ARTICLE 370: THE BEDROCK OF JAMMU & KASHMIR PROBLEM

This article was written by Santosh Sharma, a student of Banasthali Vidyapith, Rajasthan.

 Introduction:

 Indian Constitution is the largest constitution in the world with its distinct features. It is a backbone all other laws in India. Constitution of India is mixture of various provision of different   countries constitution. In India there is 29 states, all states have their uniqueness and diversity, but the unique feature of it is that It provides similar treatment for all the states except in certain circumstances .One of the such exceptional circumstance is Article 370 of Constitution of India which provides special status to Jammu and Kashmir.

Article 370 concern with special status of Jammu & Kashmir i.e. temporary provision. This article embodied in the Indian Constitution after debate held on October 17,1949 in constituent assembly where Mr. N. Gopalaswamy Ayyangar enumerated the peculiar conditions predominating in J&K due to which special status conferred upon J& K is significant.[1]

Historical Perspective:

When India got independence it partitioned in India and Pakistan by Independence Act, 1947,but the problem regarding J&K i.e. princely state was not solved because it is not ready to Integrate with India. The Maharaja Hari Singh, ruler of J&K affirmed Jammu and Kashmir as a independent nation in 1947 because it neither want to become the part of India nor Pakistan .Thus Maharaja Hari Singh of J&K come up with a ‘Standstill Agreement’. It was signed by Pakistan but not by the India. After declaration of Independence of Kashmir Pakistan forthwith launched a ‘guerrilla war’ intended to free the region of majority Muslim people from Hindu rule. The Maharaja who himself was Hindu approached for aid to Indian government and signed an agreement on 26 October, 1947 known as “Instrument of Accession”. This was accepted By Lord Mountbatten, Governor General of India on 27 October, 1947.

Clause 5 and clause 7 of Instrument of Accession is very important .Clause 5 states that “the terms of instrument of accession shall not altered by amendment in any act or in Indian Independence Act, 1947 except by an instrument supplementary to instrument of accession”. Clause 7 states that “State could not be compelled to accept any future Constitution of India. The State was within its rights to draft its own Constitution and to decide for itself what additional powers to extend to the Central Government”.

When partition of British India takes place Lord  Mountbatten suggest Pt. Nehru to place the issue of conflict of J&K to the United Nation but Sheikh Abdullah ,the appointed Prime Minister Of J&K persuaded Nehru to confer special status to Jammu and Kashmir because he want to rule in princely state.

Therefore the provision of Article 370 was inserted to give effect the provision of this Instrument of Accession. The recent controversy regarding Article 370 is not only exists in present but opposition was exists in past also. A great thinker and poet Maulana Hasiat Mohini  put a question in debate held in constituent assembly regarding the incorporation of Article 370 that “why this discrimination please”. Even the ‘Father of Constitution’ Dr. B.R. Ambedkar and Sardhar Vallab Bhai Patel also resist the insertion of Article 370 because it was a means of discrimination between states.  But the Pt. Jawaharlal Nehru who was prime minister of India Favored the incorporation of this article because the  J&K i.e.  princely states is not ready to merge with India and war was also going on over it  with Pakistan and sated that it is provisional  provision and will repeal  over a period of time.

Article 370 of Constitution of India:

Special provisions enshrined in this article are following:-

1. Article 238 of Indian Constitution will not apply on J&K which deals with reorganization of princely states.
2. The state was allowed to have its own constitution.
3. Extension of legislative power of central Government is limited to foreign affairs, defense and communication.
4. Other legislative powers of Central government conferred by the Constitution could be extended only when state legislature accept it. The ‘concurrence’ was only temporary .It can be ratified by the state Constituent assembly.
5. If the state constituent assembly conveys the power, the state legislature authority of ‘concurrence’ is extended up to that extent only. When, it finalized or determines the power, further extension of power is not possible.
6. Abrogation or Amendment of this article depends upon recommendations made by state constituent Assembly. [2]
7. Article 1 of Constitution will apply on state of J&K.

Analysis of Article 370:

After the commencement of Constitution in pursuance of Article 370 the Constituent Assembly of J&K was constituted in 1951 by election based on adult franchise that was swept by sheikh Abdulla National Conference. In 1952 the Sheikh Abdulla and Pt. Nehru entered into an agreement in Delhi known as ‘Delhi Agreement’. It was admitted that the government of J&K have complete power on the all matters of state except matters enumerated in Instrument of Accession i.e. foreign affairs, defense and communication over which central government have power. This agreement was entered to establish the relation of J&K with India. The J&K Constituent Assembly ratified it on 6 Feb, 1954 and recapped its special relationship with Indian Government. The Constitution of J&K enforced in 1957.

Article 35A of Constitution is the outcome of Delhi Agreement which authorize state government to make difference between ‘permanent residents’ and ‘non permanent residents’. It provides following special privileges to the permanent residents of Kashmir :

i)They have opportunity of employment under the state government;
ii)They Can acquire the immovable property in the state;
iii) They can settle in the J&K state;
iv)They have a right in scholarships provided by state government.[3]

It means that non permanent residents cannot avail these rights and privileges .On the basis of residence it makes discrimination between permanent residents and non permanent residents of J&K. Moreover, this article is not subject to judicial review or judicial scrutiny. The Permanent Residents defined In Constitution of J&K. This Article was inserted by presidential order in 1954 issued under Article 370(1)(d) without going through the procedure of amendment provided under Art. 368 Of Indian Constitution. So, it can be said this Article was arbitrarily incorporated without any procedure.

Article 370 concern with special status of J&K. In pursuance of This Article following Special status conferred upon J&K:

• Kashmir citizens have their own citizenship as well as Indian Citizenship i.e. dual citizenship.
• Jammu and Kashmir have their own Flag.
• The term of Constituent Assembly of J&K is 6 years and in other states this term is five year.
• Union government can make law with respect to foreign affairs, defense and communication for J&K state.
• If a women marriages to a Pakistani, her citizenship will be continued but if she marriages with residents of other states then her citizenship of J&K will cease to exist.
• Because of Art. 370 Right to Education Act is not applicable there as it is accepted by their assembly.[4]

Conclusion:

Article 370 is the temporary provision inserted with a view to accede the princely state i.e. J&K in India otherwise it was not ready to become a part of India , but it seems that it acquired the permanent status due to which its abrogation is seems impossible. As about 68 years have been passed from commencement of Constitution but is not abrogated .The article 35A was inserted in the wake of Article 370 which makes discrimination between permanent and non permanent residents of Kashmir on the ground of residence. It is always a controversial issue. The person who are included in permanent residents are defined by Constitution of State of Jammu and Kashmir .It also discriminatory towards the women as if they marry to an outsider, then their citizenship will cease to exist .It impliedly means that they have no choice to marry to an outsider. It promotes the feeling of discrimination between the states of India. It also against the ‘unity and integrity’ enshrined in preamble of Indian Constitution as it gives the feelings to J&K as a separate part. The state of J&K should be treated in same way as other states have been treated. Moreover, The Constitution of State of J&K does not provide complete protection to fundamental rights of residents of Kashmir and there is no special provision for minority and also the women have no equal property rights in state which is arbitrary, discriminative and absurd.

[1] Constituent Assembly Debates, Book No. 5, Vol No. X-XII published by Lok Sabha Secretariat.

[2] Art. 370, Constitution of India under part XXI of Constitution deals with ‘Temporary, Transitional and Special Provision’.

[3] Art. 35A, Constitution of India, Inserted by Presidential Order in 1954 under Article 370(1)(d).

[4] Gupta Surbhi &Shashi Bhushan Ojha, Article 370 of the Indian constitution: A study in specific reference to legal dimensions and implications, INTERNATIONAL JOURNAL OF LAW.(Oct.9,2018,3.30 PM), file:///C:/Users/Guest/Downloads/4-3-26-501.pdf