The Big Picture - Article 370 Abrogation & Implications

In an announcement with massive repercussions for Jammu and Kashmir, Home Minister Amit Shah announced in Rajya Sabha that the government has repealed Article 370 of the Constitution which grants special status to J&K. The government also decided to bifurcate the state into two Union territories – Jammu and Kashmir, which will have a legislature, and Ladakh, which will be without a legislature. Shah’s announcement was immediately followed by massive uproar in the Upper House with opposition MPs protesting in the Well of the House. Back in the Valley, three of Jammu and Kashmir's most prominent politicians — Mehbooba Mufti, Omar Abdullah and Sajjad Lone are under house arrest amid a massive security-build up in the state. Internet services and mobile services have been suspended in several places and all public gatherings are banned in Srinagar district as section 144 was imposed from midnight. On this edition of The Big Picture we will analyse the implications of Abrogation of Article 370.

Guest Name - Satya Prakash, Legal Editor, The Tribune,
J Sai Deepak, Advocate, Supreme Court,
Rana Banerji, Former Special Secretary, Cabinet Secretariat,

Anchor - Frank Rausan Pereira

[kirtinandanagrawal]

Awesome debate and hats off to you Mr J Sai Deepak🙏🙏

[RahulIyer]

This is so much better than watching the “mainstream news channels” debates. Only information no arguments, potshots and political agendas

[anupamsharma]

J sai deepak should made permanent on this show . This knowledge is just amazing.

[anantaashrivastava]

J.Sai Deepak sir is fountain of knowledge, legal and historical expertise.

[tathagat]

Sai sir knows its mostly govt aspirants watching. He keeps the topic structured and concise

[Hareesh_]

I am from ladakh . I am very happy with abolish art 370.

[scorhigh]

The implication of Abrogation of Article 370

In J&K due to Art 35A, it was completely a discriminatory regime. It violated the women and also the basic fundamental right of the balmikis who are settled there and also the basic rights of the people who came from West Pakistan.
Art 370 and Art 35A are said to be conjoined twins. Art 35A was introduced in pursuant of the 1954 order and the 1954 order itself stands superseded. Art 35A goes along with it.
The power of the president to introduce Art 35A through his powers of Art 370 was upheld by the constitutional bench in 1961. The Sc held that it is available for the president to invoke his powers under Art 370 and even introduce a new provision in so far as the state of J&K is concerned and dehors the power of the parliament to make a Constitutional amendment UA 368.
Therefore, it is available for the President to revoke Art 35A as well.

What changes now?
Article 370 itself has not been abrogated.
Paragraph 1 in the document says that the Power of the President under Article 370(1) has been invoked. what are purposes-
To replace the constitutional order of 1954 with the constitutional order of 2019.
Which means all amendments to the constitution or all applications of the constitution to the state of J&K under the 1954 constitutional order stands replaced and superseded by the current order.

Para 2 makes it abundantly clear that all provisions of the constitution as amended from time to time shall apply to the state of J&K except for the changes made to Art 367. The byproduct of this art 370 was the creation of a separate constitution for the state of J&K.

Change has been made to the provision of Clause 3 of the Art 370. Till now whenever the Art 370 was discussed the discussion revolved around whether the President can invoke his powers under Art 370(3) to issue a public notification saying that a particular provision will cease to be operative from a particular date. However, it was connected to the provision which said provided that he shall receive the recommendation from the CA before doing such a thing. If the CA ended in September 1956, then there was no question of the operability of that particular provision post-1956. Therefore, a reference to CA both in clause 2 and clause 3 has been replaced with the Legislative Assembly of the state.

Entire Art 370(1) refers to the govt of the state and the govt of the state has been interpreted wl this while as a reference to the Governor of that particular state acting in the advice of the Council of Ministers.
Effectively Art 370(1) has been taken pursuant to the power of the president along with the concurrence of the state(governor) and therefor entire C has been applied.
Art 370(1) has been used to render the C of J&K redundant.

Judicial Review:
The question will be whether this violates the basic structure of the constitution- Part XXI of the C talks about temporary and transitional provisions, therefore, this cannot be challenged on the ground of basic structure.
If it is challenged on the grounds of the right to equality or right against non-discrimination or right to live with human dignity then any constitutional court will strike down this kind of provision.

Significance:
Now with the application of Indian C in its entirety to the state of J&K, the C of J&K has been completely replaced with the C of the Republic of India.
This will help in dealing with the situation in Kashmir.
This could generate more development and more employment for the people of J&K.
Art 35A was effectively the tool under which the definition of who shall be the permanent resident or the citizen
was exclusively reserved within the powers of Kashmir state which affected employment, representation in govt services, scholarships, purchase of property and settlement in the state. All this now goes with one sweep.

In May 1949, the President of the Buddhist Association of Ladakh, Chiang Ringsin wrote a letter to the Prime Minister, at that point saying that Ladakh has a different identity from Kashmir and it has also been part of Tibet at some point of time and that it was annexed in 1834 before the formation of princely state of Kashmir under the Treaty of Amritsar in 1846. Therefore, even if Kashmir decides to stay independent or go with Pakistan, Ladakh wants to be with India and not with Tibet. Ladakh has always believed that it has closer cultural ties with India and now this sentiment is being respected.

Art 35A once it goes out also allows restoration of demographic balance to that state.
Investments could increase and even tourism.

Ladakh:
Geostrategic and geopolitical nature of Ladakh and the fact that it will be without a legislature and will be directly under the union makes a lot more sense.
Ladakh gives access to Afghanistan and China.
Now it is shielded from any internal political mechanisation and allows the govt to ensure that security of that place of paramount importance.

Problems that Art 370 and 35A have caused:
Art 35A created a sort of a division. Those who were not considered permanent residents were discriminated against.

Why only notification was enough and why wasn't there a need to amend the C?
Art 370(1)- can be divided into two separate categories. The first category involves the power of Parliament to make laws and this comes under Art 370(1), clause a and b.
The power of the president comes under Art 370 (1) clause d.
IoA is the basis as it establishes the relation between the 2 entities.
Art 370 only decides the degree of Autonomy.
UA 370(1) those issues which are identified under IOA which id defence, communication and external affairs, which are relatable in subject matter to the union list and the concurrent list, the parliament shall have power to make laws with respect to those with the only consultation required from the govt of the state.
But for those subject matter which falls under these two lists but do not relate to the 3 subjects under IoA you need the concurrence of the govt of the state.
Art 370(1)(d) - it refers to the power of the president to apply other provisions of the C other than Art 1 and Art 370.
President can invoke his powers to apply such other provisions of the C with or without exceptions and modifications and he shall only need to use the notification.
Therefore, the particular notification today refers to Art 370(1) and not to Art 370(3).

Criticism:
The reduction of the status f the state of J&K to a UT albeit with a legislature. This will give a fillip to the concept of the C being more unitary than federal in character.
Pakistan can adopt two-pronged strategies- intensify the infiltration of non-state actors or militants to instigate more civil strife and violence in India in aftermath of this change; Other can be to international rach it up the whole issue of the alteration of the status of 370. They can go back to history and the Un which will have to be scorched.

Timeline:
Constituent Assembly(CA) of J&K was constituted in 1951 after the Indian constitution came in force in January 1950.
The CA framed the constitution(C) in September 1956.
Art 370 was meant to be a temporary provision which decided the working relationship between the union and the state pending the framing of that particular C for the state of J&K.
Therefore, Art 370 goes along with the creation of the C.

Challenges for the govt:
Law and order problem.
Removal of separatist feeling.

Wayforward:
Status of J&K could be restored as a state.
Indis should also qualify concern for the Kargil region where there Shia Muslim and they should also be brought into the inclusivity aspect of the governance of the new UT.
Address the alienation of the youth in the valley.
Have a political dialogue or reach out.


C- Constitution

[saket]

Mr Deepak owns the show. I had goosebumps listening to his unbridled knowledge !!

[satyaprakashmishra]

The poise with his J Sai Deepak Sir expounds such complex issues, is just unparalleled. I am sure he is the best arguing counsel in India ! He is a doyen of the legal profession ! Impressive

[snakecharmer]

Frank is one of the best interviewers who does not jump in but allows the panelists to speak!

[rohantank]

J SAI DEEPAK you are simply amazing I was unable to get clarity of the concept for the entire day. listened to constitutional experts and what not but you cleared it all in 1 full sweep.

[deep]

Who wants to see sai Deepak as judge of supreme court one day....he will be one of the greatest judges .

[vaishalimokhade]

Yes...
Deepak Sir explained too nice... 👌👌👌
I understand very well 👍👍👍
Thank you rstv 🙏🙏🙏😊

[sandip]

Really j sai Deepak sir explained very well regarding the legal aspects.. hatts off sir!

[aryamahima]

Sai Deepak is working really hard to get Hindu temples free from government.

[bharattoindia]

Mr J Sai Deepak 👏👏 package of knowledge.

[jayanti]

when i heard this new, first thing which came to mind was, here comes insightful debate on RSTV featuring the gem J sai deepak, clearing all doubts of mine. thank you RSTV.

[rmns]

My respects to Shri. Sai Deepak. Just to listen and observe his speaking skills is a learning experience.
He has so much control over himself, thoughts and clarity. Enjoyed listening to the panel.


Is it possible to not shout, not interrupt and yet be passionate in a discussion/debate? Yes.

[shinetripathi]

🇮🇳Great day for India,
Great day for unity
Congratulations to our whole country🇮🇳

Thanks rstv.

[NamanToSupreme]

This discussion panel on Art 370 & 35-A is a bench mark in entire spectrum of media & channels...
Inputs by Mr. Sai Deepak is very educative & enriching....
Thanks a lot for bringing such top class deliberation in present day noisy media discussions & debates...