Article 370 Of Constitution : An Instrument Of Unity Or Divide ?


Article 370:

Article 370 of the Constitution guarantees special semi-independent status to the state of Jammu and Kashmir. The article is outlined in Part 21 of the Indian Constitution, which defines it as temporary, Pro tem and Special Provision. Hence Article 370 was never seen as an immutable statute. It was a temporary resolution. The state legislative assembly had powers to suggest the substitute Indian constitutional provision to revoke the Article 370. The state constituent assembly dissolved itself without suggesting any alternate rule. Hence the Article 370 has now become a kind of permanent attribute of the Constitution.

Article 370

Thus the residents of the state (state subjects) live under a different set of laws, including Citizenship, property ownership, and state rights, as a contrast to other Indians.

The center cannot declare an economic emergency under Article 360 in the state. It has powers to announce the emergency in case of war or foreign aggression. Without the permission of the State, Centre cannot redefine the name and boundaries of the State. Just remember Jammu and Kashmir are not the only states, there are similar provisions for the many Indian States in Article 371 and Articles 371-A to I.

In October 1947 King Hari Singh signed the “Instrument of Accession” and officially become the part of India. The main point of this pact is that Jammu and Kashmir will be autonomous except jurisdiction over Defense, Communications, and External affairs. These three areas will be under the Union government of India.

What Was the Need of Article 370?

Article 370 inserted in the Constitution. What circumstances are responsible for this? Maulana Hasrat Mohini, questioned in the Constituent Assembly: “Why this favoritism?”

Ayyangar (Father of Article 370, Diwan to Raja Hari Singh & a minister without any rank in the first Union Cabinet), stated that “for a variety of reasons, Kashmir, was not yet Mature enough for integration (unlike other royal states). India had been at war with Pakistan over Jammu and Kashmir, and while there was a ceasefire, the conditions were still “unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies.”

Later, The UN also jumps in this dispute. For UN, it was a complicated “entanglement” which would go away only when the Kashmir issue is reasonably resolved.

So again Ayyangar made a statement that “ The will of the lakhs of people by the instrument of the Jammu and Kashmir Assembly can determine the constitution of the State as well as the power of Union government over the State autonomy.” Moreover, there was a trust that Jammu and Kashmir would one day incorporate like other States (That is why the term “temporary” is there in the title of the Article 370). This is only possible when there is peace in the state, and the people of Jammu and Kashmir accepts India as their home.


Also Read   Article 35A Of Indian Constitution


Final Negotiations for Article 370 Draft:

During the negotiation process of the provisions of Article 370, there was a massive conflict between Ayyangar and Sheikh Abdullah (emerging leader of Kashmir that time). Ayyangar even threatened to resign once. Since Pandit Jawahar Lal Nehru was in the USA to address US Congress, Ayyangar asked Sardar Patel for help. Patel had already some issues with Sheikh Abdullah, but he agreed to sit on a table with him. Later it was Sardar Patel in the end which lead this conflict and steer almost all amendments Sheikh demanding through the Constituent Assembly. And finally, the efforts of Sardar Patel ensure that Article 370 became part of the Indian Constitution.

Is It Still In Its Original Form??

Many presidential orders have time to time weakened the Article 370 to a large extent. Many union laws were made applicable to Jammu and Kashmir through the Presidential decree. So one can even say that present “autonomy” of the state is just a shadow of its original form. Virtually there is no any Indian state instrument that has no jurisdiction over Jammu and Kashmir. The only considerable difference is property rights, permanent citizen clause and emergency declaration power of the Center.


Pluses of Article 370 For Jammu and Kashmir:

  1. It is the key to keep the Kashmir valley intact to rest of the India or save from invasion.
  2. It is a proof with documents India has, unlike Pakistan. Hence India has a valid, legal reason to claim over Jammu and Kashmir in Global eyes.
  3. Less pollution than the rest of India as there is a small number of heavy industries.
  4. The cost of living is low as compared to other states; the population is also tiny.
  5. Enough land is available for the state itself to use for various useful purposes like school, colleges, roads, hospitals, and agriculture.
  6. Lesser competition for state students as there is no one coming from other states to compete against them for Engineering, medical, etc.
  7. To Maintain demography and inland quality of the state, Article 370 is helpful. I think Article 370 is the reason that there is no significant change in the demography of the state since independence.
  8. Parliament of India can not forcefully impose any law on them. Only the elected state assembly has the power to enact laws for its citizen. Though it should be fundamental practice in every state to have “Co-operative federalism,” but as the whole nation sees what the central government is doing with elected Arvind Kejriwal led Delhi government, This provision of “No interference” seems to be quite right.
  9. Jammu and Kashmir are the heavens on the earth luring tourists from all over the world. The tourism sector is the lifeline for the Kashmiri people. Clean environment, less population, less industry and ancient demography is all because of section 370.

Minuses of Article 370:

Everything has its Pro and cons. Article 370 is not the exception. Though our constitution-makers find it necessary to keep it in the book, it has some flaws too:

  1. There is a lack of “Indianness” feeling in Kashmiris because of Article 370. They feel themselves to be different or unique than rest of citizens. They have their separate Constitution and Flag.
  2. It denies the fundamental Right to Equality for women. Sharia law is applicable there (we know how this orthodox shit treats women). And there are also different property rights for males and females.
  3. It denies fundamental right to settle and buy assets anywhere in the country. Under Article 19 (1) E & G, an Indian citizen has right to buy property and permanently reside anywhere in India. But Article 370 null and void this section of Indian Constitution.
  4. As no Indian citizen can get citizenship in Jammu and Kashmir, hence can not vote in any election.Does not matter, how long he is living there.
  5. Limited industry. As no outsider can buy land there, industrialists hesitate to invest in Jammu and Kashmir. So industrial growth is negligible.
  6. J & K is consist of Leh, Ladakh, Jammu, and Kashmir. But Kashmir Valley being an International Issue, rest of the three always ignored. In my views, Article 370 is the reason.
  7. Job Refusal. 370 does not allow other Indian students to get jobs in Jammu and Kashmir. All jobs are for “State subjects.”
  8. No student from other parts of the country can compete in Jammu and Kashmir state exams. Less competition makes the growth of students lazy and pointless.
  9. Lack of proper medical facilities as the Private sector is negligible in the state. And we all know, how government machinery does in this field.
  10. Though there is no enough evidence, theoretically, due to unemployment; youth is moving toward militancy for money (Militancy has bigger reasons too).
  11. Indian Supreme Court has no jurisdiction over State subjects.
Article 370 two Flags
Separate Flag of Jammu and Kashmir

Can Union Government Remove Article 370 Unilaterally??

  • It seems to be impossible in the near future as it isn’t the part of the common minimum program (CMP) of BJP-PDP government in Jammu and Kashmir. To abrogate Article 370, BJP needs to give up the lust of power in the state and work toward its abrogation.
  • The 3rd part of Article 370 has the mechanism to remove the section. Article 370 is a “temporary & a transitional provision.” Clause (3) of Article 370 says:“The President may by a public order, declare the Article 370 to halt. But the president cannot release such an order without the agreement of Legislative Assembly of Jammu and Kashmir.” Assembly of Jammu and Kashmir was given powers to recommend substitute of the Indian Constitution to be applied to abrogate Article 370 altogether. But as it dismissed itself prematurely, the provision has become almost permanent since then.
  • Many rulings of the Supreme Court and the High Court of Jammu and Kashmir establish this article. Latest was in October 2015, High Court of Jammu and Kashmir ruled out that; “Article 370 cannot be abrogated, revoked or even amended without the permission of Jammu and Kasmir Assembly.

Is There Any other way to Revoke this Article??

  • Reconstitute the Assembly in Jammu and Kashmir. However, this will nullify all the other decisions of previous assemblies including the resolution that “Jammu and Kashmir is an indispensable part of India.” It will be like writing the constitution of the state once again. I don’t think the present BJP or any other government would risk this big.
  • The majority of the Constituent Assembly recommends the President to revoke the Article 370. This too is not possible seeing the current BJP-PDP government CMP.
  • The Central cabinet decides & recommends the President to revoke the Article 370.  And the President signs the abrogation order.
  • This matter goes to SC, and on the basis of “Right to Equality” discrimination, Supreme Court Nullifies it.

 

Add a Comment

Your email address will not be published. Required fields are marked *