Article 370 of the Indian Constitution

ELEMENTS OF LAW PROJECT

ARTICLE 370 OF INDIAN CONSTITUTION

Article 370 which lie under the Part XXI of Indian Constitution showcases about the special rights and status given to Jammu & Kashmir State, stating it will enjoy different set of laws then the other states. This article looks after the Temporary and Transitional changes along with the special provisions for the benefits of state. It came into act in 1950, and the required changes are made by the president when necessary. Indian parliament can make changes in laws only related to defense, foreign affairs, finance and communication without permissions of state government. At the time of implementation it was set to be temporary, with a view of withdrawing at a right time, without that right time till now. Provisions of article 238 may not be applicable in Jammu & Kashmir. The matters mentioned in the Concurrent List as along with Union List are announced by the President with decision with the State about the issues related to the State. The President by passing a notice can make amendments in the application of the Article in the state. These are few important provisions mentioned in Article 370

• Jammu and Kashmir government would have 6 year term.
• They have two different flags for state and nation.
• People of Jammu & Kashmir enjoys dual citizenship, i.e. of the state as well as the country, except a woman marries a person resident of other state, while it remains intact when she marries a Pakistani male.
• Indian Parliament cannot increase of decrease the border of state.
• Supreme Court jurisdiction does not apply in Jammu & Kashmir.
• Parliament cannot declare any financial emergency in the state except in situation of war or any external sufferings.
• No one residing outside the state can purchase the land.
• The citizens of the state falls in Constitute of Jammu & Kashmir rather than the Constitution of India
• Insulting the nation's symbols like Flag or national anthem is not considered to be the crime in the state.
• CBI is not allowed to work in the state.

History of Article 370

On February 20, 1947 Britishers declared of giving freedom to India by dividing the 562 princely states in majority of Hindus and Muslims. With 14 states under Pakistan while rest 548 joining India. To unite these states "Instrument of Accession" was passed, where only the defense, external force and communication will be under the central government. So the result was by the day of independence all the states accepted the proposal except Hyderabad, Junagarh and Jammu & Kashmir. Talking of Jammu & Kashmir, Hindu maharaja "Hari Singh" ruled the state with majority Muslim residents. He wanted Jammu & Kashmir to be independent state. During that course, Pakistan attacked the state. So with left with no options he decided to join India and he signed the "Instrument of Accession" on 26th October 1947. During the period, Sheikh Abdullah leader of Jammu & Kashmir under the rule of Yuvraj Karan Singh decided to make a new constitution stating its relation with country India. Yuvraj made use of clause 7 of "Instrument of Accession" under the influence of state interim governor Sheikh Abdullah, stating state has right to not follow Indian Constitution fully and make their own constitution. They decided to follow the constitution of year 1939. Jawaharlal Nehru did not force Yuvraj to follow the other states so as a result Article 370 came into existence. With lots of arguments with Dr. Ambedkar and Sardar Vallabhai Patel, at last Constituent Assembly of Jammu & Kashmir was formed on 15th February 1954. There is a mention in the constitution that "The state is and shall be the part of Union of India". Article 371 mentioning the "Special Provisions" have been extended to the state on 27th September 1963. Later Article 356 and 357 were also added.

Debates in Parliament on article 370

1. Before the new Government (before 2014) There have been debates and arguments in the parliament over last 60 years is the parliament on a sensitive issue of Article 370.Temporary provision to Jammu and Kashmir has turned to be immortal due to genuine mistakes of M.P.Jain ,a constitutional expert of saying the State has more measure of autonomy and power than by any other States. According to our Constitutional expert "Rajiv Dhavan", we cannot remove Article 370 or else it would turn into jeopardy. Inspite of these debates and changes over the years we have never been able to remove the provision on Jammu & Kashmir.
2. After the new Government (After 2014) Our new Prime Minister wishes to eliminate the special power given to Jammu & Kashmir , but the Chief minister of Jammu & Kashmir says "There would be Article 370 existing or Jammu & Kashmir will not be part of India". By having 336 seats from 520 of BJP in Lok Sabha, for passing the law they need 362 as a majority, which they may get from the regional government but it would be very difficult job to turn a desire into reality. Mr. Mir Saifullah, who leads the department of law, justice and Parliamentary Affairs gave a proposal that Law Commission of Jammu and Kashmir will be jurisdiction to review those laws, which have been proposed by the State Legislature and that of Central laws, which have been applicable to Jammu and Kashmir under the name of Article 370.

Relevance in the present Scenario

1. Reaction of Indian citizen over Article 370.
   Indian people feel that there have been partial and higher rights given to Jammu and Kashmir. The different parties of India wishes to eradicate the provision so every citizen of India gets a equal right to live with same level of laws applicable throughout the country. 9 months ago when our Prime Minister made a point in changes in Article 370 there had been a very positive roar from the whole country except the state who are very intent to keep the laws applicable in Jammu & Kashmir. The chief Minister of the State is very abundant to be having their own constitution. The people of India with a aim of equal right would keep shouting but the State will always get a higher rights just because that is Jammu and Kashmir and we are fellow Indians.
2. Reaction of People of Jammu & Kashmir over Article 370
   The people of Jammu and Ladakh are facing high discrimination under the Kashmiri leadership with living a life of second class citizen of the state. The political leader has been very dominated under the Act of Article 370 so they rebutted for having a different state of Jammu & Kashmir. It has been said that there are around 2,50,000 refugee living which is somewhere a high risk for the people of state. Some Kashmiri people have been caught in status of permanent residents, just like the "West Pakistani Refugee", though which the door might open for people who have come to Kashmir from various states of India which would bring change in demographic structure of India and reduce the power of Kashmiris.

Changes required in Article 370

Article 371 empowers people was said by BJP patriarch Mr. LK Advani during the talk on Jammu and Kashmir provisions on Article 370. During the Central Elections our Prime Minister took a point on removing the Article but with so success in it, during the state elections of Jammu & Kashmir they portrayed to do betterment for the state first later the other things. "Ek desh mein do vidhan, do nishan, do pradhan, nahin chalega," was a very much used slogan by the parliament during the earlier movements in 1952. But only a slogan cannot work the understanding of the state with central is very much necessary. With looking at the scenario it could be seen that it is nearly impossible for the center to make any changes in Article 370 except the approval and acceptance by the state. Article 370 imposes borders on the central power on Jammu & Kashmir. Special permissions are required to pass an ordinary legislation in the state. It stops the development of the state while other state gets a better chance to develop. The people of state believe that central would dominate them and their right would get lost. With a hope to grow he world into a family, we should first try to make our country into a family. It has caused difficulty for Kashmiri Brahmin to live in that state alive, due to which they prefer to migrate to other state. If the Article 370 is not lifted, it should be at least modified to make the central government to make the changes at necessary period, so along with other states Jammu & Kashmir also gets an equal right to develop in various sectors. The other change which is needed in the Article 370 is to let the people of state live their life with freedom in the country of biggest democracy in the world. The day this article was imposed it was laid with a view to remove it at appropriate time but the state has not allowed to do so. Thus the article 370 has turned to be immortal.

Change in Terrorism in Jammu & Kashmir

It has been seen that terrorism has been decreased in Jammu & Kashmir is last few years. The decrease of terrorism cannot be directly linked with Article 370 but yet it is linked with it. The people of Jammu Kashmir in their desire to protect the state not only from the Indian constitution but from all the External forces have made them protect the state. The decrease in terrorism has somewhere also helped the state to develop by letting them invest in other industry other then the defence. And as there are restrictions in entering the state the people from other countries cannot easily come in, so the state has seen decrease in terrorism.

The success of Article 370

According to the views of People of India over the Article 370, they feel that it should be abolished in the country due to various reasons. From all of them, few are the Article does not give opportunity to the state due to which it is not able to develop. It should be removed as it causes brutal genocide to the Kashmiri Pundits. Article 370 is separating Jammu & Kashmir from India. It is not only harming India but also doing a serious damage to Kashmir as well. When we talk about united & secular India, There must be single constitution for all and should respect one flag only. This Article should be surely removed as Indian Parliament cannot play their role here so they undermine the authority of Indian Constitution. Most central laws like Right to Information (RTI), Right to Education (RTE), while the provisions which are related to fiscal laws like Finance Act 1994 (related to service tax), CAG audit, wealth tax and many other are not applicable in Jammu & Kashmir. While on the other side of coin this Article 370 should not be removed because it is a very sensitive topic which may hurt the sentiments of the people of Jammu &Kashmir. The main important point is that if the Article 370 would be removed Kashmir won't be part of India, which would be great loss to India where they would lose their jewel of the ring and it would harm Kashmir as well as it would be difficult to protect the state from Pakistan as well as China who are very keen to take over Kashmir. According to me as a citizen of India I feel that Article 370 should be abolished not only for the country to get equal right, but for Jammu & Kashmir as well so they grow and take chance of new opportunities to grow.

Bibliography

https://en.wikipedia.org/wiki/Article_370
https://indiatoday.intoday.in/story/article-370-issue-omar-abdullah-jammu-and-kashmir-jawaharlal-nehru/1/364053.html https://www.thehindu.com/opinion/lead/understanding-article-370/article5426473.ece
https://kashmirherald.com/featuredarticle/article370.html
https://indiaopines.com/article-370-indian-constitution/
https://www.indiandefencereview.com/news/article-370-the-untold-story/
https://www.greaterkashmir.com/news/2015/Jan/14/separatists-mainstream-oppose-concessions-47.asp
https://www.business-standard.com/article/opinion/letters-why-article-370-must-go-114060501412_1.html https://www.kashmirherald.com/featuredarticle/NCRWCArticle370.html
https://www.firstpost.com/politics/repealing-article-370-why-jks-special-status-is-a-political-tinderbox-1546511.html Thank You

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