Articles 370 and 35A, causing concerns about the region's integration for peace and development. The state's permanent resident laws have been criticized for being discriminatory, including the difficulties faced by West Pakistani refugees, immigrant workers, and female residents. The Jammu and Kashmir Reorganization Order, 2020, abolished 29 state laws and altered 109 Jammu and Kashmir laws, including the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act 2010. Removing Article 370 would enhance national security, eliminate discrimination against women, Dalits, and other marginalized communities, and grant them equal rights and privileges.

• Article 370
• Unique Status
• Jammu and Kashmir Reorganization Act
• Article 35A

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International Journal of Legal Science and Innovation, Volume 6, Issue 1, Page 132 - 146

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Abrogation of Article 370 and its Consequences:- An Analytical Study

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6 Pages Posted: 10 May 2021 Last revised: 11 May 2021

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Date Written: December 5, 2020

The study is an effort to analyse the recent decision of the Indian Government vis-à-vis the erstwhile state of Jammu and Kashmir. The decision striped off the special status that the erstwhile state of Jammu and Kashmir enjoyed. The said decision was made on August 5,2019. The paper also analyses the consequences that such a decision may have in this region. It is pertinent to mention here that the erstwhile state of Jammu and Kashmir enjoyed the special status under Article 370 of the Indian Constitution. This paper also analyses the consequences from the abrogation of Article 370. The Article 370 which provided an autonomy to Jammu and Kashmir with a special status in the Constitution of India. The paper tries to highlight the meaning of autonomy in the context of J&K.

Keywords: Constitution of India, Article 370, Secession, Autonomy

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Article 370: Constitutional Obligation and Compulsion

Abstract Article 370 of the Indian Constitution deals with the special status given to the State of Jammu and Kashmir. Under this Article State of Jammu and Kashmir enjoys considerable autonomy which empowers it to have its own Constitution unlike other States of the Indian Union. The whole controversy of insertion of Article 370 started at the time of independence. Being a Muslim majority State with a Hindu ruler, Raja Hari Singh, the State was a bone of contention between India and Pakistan. India upholding the ideals of secularism demanded that the State be a part of it while Pakistan, being a Muslim State, staked claim at it. In the British approved partition plan, there was no provision which stated that the Hindu Princely State must accede to India and the Muslim States to Pakistan. Termed as the „umbilical cord‟ of the Indian Constitution as it is the only link between India and Jammu and Kashmir, Article 370 is perhaps the most sensitive provision of the Constitution. The Parliament has the power to amend the Constitution to change this provision. However, this Constitutional Amendment shall be subject to a judicial review and shall be required to confirm to the theory of basic structure of the Constitution1 as it would affect the relationship between the State and the Centre.

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The paper briefly analyses the integration of the state of Jammu and Kashmir with the Indian Union through the Instrument of Accession (1947) under the pretext of Article 370 of the Indian constitution. Article 370 provided a special position to the state of Jammu and Kashmir in the quasi-federal-oriented polity of India as envisaged in its constitutional set up. It explores legal nature and character of the Article 370 within the Indian Constitution, and also highlights the true nature and meaning of autonomy of Jammu and Kashmir within the Indian Union. The author tries to highlight how after seventy four years Indian govt. arbitrarily and unilaterally abrogated Article 370 without the consent of Jammu and Kashmir constituent Assembly/Elected Government. This paper also analyses social, economic and political implications of abrogation of Article 370. It further highlightsthe exploitative nature of Indian government which was once upon a time a defender of democratic values and means.

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Race and Class

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From time to time, Kashmiri politicians have used Article 370 for unnecessarily stoking up hatred and anger against the Indian state. Mr Omar Abdullah has recently held out the threat of secession if article 370 is abrogated. The article argues that the special category status of Jammu & Kashmir carries much more significance for the state than the much diluted Article 370. Without the special category status, the State can’t survive.

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Article 370 of the Indian Constitution stipulates autonomy for the state of Jammu and Kashmir (J&K). Terms of the Article have remained mired in controversy owing its unequal dispensation within the framework of free India. This paper examines Article 370 and the validity of politics attached to it, based on four specific arguments. First, the Genesis of Article 370 spawns inequality in India. Second, its Retention implies festering of contentious issues. Third, its Ramifications forge inequality within J&K. Fourth, how Politics over Article 370 only seek limited leverage from it. These arguments have been examined through an engagement with primary and secondary sources and views analyzed in different traditions. The case universe comprises views across a spectrum of opinion. An interpretivist approach classifies this debate in the larger context of Continuation or Revocation of Article 370, based on the research question whether Article 370 has worked in the manner envisaged, or has aggravated inequality and fuelled growth of conflict in J&K.

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Kashmir isn't "just another city" or just another place that exists on earth. It is a place described by the famous poet Amir Khusrau in the following words, "Gar Firdaus Bar Ruhe Zamin ast, Hamin asto, Hamin asto, Hamin ast…." Which when translated, means, "if there is Paradise on earth, it is here, it is here, it is here….." The place was once compared to the paradise .The region had been choice of many British officials for their holidays in the British raj period and it remained a frequent location for film shootings by many directors in the 80s and 90s. However, apart from being a great tourist attraction with amazing scenic valley, it also holds a long and painful history of political instability during the latter half of 20 th century. The troubles began for Kashmir since the partition of India was proposed and it took a long line of governments and thousands of lives in pursue of the solution to its troubles. This article is an analysis to understand and highlight all the turbulence that valley of Kashmir went through from partition to present day. We will see phase to phase developments that took place in Kashmir from the time of partition to formation of Article 370 and its abrogation along with its impact on the nation in general and the state in particular.

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