Bhartiya Samvidhan is the superior law in India drafted by the Constituent Assembly of India and was declared as passed on 26^thNovember, 1949. It is the supreme and foremost law which is applicable to the whole of India. It was enacted on 26^thJanuary, 1950 and laid the foundation for establishment of our Preamble. Currently, there have been one hundred three amendments carried out in Indian Constitution in records, with Jammu & Kashmir’s controversial issue and the insertion of clauses (6) under Article 15 and 16 of Indian Constitution on top of it. These two contemporary issues have been the major advancement under our constitution. Article 370 has governed the accession and relationship of the princely state of J&K with India by providing it special status under our constitution and nullifying Article 370 using the same article as it was a temporary provision providing special status to the state and ending the special autonomous status that the state had enjoyed since the promulgation of the Constitution has been a vast step towards the ban on discriminating provisions laid down by this article. The clauses (6) under article 15 and 16 allow reasonable discrimination and classification as one cannot treat the unequal equally. Therefore, the recent contemporary developments in the field of Constitutional law in India have been revolving around these two major contemporary issues. Both these amendments have been a positive humongous step taken by our Centre in taking a new turn towards reformation in the world’s largest democracy, India.

 Introduction

Bhartiya Samvidhan is the superior law in India drafted by the Constituent Assembly of India and was declared as passed on 26^thNovember, 1949. It is the supreme and foremost law which is applicable on the whole of India. It was enacted on 26^thJanuary, 1950 and laid the foundation for establishment of our Preamble. The preamble forms the base of the Indian Constitution and it demarcates and assures to its entire citizen sovereign, socialist, secular, democratic and republic. The history of Indian Constitution can be traced back in 17^th century when East India company ruled India (1600 – 1947).

There are various acts which played crucial role in our freedom struggle. These acts can be bifurcated into two parts-

1. Important acts before 1947
2. Regulating Acts, 1773
3. Pitt’s India Act, 1784
4. Charter Act, 1793
5. Charter Act, 1830
6. Charter Act, 1833
7. Charter Act, 1853
8. Government of India act, 1858
9. Indian councils act, 1861
10. Indian councils act, 1882
11. Indian councils act, 1909 (Morley- Minto reform)
12. Government of India act, 1919
13. Government of India act, 1935[1]

 

1. Indian independence Act 1947

 

In present date, India is a federal state with 28 states and 9 union territories.It’s  system of government is parliamentary and it is based on the Westminster model.[2] India first came into contact with the west in the early 18th century, when it was annexed by the British East India Company. In the mid-19th century, it fell under British colonial rule. The colonial administration in British India or British Raj – as it was also called – was headed by a Viceroy who also cumulated the title of Governor General until 1947 when a struggle for independence, marked by a widespread non- violent resistance movement resulted in independence from the British Colonial Empire.[3]

 

Development of Indian constitution by way of amendments –

The makers of the Constitution brought the provisions for the amendment[4] with a view to overcome the difficulties which acts as a barrier in the effective working of the Constitution. The leading case of amendment is Kesavananda Bharati v. State of Kerala.[5] The Constitution of India provides for amendment mainly in article 368 of Indian Constitution.[6] Even fundamental rights can be amended under Article 368.[7] Currently, there have been one hundred three amendments carried out in Indian Constitution in records, with Jammu & Kashmir controversial issue on top of it.

There have been various developments made in Indian Constitution beginning from federal structure of our parliamentary system of Government to abrogation of Article 370. The major contemporary developments in the Indian Constitution by way of amendments are the abrogation of Article 370 and the addition of clauses (6) under Article 15 and Article 16 of Indian Constitution.

 

Article 370- Meaning, Impacts on Jammu & Kashmir-

Article 370 came into force on November 17, 1952. Article 370 in Part XXI of the Indian Constitution grants a special status to Jammu and Kashmir but as the article 370 itself suggests in the Indian Constitution that it is a temporary provision it can be amended. Till August 4, 2019; it was the only Indian state which has its own separate state constitution and National Flag. But now J&K will neither have separate Constitution nor separate National Flag for itself.

 

Article 370 has governed the accession and relationship of the princely state of J&K with India by providing it special status under our Constitution. Many political leaders from Kashmir have warned that revoking the Article will mean breaking that relationship and will result in curfew. The separatists have been cocky, holding that it had already been rendered meaningless through repeated amendments, and the state can be gutted in the conflagration which is sparked by the abrogation of the said Article.

The unchallenged Muslim Kashmiri leader of the time, who is known to be the father of the community/nation to his people, was given a freedom of choice in 1947; he could join a Muslim nation, or choose a secular one, in which the people of Kashmir would be secure in their distinct identity. The Kashmir freedom movement aimed to rid Kashmir of despotism; it worked parallel to the national movement, but was not part of it. Despite efforts by Hari Singh’s prime minister, Ramchandra Kak, in eliciting the Kashmiri leader’s support for independence, the latter stood steadfast in his demand for an end to the monarchy. India’s then Viceroy, Lord Mountbatten urged Singh not to make a declaration of independence. He conveyed Vallabhbhai Patel’s message that, “the States Department were prepared to give an assurance that, if Kashmir went to Pakistan, this would not be regarded as unfriendly by Government of India”. But then, the state faced an uprising by Poonchi troops of the British Indian Army’s decommissioned sixth Punjab Regiment, followed by a military rout of state forces by frontier tribesmen on October 22, 1947. The Maharaja turned in desperation to India.[8]

 

Jammu & Kashmir is granted autonomy under Article 370 of the Indian Constitution. It is a ‘temporary provision’ that accords special status to the state. The provisions of the Constitution are not applicable to J&K, unlike other states except finance, defense, communications and foreign affairs. Central government needs the consensus of state government for applying all other laws.

Under this article, residents of Kashmir follow separate set of laws in terms of citizenship, property ownership, and other rights, giving birth to the concept of dual citizenship within India. Moreover, as per Article 370, the power of Parliament to make laws for the said State is “limited to those matters in the Union List and the Concurrent List.” It doesn’t have the authority to increase or reduce the borders of the state. Hence, the article was drafted by N. Gopalaswami Ayyangar (Nehru confidante) in 1949 which was opposed by Dr BR Ambedkar, who found it discriminatory and against the interest of India. Despite Jawaharlal Nehru’s promise that Article 370 will be gradually abrogated, it has not happened even after more than six decades have whiled away and now when it has been abrogated, it is being continuously challenged at international level.[9]

 

After the abolition of article 370 in the Indian constitution, the drastic changes which amended Schedule 2 and Schedule 4 are:

1. Now the J&K will be divided into two states i.e. J&K and Ladakh.
2. Both Ladakh and Jammu and Kashmir will be Union territory. But there is a difference in these Union Territories; Jammu and Kashmir will have a state Legislative Assembly like Delhi and Puducherry while Ladakh would be a Union Territory without Legislative Assembly like Chandigarh and Dadra Nagar Haweli etc.[10]

 

 

 

Is Article 370- a complete revocation?

 

In accordance with Article 370(3), “The President may, by public notification, declare that this article shall cease to be operative, provided that he receives the recommendation of the Constituent Assembly of the State (Kashmir).” To put it in layman terms, currently Modi Government holds the position of constituent assembly; as the ruling government. Article 370 can be revoked only if a new Constituent Assembly of Kashmir recommends revocation. Since the last Constituent Assembly was dissolved in January 1957 after it completed the task of framing the state’s Constitution, so if the parliament agrees to scrap Article 370, a fresh constituent Assembly will have to be formed. The constituent Assembly shall consist of the same MLAs elected to the State Assembly. The Centre cannot repeal Article 370 without the nod of J&K State. Technically, the provision of Article 35A under Article 370 is scrapped.

 

There have been many controversies in regards to the revocation of Article 370. Many leaders and countries have stated their opinions which are highly disputed even under international forum. There have been discrepancies amongst the views of many Indian Hindu leaders and Muslim parties such as AIMIM president slammed the ruling government and said that abrogation of Article 370 is a ‘historic mistake’. The AIMIM chief further questioned the restrictions in Jammu and Kashmir and dismissed the government’s claim of normalcy in the Valley.[11] Even in a statement made by AICC General Secretary, she claimed ‘the revocation of Article 370 to be illegal’. Countries like Pakistan challenged the abrogation of Article 370 and approached the international forum where they tried to intervene in the internal affairs of India.

 

The President of India, Ram Nath Kovind officially declared that all the provisions of Indian Constitution shall now apply to Jammu & Kashmir after the revocation of Article 370. Thus, nullifying Article 370 using the same article as it was a temporary provision providing special status to the state and ending the special autonomous status that the state had enjoyed since the promulgation of the Constitution has been a vast step towards the ban on discriminating provisions laid down by this Article. Under Article 370, J&K had its own constitution, which empowered the President of India to decide which provisions of the Indian Constitution would be applicable within the state of J&K but only with the assent of the state.

 

Comparative Analysis of prior and subsequent scenarios at J&K-

Impacts on resident of J&K prior to revocation-

 

• Prior to the revocation of Article 370, the State had enjoyed special status in India irrespective of other States. Although, the provision was temporary yet the State was the sole enjoyer of the special status granted by the provision and article 35A gave a special right in determining the permanent residents of the State. The residents of PoK were also at profit during the continuance of the tenure of the said Article.

 

Impacts on resident of J&K subsequent to revocation-

 

• There has been a tensed atmosphere in the territory of J&K after the revocation of the controversial Article even though the Kashmiri politicians had warned the Centre to refrain from making such a move. The Centre had issued notification in official gazette revoking the special status granted to the State.[12] Many Kashmiri people are elated with the historic move taken by the Centre as it has attracted many investors and investments being taken place at J&K will contribute to its development, revenue generation and employment opportunities. Tourism in Kashmir will gain more momentum and it will begin contributing to the State’s GDP.

 

Just as each coin has two sides, along with the positive impacts, negative impacts have also hit people of the territory. The severe negative impacts were-

 

• Environmental Changes as the industries will start growing; it will lead to pollution & adverse effect on the nature along with drastic climate change. The primary water resources which are currently drinkable will undoubtedly get polluted. Air pollution will increase drastically. Deforestation will also be at rise.

 

• Population Blast: No population blast is yet seen in J&K as seen in other major cities of India. Revocation of Article 370 will inevitably lead to increasing the population density of the state and resource overuse hampering with the sustainable development.

 

• Identity Crisis: Society will no longer be almost Dogra, Kashmiri and Ladakhi as Ladakh has now been separated which will also lead to resource overuse in the state of J&K. Other linguistic groups will also become dominant in the society, snatching the identity of the locals of the State. The subjects under the State list in our Constitution will become Invalid. Thus, Students will no longer be able to get Centre based scholarships.[13]

The Centre had cleverly used the power imposed upon them by article 370(3) to abrogate article 370 of Indian constitution.

 

Another round of advancement in our constitution by way of addition is the introduction of two new clauses under Article 15 and 16.

 

What is Article 15(6) & 16(6)?

 

Article 15 & 16 comes under Part III of Indian Constitution based on right to equality and prohibition of discrimination by the State on the basis of religion, race, caste, sex, place of birth and equality in matters of public employment respectively.[14] These clauses are the result of the 103^rd amendment under the Constitution. Both these clauses inserted under Constitution provides for 10% reservation for the economically weaker section of the people falling under the general category. This happened for the first time in the history of India after independence that reservation quota has been fixed for people belonging to general category unlike SC/ST or OBC’S.

 

Whether 103^rd amendment violative of Part III of Constitution?

 

The 103^rd amendment is considered to be non- violative as it does not violate article 14. The said article does not completely prohibit discrimination; it allows reasonable discrimination and classification as one cannot treat the unequal equally. The provision has been inserted for economically weaker sections of citizen which is not violative of any provision under the Indian constitution. The Constitutional amendment (103rd) Act 2019 was necessitated to benefit the economically weaker sections of the general category people of our society who were not covered within the existing schemes of reservation under the constitution.[15]

 

In reference to a leading case, the ceiling limit of reservation set under the said Articles 15 and 16 was 50% and exceeding such limit would result in arbitrariness and absolutism of the said article. Even the Government appointed an Expert Committee to recommend the criteria for exclusion of advanced sections of socially and educationally backward classes (SEBCs), i.e. the creamy layer. The insertion of following clauses by 103^rd amendment has also been disputed to be violative of the Preamble of our constitution on the basis of these grounds-

1. Economic criteria cannot be the sole basis for reservation.
2. Economic reservation cannot be limited to general categories.
3. 50% upper limit cannot be breached.
4. Imposing reservations on unaided institutions is manifestly arbitrary and violative of Article 19(1) (g).[16]

 

Therefore, in order to judge whether a constitutional amendment is violative of constitution, the question which is needed to be addressed is whether the said amendment would lead to a collapse of the edifice of the Constitution. Merely affecting or impinging upon an Article embodying a feature that is part of the basic structure of our Indian constitution is not sufficient to declare an amendment unconstitutional.[17]

 

Conclusion-

 

Hence, the recent contemporary developments in the field of Constitutional law in India has been revolving around two major contemporary issues; firstly, the abrogation of Article 370 which led to outrageous atmosphere throughout the nation and secondly, the insertion of clauses (6) under Article 15 and 16 of Indian Constitution which has been continuously disputed of being violative of our Constitution. Despite these issues, both these amendments have been a positive humongous step taken by our Centre in taking a new turn towards reformation in the world’s largest democracy, India.

 

By-

Kakoli Nath (BBA.LL.B)

Garima Chaudhary (BBA.LL.B)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1]ARIHANT PUBLICATIONS (INDIA) LIMITED, COMMON LAW ADMISSION TEST (1^st ed.2015).

[2]Arihant, supra note 1, at 111.

[3]Constitutional history of India, CONSTITUTIONNET, Sept. 09, 2019, at 10:04 A.M,  http://constitutionnet.org/country/constitutional-history-India ,

[4] A formal revision or addition proposed or made to a statute, Constitution, pleading, order, or other instrument and in Parliamentary law, Black’s Law Dictionary

[5] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

[6] Kapil Raina, Amendability of Indian Constitution with reference to Fundamental rights, LEGAL SERVICE INDIA, Sept. 09, 2019, at 1:24 P.M, http://www.legalserviceIndia.com/article/l19-Amendability-Of-Indian-Constitution.html

[7] Shankari Prasad v. Union of India AIR (1951) SC 458.

[8]Wajahat Habibullah, Revocation of Article 370 could trigger a sense of betrayal in Kashmir | Opinion, HINDUSTAN TIMES, Sept. 16, 2019, at 9:36 A.M, https://www.hindustantimes.com/opinion/revocation-of-article-370-could-trigger-a-sense-of-betrayal-in-kashmir/story-NQYFM6xWEq023upE37S4WN.html

[9] What is article 370, WORDPRESS, Sept. 12, 2019, at 10:17 A.M, http://www.elections.in/political-corner/what-is-article-370/

[10] Hemant Singh, Article 370 Scrapped: Impacts on Jammu & Kashmir, JAGRAN JOSH, Sept. 12, 2019, at 10:08 A.M, https://www.jagranjosh.com/general-knowledge/article-370-scrapped-impacts-on-jammu-kashmir-1564998404-1

[11]Asaduddin Owaisi , ‘Revocation of Article 370 a ‘historic mistake’, timesofindia, Sept. 16, 2019, at 9:22 A.M,  https://timesofIndia.Indiatimes.com/videos/news/revocation-of-article-370-a-historic-mistake-asaduddin-owaisi/videoshow/70672695.cms

[12] Explained: Article 35a & 370, BYJU’s IAS, Sept. 25, At 10:15 A.M, https://youtu.be/j3-BtNYYvAI

[13] Sanket Khajuria, How is the revocation of Article 370 good for the people of Kashmir,  Sept. 23, 2019, at 2:12 P.M, https://www.quora.com/How-is-the-revocation-of-Article-370-good-for-the-people-of-Kashmir

[14]J.N PANDEY, CONSTITUTIONAL LAW OF INDIA (2016).

[15] Janhit Abhiyan v. Union of India, WRIT PETITION (CIVIL) NO. 55/2019.

[16]See Id. at 2 (discussing the upper limit of reservation to be limited to 50%).

[17]See Id. at 6 (explaining that an amendment should not lead to a collapse of the edifice of the Constitution).