Article 370: A Solution or Problem for J&K and India !

Recently,a controversial issue has made it to the headlines – “Repealing of the Article 370” - an article that guarantees special status to the state of Jammu & Kashmir from Indian constitution.

First of all, let’s discuss Article 370 – What is it all about, its importance, history, & consequences etc.

Article 370 is an article of the Constitution of India that has granted Jammu & Kashmir a ‘status of special and different state’. It is all about providing ‘space’, in matters of governance, to its people.“Under Part XXI of the Constitution of India, the state of Jammu & Kashmir has been accorded special status under Article 370; which deals with ‘Temporary, Transitional and Special provisions’ given to the state.”Being a ‘temporary provision’, it was to be removed gradually. But this didn't happen till date.Under the same part of the Constitution of India, eleven other states also enjoy special status but only in minor matters. But, the special status granted to the state of Jammu & Kashmir by virtue of Article 370 is unparalleled & unique.This special status delinks the state from rest of the country. It has its own Constitution & is administered accordingly.

History of Article 370 –

(i)   J&K also became independent from British rule on 15^th August, 1947 & its ruler Maharaja Hari Singh decided initially neither to join India, nor Pakistan.

(ii)  Later, under an unexpected political upheaval caused by attack of Pakistani tribal forces, the ruler of the state decided to accede state to India on few commitments like J&K people can govern their own territory, make laws through their own constituent assembly & their internal constitution.

(iii)  Thus according to this commitment, an article, Article 370 was inserted in the Constitution of India, which clearly mentions that its provisions are temporary. It became operational on 17^th November, 1952.

(iv)  The provisions of this Article were drafted in 1947 by Sheikh Abdullah, who was at that time appointed the Prime Minister of Jammu & Kashmir by Maharaja Hari Singh and Pt. Jawaharlal Nehru. 

Now, let’s understand, why this all has been done, what was the main aim behind this commitment?

The basic objectives were -

(a) To ensure the natives of J&K – i.e. Kashmiri people, that their distinct identity would be preserved, and

(b) To placate the Muslims of the Valley who were felling uncertain over their future.

Now, coming on to the consequences of enforcement of this Article, also let’s have a few words about present scenario of relationships between India & the state of J&K as per the provisions of Article 370.

These are enlisted below -

  1. Except for defense, foreign affairs, finance and communications, Parliament needs the state government's concurrence for applying all other laws. Thus, practically it has been given the Veto power.
2. While a citizen of India has only Indian citizenship, J&K citizens have two citizenships.
3. As per provisions of Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. 
4. Under Article 352 which is for declaration of national emergency, cannot be applied in Kashmir.  President can declare emergency in the state only in case of war or external aggression.
5. Part III dealing with Fundamental Rights is applicable to the state with few exceptions and conditions.
6. The Fundamental Right to Property is guaranteed in the state.
7. Part IV dealing with Directive Principles, Part IV A dealing with Fundamental Duties & the Fifth & Sixth Schedules dealing with administration of scheduled areas & tribes respectively are not applicable in the state.
8. The President of India has no power to suspend the Constitution of the state on ground of failure to comply with his directions.
9.  Anti Defection Law is not applicable to J&K. 
10. Any change in the state boundary, or any international treaty affecting the same can be made by the Centre only with the consent of the State Legislature.
11. No outsider can buy property in J&K state.
12. Few special rights are guaranteed to the native citizens of the state, i.e. With regard to public employment, acquisition of immovable property, settlement & government scholarships.
13. Many other beneficial laws i.e. Wealth Tax, Gift Tax & Urban Land Ceiling Act and intermarriage with other Indian nationals do not operate in J&K State in normal ways as rest of India.
14. This article has empowered the State of J&K such that it can refuse building of any cantonment on any site or refuse to allot land for defense purposes.

Recent issue -

So it is thought that the Article is the root cause of all the trouble in the J&K territory and due to the fear of demand for a plebiscite, few political parties have been demanding abrogation of the Article, the demand that has been fanned and intensified in the wake of recent Lok Sabha elections in India and is a matter of intense debate not only in India but also around the world.

Regarding abrogation of the Article 370; few matters that seek attention & related fears that needs to be dispelled are-

1. Inclusion of Article, though, was a temporary feature that was to be gradually eroded (Although an attempt was made in this regard,) but it was never concluded successfully in sixty odd years after it’s incorporation into Indian Constitution.
2. It is generally believed that this Article has encouraged the secessionist elements in other parts of the country.
3. It is the thought of the mainstream that Article 370 has impeded J&K from becoming an integral part of the Indian Union.
4. The Article 370 servers as a reminder to the people of Jammu and Kashmir that it is yet to merge with the country. This impression creates uncertainty.
5. While most of the Kashmiri people regard it as “a bridge between the state and the rest of the country”. The call for an Abolition of this article has raised the apprehensions of the minorities, and this also tends to sow the seeds of discord.
6. Article 370 has provided a mechanism to declare Kashmir as an integral part of India & at the same time it has allowed the people of the State to exercise their option - for either a total merger with India or retain their present identity. A revocation is feared to invite disaster and encourage the anti-national forces demand plebiscite and independence for Kashmir.
7. Also, the demand of abrogation of Article 370 has been intensified by the role of Pakistan in J&K, due to the increase in subversive and terrorist activity in the state of J&K.

Procedure to repeal the Article 370 –

The President of India can declare that Article 370 ceases to be operative with exceptions & modifications. However, this can only be done by the President on the recommendation of the Constituent Assembly of the state.

Conclusion-

As we have read, Article 370 was and is about providing space & empowering people, in matters of governance, when they felt deeply insecure & vulnerable about their identity & future. Additionally this has played role in increasing the accountability of public institutions and services. , decentralization and devolution of power.

The argument that arises now is that - although it was meant to be a temporary clause in the Constitution, it has not been repealed till date. Moreover, as of now it has become a barrier which is promoting and encouraging religious hardliners in the Kashmir valley, also hindering overall & economic development of the state. The increased terrorist & anti- national activities make it the need of hour to think about a logical, feasible, & historical fix for this issue, meanwhile ensuring popular participation & mainstreaming of the natives of the state. Indian government and J&K government should take proper steps for overall peace and prosperity of the state for the benefits of mass.

What do you think about Article 370? How much it is important for the growth of J&K and India?

What are the solutions from you for the very critical J&K issue?

What steps Indian government should take for the benefits of J&K people and for maintaining regional peace and economic growth in Indian subcontinent area?

(Written by Dr. Jot Brar, a practicing Doctor)

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