ABROGATION OF ARTICLE 370 :
THE LAWWAY WITH LAWYERS JOURNAL VOLUME:- 3 ISSUE NO:- 3 , SEPTEMBER 23 ,2023 THE LAWWAY WITH LAWYERS JOURNAL ABROGATION OF ARTICLE 370: PARLIAMENT’S BLITZKRIEG TO FORGET A PAST PROMISE Anna Mariam Ramacha Thykkadavil 5th semester, 3-year unitary LLB Government Law College, Thiruvananthapuram Mittu Santhosh 7th semester, 5-year BA LLB Government Law College, Thiruvananthapuram TABLE OF CONTENTS SL.NO CONTENTS PAGE 1 Introduction 1 2 Brief Facts and Procedural History 2-4 3 Unconstitutional Ventures on 5th August 2019 4-7 4 Conclusion 7 ABROGATION OF ARTICLE 370 : PARLIAMENT’S BLITZKRIEG TO FORGET A PAST PROMISE Jammu and Kashmir – a Princely State of serene beauty that later stood amidst our neighbour, culturing chaos and nourishing critical international attention. After a year-long confusion and turmoil, since the Indian Independence of 15th August 1947, the Princely State of Jammu and Kashmir acceded to India by an ‘Instrumentality of Accession’ on 27th October 1947.1 On 5th August 2019, the storyline takes a deviation after seven decades by a few historic measures made by the Union Legislature and Executive. First, a Presidential Order to provide interpretation rules for provisions in the Constitution related to Jammu and Kashmir. Second, aa Statute was brought forth bifurcating the then Union Territory of Jammu and Kashmir into Jammu and Kashmir, and Ladakh; Third, a resolution for repealing Article 370 of the Constitution of India that had given special status to Jammu and Kashmir.2 To suppress any dissent and media coverage of what really happened at the state affected, the Centre immediately imposed internet breakage, communication clampdown, continuous blockade on the free flow of information by media, detention of opposing youth and political leaders, and imposition of s.144 CrPC.3 The methodology is identical to Blitzkrieg – an attacking scheme inculcating speed, vigour and surprise, used by the German military to win WWII, but this time, to win over the past and the future; to portray themselves as the leadership who corrected the historic blunder as they say to become ‘saviour’. P MENON, ‘INTEGRATION OF THE INDIAN STATES P.P 397-400; Gandhi, Patel pp.442- 444 Press Information Bureau Government of India, ‘Two Bills and Two Resolutions passed in Rajya Sabha unanimously; New Delhi; August 5, 2019 The Wire, ‘Crippling Communication Clampdown Takes a Toll on Kashmir’s Districts Reporters’; Majid Maqbool, October 26, 2019, Brief Facts and Procedural History The once scattered territories were unified as a single state by the Dogra clan from Jammu in the nineteenth century, who later conquered Ladakh in 1830s. They then conquered Kashmir Valley in 1840s. They moved into Gilgit by the end of the century. Thus the state of Jammu and Kashmir came into existence.4 In 1947 this princely state of 84,471 miles was ruled by Maharaja Hari Singh, a Hindu, who ascended the throne in 1925 to rule over a Muslim majority population (almost 53%). There was oppression, biased governmental appointments and other corruptions favouring Hindus. As his fourth and youngest queen complained, he just sits surrounded by fawning courtiers and favourites, and never really gets to know what is going on outside.5 Thus an All-Jammu-Kashmir Muslim Conference was constituted in 1932, which later came to be called National Conference with Sheikh Abdullah as its lead and included Hindus and Sikhs this time. It wanted to stand against the unaccountable nature of the Maharaja.6 The princely state was offered two choices- to join either India or Pakistan. As the state shared borders between the two dominions, the strategic importance was at its peak. On 15th July 1946, Maharaja stated that the Kashmiris would ‘work out our own destiny without dictation from any quarter which is not integral part of the State’.7 Lord Mountbatten and even Mahatma Gandhi’s visits failed absolutely. The situation got into utmost stress during October 1947, when tribes force of Pathans from Pakistan crossed the border, briskly made their way towards Srinagar and then to Uri, Mahuta and Baramulla.8 RAMACHANDRA GUHA , ‘INDIA AFTER GANDHI’, Chptr 4: ‘A Valley Bloody and Beautiful’ pp 60, Alastair Lamb, Kashmir: A Disputed Legacy, 1846-1990 (Karachi: Oxford University Press, 1992) Karan Singh , ‘Autobiography’ revised edn (Delhi: Oxford University Press, 1994), pp 18-19 RAMACHANDRA GUHA , ‘INDIA AFTER GANDHI’, Chptr 4: ‘A Valley Bloody and Beautiful’ pp 61 RAMACHANDRA GUHA , ‘INDIA AFTER GANDHI’, Chptr 4: ‘A Valley Bloody and Beautiful’ pp 62 RAMACHANDRA GUHA , ‘INDIA AFTER GANDHI’, Chptr 4: ‘A Valley Bloody and Beautiful’ pp 64 They were armed with modern weapons,wore the battle dress of regular soldiers and used the tactics of modern warfare.9 The aim of the attack was to foment an internal revolution in Kashmir.10 On 24th October Maharaja wired Indian Dominion for military assistance. After a few Defence Committee meetings in New Delhi, listening to suggestions by Lord Mountbatten, that “it would be best to secure Hari Singh’s accession to India before committing any forces to his defence, otherwise Indian troops would be entering a foreign country”, V. P Menon took the flight to Kashmir where Maharaja had taken refuge. Maharaja agreed to accede at once. Menon took the signed Instrument of Accession back with him to Delhi.11 Thus, by virtue of the Instrument of Accession of Jammu and Kashmir, Shriman Inder Mahendra Rajrajeshwar Maharajadiraj Shri Hari Singh, Ruler of Jammu and Kashmir acceded to the Dominion of India. The major conditions made were that, the subject matter related to Schedule I (defence, external affairs, communications and ancillary matters including elections) can only be legislated by Dominion Legislature; the terms shall not be varied by any Amendment or Indian Independence Act, 1947 unless accepted by Maharaj by supplementary Instrument; land acquisition cannot be done by Indian Dominion, except for Schedule I but only on its own expenses; also, this Instrument is not a commitment to accept future Indian Constitution.12 At dawn on the 27th October, the first plane left Delhi for Srinagar with troops and arms aboard and more than a hundred planes followed, carrying soldiers and supplies and bringing back