Impact of the Scrapping of Article 370 on the Fundamental Rights of the Citizens of J&K

Abstract

One of the highly controversial topics in the country from the last year was the abrogation of article 370. A year has passed since the 70-year-old law was removed in Kashmir and the region was bifurcated into two union territories. Article 370 was considered to be central to Kashmir. By scrapping article 370 many changes are coming in J&K. It was kept as a temporary provision that is why India got the chance now to scrap it completely scrapping of article 370 sword impact on 35a as well which was made by the Kashmir government in 1950.

Keywords:– Article 370, Scrapping, Abrogation, Jammu and Kashmir.

Introduction

Whole Indian is talking about the scrapping of article 370. During 1947 while Britishers we are leaving India they gave the freedom to all kings to live wherever they wish to this caused the formation of hundreds of provinces internally. In November 1947 shortly after the state accedes to India. The Hindu leaders launched the Jammu Praja Parishad to achieve the full integration of J&K with India. Article 370 came into force since 17th November 1952. Sardar Vallabhbhai Patel came into the picture and united all of them to form a nation but he faced issues with one place which is Kashmir. The king of Kashmir did accept this proposal because of Indian politics and he wanted to be separated. At the same time Pakistan plan to acquire Kashmir forcefully as it is not possible to completely acquire it but they have acquired some parts by October 1947. Sheikh Abdul becomes the prime minister of Kashmir. People who are staying in J&K have dual citizenship Indian citizenship and Kashmir citizenship. They have their own flag. In J&K, the elections were conducted every six years. Criticizing the Indian flag was not a crime in Jammu. SC rules were not applicable in Jammu. If a girl marries a person from another state then she loses her Kashmir citizenship. If a girl weds a Pakistani man he gets customary citizenship because of article 370 rights through the Information Act was not applicable in J&K. No other state can buy land in Kashmir.

Fundamental Duties & Fundamental Rights :-

Article 51A of the Constitution do not apply to Jammu and Kashmir. In addition to other fundamental rights, Articles 19(1)(f) and 31(2) of the Constitution are still applicable to Jammu and Kashmir; hence the Fundamental Right to property is still guaranteed in this state. It is the only one state which does not have to give a detailed record of the money flowing in the state and where & how it is used. So far only one Fundamental Right has been added in the Indian Constitutional History and It is the Right to Education Act. Right to Education Act has not been extended to Jammu and Kashmir.

Impact of Scrapping of Article 370 on J&K:-

  • By scrapping article 370 what changes are coming in J&K. There will not be any dual citizenship only Indian. All central laws are applicable in Kashmir.
  • Now the J&K will be divided into two states J&K and Ladakh.
  • Now the all provisions of article 370 are null and void except clause 1 of article 370.
  • There will be a single flag that is the Indian National flag. The election every five years will be conducted.
  • Clause 1 of article 370 envisages that Jammu and Kashmir is an integral part of India.
  • No separate laws for J&K. Any more people from another state can buy or sell lands there.
  • After the repeal of article 370; now the reservation policy will get change in the Jammu and Kashmir. In J&K SC/STs/Minority communities will get a reservation in Government jobs and admission in colleges & Universities.

Challenges to scrapping Article 370:-

Indian government faced so many challenges to scrapping Article 370:-

  • Manohar Lal Sharma is a serial PIL petitioner advocate who was the first to move the apex with a petition challenging the Presidential Order on Article 370. M.L. Sharma has called the Presidential Order “unconstitutional” and has contended that government should have taken the parliamentary route to amend the article instead.
  • Shoaib Qureshi argued that the Presidential Order was not legal because there was no valid governor’s rule in the state at the time of issuance of the Order.

Case Law:-

Sampat Prakash v. State Of Jammu & Kashmir & Anr,( 1968 ):-

Judgement:- The Judgment of the Court was delivered by Bhargava, . This petition under Article 32 of the Constitution of India has been presented by Sampat Prakash who was the General Secretary of the All Jammu & Kashmir Low-Paid Government Servants Federation. The protection of clause(5), (7) of Art. 22 insofar[1] the, provision is inconsistent therewith does not avail the petitioner. The Government of Jammu and Kashmir are entitled if satisfied concerning any person that to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order, to make an order direct that such person is detained[2].

Conclusion:-

Abrogation of Article 370 robbed ethnic identity, employment, and property rights of the people of Jammu, Kashmir, and Ladakh. Kashmir did not face the problem of overpopulation drawback for them. The revocation of Article 370 shattered the last hopes and aspirations of the people of Jammu and Kashmir, Thus there is a long way to go to reach out to the solution of their problems legally and constitutionally. There are no proper hospital facilities as there were no private hospitals. The development of public opinion within and outside India can be substantive for resolving the long term dispute of Jammu and Kashmir. J&K will now be governed by the laws applicable to other Indian citizens. 

Analysis

At last, I would like to conclude my whole article that, I have discussed the whole legal definition of Article 370 and various case law which was the whole soul summary of the whole case. In this article I have written about scrapping of article 370 and what is the impact on the Fundamental Rights of Jammu and Kashmir’s citizens. In this article, I have discussed the Fundamental Rights and Fundamental Duties, what changes are coming in J&K after scrapping Article 370, and what was the challenges face Indian government to the scrapping of Article 370. We have discussed some important case law in this article.


References

  1. www.worldwidejournals.com
  2. indiankanoon.org

 


[1] Indiankanoon.org

[2] 1969 AIR 1153  1969 SCR (3) 574 1969 SCC (1) 562

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