Disha Mazumdar writes about the need to abrogate Article 370 which gives special status to the State of Jammu and Kashmir.
INTRODUCTION
Kashmir better known as “Paradise on Earth” is a place which can mesmerize people with her beauty. The beautiful snow covered mountain peaks, magnificent lakes, flowering meadows and beautiful gardens with those delicious apple trees gives it a fairytale effect. But can this fairytale effect be felt in the present times when the state of Jammu and Kashmir is facing tremendous hatred and atrociousness due to its autonomous power guaranteed under article 370 of the constitution. Is it creating separation between the Union of India and the state of Kashmir or is it just giving the people of Kashmir an opportunity to develop? Is it a temporary or permanent provision and can it be amended ? This article would answer all the questions raised and illuminate the concrete points on how it is important to sustain Article 370.
HISTORY
When India got independence from the British, the country was divided into two separate nations India and Pakistan. But unlike the other princely states, Jammu and Kashmir decided not to be a part of India or Pakistan and remain as an independent state, but as soon as the territory of Pakistan was formed it attacked Kashmir and the king Hari Singh sought help from India. Sardar Vallabhai Patel popularly known as the iron man of India, asked the king to sign the instrument of accession just like the other princely states. The Indian Army stopped Pakistan and tried to help Kashmir which lead to the first war between India and Pakistan. But Jawaharlal Nehru ceased the war and hence Indian army couldn’t liberate the entire state and since then 55% of the state is covered by Pakistan while 45% of it is ruled by India .This lead to the incorporation of article 370 in the constitution after lot of debate and discussion between Jawarharlal Nehru, Sheikh Abdulla and B.R Ambedkar . Sheikh Abdulla the Prime Minister of Jammu and Kashmir negotiated that Kashmir would join India only under special circumstances which gave them special rights.This was completely denied by B.R Ambedkar as it was betrayal of national interest but as Jawaharlal Nehru supported it,the article was drafted by Gopalswami Ayyengar (a minister without portfolio in Nehru’s government)which lead to major outrage in the country.
PURPOSE OF ARTICLE 370
In the constituent assembly of Kashmir it was discussed by Gopalswami Ayyenger why Kashmir needed the special provisions. He said that the condition of Kashmir was unusual and abnormal, there was an existence of ceasefire and the conflict between India and Pakistan for the territory of Kashmir made it worse.The state was still in the hands of rebels and enemies. The Government of India also promised that it would not interfere with the policies and give opportunity to decide for themselves and involvement of United Nations to this conflict created more problems.Clause7 of the Instrument of Accession gave power to Jammu and Kashmir to draft its own constitution and give special status to the state under article 370.
WHAT IS ARTICLE 370?
Article 370 of the constitution provides special autonomous power to the state of Jammu and Kashmir. The article is drafted in the part XXI of the constitution under the temporary provisions. The words consultation, concurrence and recommendation of the state Constituent Assembly in the provisions of article 370 gives enormous power to the State Government of Kashmir and no laws can be made without the consent of the State Government except in case of finance, communication, defence and foreign affairs.
The state legislative assembly of Jammu and Kashmir has a term of six years whereas the other states have a term of five years.
The Supreme Court of India has no jurisdiction in Jammu and Kashmir and the borders of the state can’t be changed by the Parliament of India . The citizens are governed under the constitution of the state and majority of Indian laws are not applicable and the Centre has no power to declare financial emergency under article 360 in this state.
Jammu and Kashmir has two flags, a state flag and a separate national flag, insulting of national symbols is not a cognizable offence in Jammu and Kashmir. The residents of this state enjoy dual citizenship. The permanent residential rights allow the citizens of Kashmir to purchase land and no other individual can purchase land. If a woman marries a man of other Indian state then she loses her citizenship but if she marries a Pakistani it is retained. A Pakistani marrying a Kashmiri women would be entitled for the citizenship the residential rights of the citizens are retained.
IMPORTANCE OF ARTICLE 370
Many people including the Ministers of the ruling party had objected the existence of article 370 of the constitution but the purpose of this article makes it important and mandatory to sustain. The king of Jammu and Kashmir signed the instrument of accession to be a part of union of India and hence article 370 was incorporated, which guarantees the special status. If Article 370 is abrogated then the relationship between the state of Jammu and Kashmir and the Union of India ceases to exist. Article 370 also the state of J&K to have its own constitution if the article is abolished then the constitution itself becomes void. Now the question comes whether the article creates a sense of separatism? The answer would be no, the article doesn’t create a sense of separatism infact, it takes care about the active participation of the vulnerable, unprivileged and ignored people. The power becomes more decentralised , the people participate in the policy formation and the making rules for themselves indirectly.
Article 370 being a temporary provision which can be declared void if the President gives his order by public notification which shall be approved by the state Constituent Assembly. But the Constituent Assembly didn’t give such recommendation before its dissolution in Jan 25th 1957 therefore even though it is mentioned under temporary provisions article 370 becomes permanent and hence it can’t be amended or abrogated. The interpretation of the word temporary has been wrongly done. Nowhere in the Constitution the word temporary has been defined, whether temporary means a period of one year or one month?
Article 370 truly follows the sense of federalism. No financial emergency under article 360 can be declared in the state of Jammu and Kashmir. More job opportunities are created for the people and the permanent residents of the state can own land which prevents the outside encroachment. Article 370 is the backbone of the relationship between J&K and the union of India hence it is impossible to abrogate.
