HISTORY OF ARTICLE 370
On October 26, 1947 Hari Singh, the Maharaja of Kashmir, signed the Instrument of Accession of Kashmir to the Dominion of India. Under this Instrument, he surrendered the jurisdiction of three subjects – Defence, External Affairs and Communications to the Central Government. Lord Mountbatten, presumably with the knowledge and consent of Pt. Nehru, unwisely insisted that the final decision of the accession would be ratified by the Constituent Assembly of Jammu & Kashmir.
It was a Himalayan blunder committed by Nehru because neither Maharaja Hari Singh nor Sheikh Abdullah demanded the ratification of the Instrument of Accession by the Constituent Assembly of Jammu and Kashmir. On the other hand it was actually wrong on the part of the Government of India to insist on the ratification.
For the transitional period, from the date of execution of the Instrument of Accession to its ratification by the Constituent Assembly of Jammu and Kashmir, some temporary provisions in the form of Article 370 were made in the Indian Constitution. This article specifies that the State must concur in the application of laws, except those that pertain to Communications, Defence, Finance, and Foreign Affairs. Subjects other than those could be extended with the concurrence of the state government. The executive of the state was thus being given a legislative function in regard to the Constitution under which the people of the state were to live. This is how Article 370, which made the bulk of the Indian Constitution inapplicable to Jammu and Kashmir, was incorporated in our Constitution.
The State of Jammu & Kashmir henceforth had a separate constitution governing the state and a separate penal code, The Ranbeer Penal Code.
Article 370 of the Indian constitution is an article that grants special autonomous status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution, which relates to Temporary, Transitional and Special Provisions. The state’s constituent assembly was empowered to recommend the articles of the Indian constitution to be applied to the state or to abrogate the Article 370 altogether. After the state constituent assembly has dissolved itself without recommending abrogation, the Article 370 is deemed to have become a permanent feature of the Indian constitution.
Under the Article those parts of Indian Constitution which pertained to Defence, External Affairs and Communications could be extended to Kashmir in consultation with the state government. The parts that dealt with subjects other than those could be extended with the concurrence of the state government.
Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.
Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
PROS AND CONS OF ARTICLE 370
- Less pollution due to less industrialisation.
- Adequate land in the state which can be put to good and beneficial use for the state itself.
- Less competition for students of J&K as no other state’s students come to compete in state medical and engineering exams.
- is a key point to secure Kashmir from invasion as it maintains the status of J&K with Union of India
- Helps to maintains India’s claim over Kashmir in world’s eye as India has some documented proof.
- Maintains the inland quality because the state is not populated with people from different states.
Article 370 though has a fair number of pros on its side but the inevitable cons cannot be ignored at all.
1. Denial of fundamental right to settle permanently and purchase property
Under Article 19 (1) (e) and (g) of our Constitution, it is fundamental right of the citizens of India to reside and settle permanently in any part of the country. But Article 370 deprives the citizens of India of the right to purchase property and settle permanently in Jammu and Kashmir but citizens of Jammu and Kashmir can buy property and settle in any province of India.
2. Deprivation of the right to vote
The citizens of India cannot become the citizens of Jammu and Kashmir. Due to Article 370, they are deprived of their right to vote in the elections to the state assembly or municipal council or panchayats.
3. Denial of Jobs
On account of Article 370, Indian citizens cannot get jobs in the state of Jammu and Kashmir. All the jobs in the state are reserved for the citizens of the state.
4. Victimization of Hindu Immigrants – Supreme Court helpless:
On account of unholy partition of our holy Motherland, unfortunate Hindus were ousted from their ancestral homes in West Pakistan. A few thousand Hindu families migrated to Jammu and Kashmir and settled there. Though, fifty five years have elapsed since their migration, yet they, their children and even grand-children have not been granted citizenship on the ground that outsiders cannot settle permanently in the state on account of Article 370.
5. Incapability to alter the boundaries of Kashmir
Under Article 3 of the Indian Constitution, the Parliament has the right to change the boundaries of any province, provided the President consults with the authorities of the concerned province before signing the bill. But, on account of Article 370, the Parliament of India cannot alter the boundaries of Jammu and Kashmir. For doing so, it has to seek approval from the Constituent Assembly of Jammu and Kashmir.
ARTICLE 370 AT PRESENT
Article 370 of the Constitution is the current bedrock of the constitutional relationship between Jammu and Kashmir and the rest of India. With its abrogation being an avowed policy of the Bharatiya Janata Party, the J&K High Court’s recent observation that the provision has acquired a state of permanence may cause some disquiet in the party and the government. However, the High Court’s comment should be seen in the limited context in which it was made. Its remark that Article 370 is beyond amendment, repeal or abrogation flows from an analysis of the question whether the section had become inoperative after the State’s Constituent Assembly framed its Constitution, and then the Assembly itself ceased to exist.
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Paridhi Trivedi Parikh | Hardik K. Parikh
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Disclaimer: The views mentioned above are based on the authors’ opinion and experiences.We do not take responsibility for any decision that might be taken, based on these views/ information.