Abrogation of Article 370 has been a controversial topic for debate which has been surfaced time and again as a political weapon. This was one of the main issue raised by the BJP during the 16th Lok Sabha Elections. The reason behind this being in controversy is that, this provision provides for a Special Autonomous Status to the state of Jammu and Kashmir, i.e. all the provisions of the Constitution which are applicable to other states are not applicable to J&K. However, this provision was supposed to be temporary in nature.[1]
To discuss the origin of this provision, we would first have to understand the circumstances it was developed in. In late 1947, Nehru was convinced to believe that Art. 370 is essential since Kashmir was a state with the Pakistanis being majority in population and also, considering the fact that the issue of the Right on Kashmir was referred to the UN. Therefore, understanding the sensitivity of administration of this state, the decision of providing the state with Special Autonomous Status was justified. The accession of Jammu and Kashmir into Union of India was approved by the state assembly in the year 1956.[2]
Since this provision is still valid, a lot of provisions of the Constitution applicable to other States of India are not applicable to Jammu and Kashmir. This state is therefore, provided with respective Constitutional Features along with specific administrative functions. Also, the central government needs to have the consent of the State Assembly if they wish to implement any law in the state, giving them the veto power, except in the fields of finance, External affairs, communication and defense. Further, the power to impose emergency in the state is restricted to only in case of War or External Aggression.
According to the writer, this restriction in the power to impose emergency in the state by the centre is something that is acting adversely for the state. Considering the pattern of population the state follows, it has been witnessing numerable riots among the Hindus and Muslims. This fails its population to believe in Central Government, therefore not agreeing to be a part of In Union of India, as a whole. Other characteristic features or consequences of this provision are application of dual citizenship for the citizen of this state, restriction on purchase of property by anyone outside this state, and no application of Anti-Defection Laws.
This provision not only restricts the administrative influence of the Centre in the state but also curbs the implementation of beneficial laws pertaining to Tax, personal laws i.e. intermarriage with the citizens of other state, property law and laws related to urbanization of the state. Being deprived of such basic benefits or improvements, the citizens of this state must have settled with a deep dissatisfaction from the country.[3]
Article 370 is inscribed in Part XXI of the Constitution of India, which particularly deals with “Temporary, Transitional and Special provisions” implying it to be temporary in nature. However, 60 years down the line, this provision has proved to be more unfavorable to the nation as whole. Creating an analogy of this state with that of a person who is provided with special autonomous status but being deprived of the beneficial facilities that could have been availed when being put together in a group would automatically result in dissatisfaction in the mind of the person. In our case, this person can be related to each and every citizen of the state of Jammu and Kashmir, who do have a special status, but do they enjoy it is the main question. The writer does not question the existence of this provision, since its implementation was essential considering the sensitivity of the time and aggression among people during partition, however, now is the time that this temporary provision should be repealed. The state would do much better with the rest of the nation and vice-versa.
By: Gauri Sharan, Symbiosis Law School, Noida.
References
[1] Tremblay, R. C. (1996). Nation, identity and the intervening role of the state: A study of the secessionist movement in Kashmir. Pacific Affairs, 471-497.
[2] Tillin, L. (2007). United in diversity? Asymmetry in Indian federalism.Publius: The Journal of Federalism, 37(1), 45-67.
[3] Ganguly, S. (2003). The crisis of Indian secularism. Journal of Democracy,14(4), 11-25.
