In recent days i had a brief discussion rather argument with two of my colleagues Megha and Anshuman about the relevance of article 370 in the indian constitution and the proposal of Modi Government to abrogate it. Here's a look at what this article is all about.
Maharaja Hari Singh of Kashmir signed the accession papers on October
26, 1947 under which the state acceded to India. The accession of Jammu
and Kashmir with India was carried out following the common pattern as
drafted for other states acceding to India or Pakistan. Nehru the
Great took it upon himself to force the Maharaja for handing over power
to Sheikh Abdullah. On the insistence of the latter it was decided that
the State Assembly will take the final decision on the accession. We do
not know whether there was a special mutually obligatory relationship
between Nehru and Sk. Abdullah, (why did Nehru declare himslef a
Muslim in culture?) or such a relationship was forged on prompting by
the British and we can only speculate about how Nehru came to this
course of action and why people like Sardar were unable to stop him –
there seemed to be no such fatal vacillation and weakness in the case of
Hyderabad. To deal with the situation arising until the Assembly took
the final decision Article 370 was incorporated in the Constitution as a
temporary measure. But even after ratification by the State Assembly of
Kashmir’s accession to India, the Article was not abrogated.
The Parliament has the power to legislate laws for rest of the states
in the country but Article 370 prevents the Government of India from
enforcing any law connected with Jammu and Kashmir without the approval
or concurrence of the State Government. Only defence, external affairs
and communications fall in the central list. Thus the law prohibiting
misuse of religious places could not be extended to Jammu and Kashmir
and so Kashmir is the only region in India which can claim to be legally
not secular. The Uttar Pradesh Government was dismissed under Article
356 of the constitution over non-prevention of the demolition of the
so-called Babari Masjid, but Article 356 was never invoked in Kashmir in
spite of well known and very old pre-Islamic temples and shrines being
openly destroyed by sections of Kashmiri Muslims.The
President has no right to suspend the Constitution in the State and
only the National emergency act under Article 352 of the Constitution
can be imposed on Jammu and Kashmir to a limited extent and the
financial emergency under Article 360 cannot be enforced in Jammu and
Kashmir.
Under part four of the Constituion of India there is provision and
scope for one constitutional practice, one administrative structure and
one economic pattern. But under Article 370 Jammu and Kashmir has its
right under its own constition to choose its own policies irrespective
of the rest of India. Kashmir has separate flag from India and two flags
have to be raised on the Government buildings in the state. For
hoisting freely the National flag, permission has to be obtained from
the State because it is necessary to hoist the national flag with the
state flag. By Article 370, citizens of Jammu and Kashmir are citizens
of India but the citizens of the rest of India cannot be citizens of
Jammu and Kashmir and do not have the right to have property or the
right to vote in Jammu and Kashmir. If a girl belonging to Jammu and
Kashmir marries a boy who is not a state subject, she loses all her
rights in the state, while the same does not extend to a Kashmiri boy.
The wealth tax cannot be imposed in the state. The Urban Land Act, 1976,
which is in force in the entire country is not applicable to Jammu and
Kashmir.
Muslims from rest of India are given citizenship of Jammu and Kashmir
but Hindus displaced during the partition, have been consistently
refused citizenship according to some sources. The state Government did
not accept the Anti-defection law adopted in the country and instead
made several amendments. Here the decision on defection is not taken by
the speaker of the Assembly but by the leader of the connected political
party. The Governor has no right to vote in the Assembly if he/she is
not a citizen of the state. The recommendations of the Wazir Commission
for political reforms in Kashmir have been refused with the help of
Article 370. Burning of the national flag is not a cognizable offence in
Kashmir because the obligation enshrined in the Constitution to show
respect to the tricolour, the national anthem and the national symbol is
not valid in Kashmir. Under Article 370 the Indian Parliament cannot
increase or reduce the borders of the state. The Union Government
implements international agreements and accords under Article 253 of the
Constitution but this Articel is superseded by Article 370 Jammu and
Kashmir. One of the architects of Constitution of India, Dr.Ambedkar
had apparently cautioned Nehru that Article 370 can make full
integration of the state with India difficult. But it is unlikely that
Dr. Ambedkar’s warning will be heeded even now by his ideological and
political descendants who are now dreaming of becoming a Prime
Ministerial party using the very same complete appeasement and surrender
to Islamic theological agenda.
On April 7, 1958 the Plebiscite Front of Sheikh Abdullah
adopted a resolution specifically citing Article 370. and stated that :
“Jammu and Kashmir state has not yet acceded to any of the two
dominions, India and Pakistan. Therefore, it will not be right to call
Pakistani invasion on Jammu and Kashmir as an attack on India.” Using
Article 370 Kashmiri Muslim leaders have opposed any family planning and
welfare schemes formulated by the Government of India, and the
programme was implemented only in the Hindu majority Jammu. The former
Chief Minister, G.M. Shah, had said that the aim of the Government
family planning programme was to convert the Muslim majority into a
minority. The former External Affairs Minister, M.C. Chagla,
had told the United Nations that the Article was a temporary measure.
The two former Chief Ministers of Jammu and Kashmir, Bakshi Ghulam
Mohammad and G.M. Sadiq, too wanted this Article to be repealed.
Articles 3 and 5 of the State Constitution of the Jammu and Kashmir
states that it will remain an “inseparable” part of India and the
Parliament should immediately repeal article 370. For those
Kashmiris who have declared themselves to be Pakistanis should be
asked to apply for Pakistani citizenship, and if their application
fails should be declared stateless persons and no longer citizens of
India, and therefore no-longer citizens of any part of the dominions of
the Republic of India.
Having said all this i would stick my neck out and say its very difficult to repeal this article as the sentiments of the local people is against it and there would be a possibility of revolt and seperation with the support of vested interest groups from Pakistan. But what india needs is the beautiful land and patriots of J&K and not the treasonist's (the so called citizens of J&K). So repealing article 370 will be strong step forward in the integration and sovereignity of the country, though in present situation it is unlikely to happen.
HARSHIT H
STUDENT
HINDU COLLEGE
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