Debate regarding article 370 is not new . Article 370 (360A) is the result of instrument of accession signed between Maharaja Hari Singh and Dominion of India which he was forced to sign due to invasion of Pakistan army into Kashmir territory.
Meanwhile, L K Advani & Omar Abdullah over the abrogation of Article 370 is a case of left-over refrigerated dish being reheated to be served afresh for a new feast-that is election 2014 through which the former aspires to become prime minister while the latter, otherwise battling hard, to retain his chief ministerial post. A marathon discussion spanning 5 months between Nehru and Sheikh Abdullah gave birth to this article. To overcome UN resolution prefix temporary was attached to the article.
The agreed draft article 370, before presenting it in Indian Constituent Assembly for approval, was altered unilaterally by Moulana Azad & Aiyengar without the knowledge & consent of Abdullah & his colleagues representing J&K State in Indian Constituent assembly. With the undemocratic deposition as Prime Minister and arrest of Sheikh Abdullah on August 9,1953 the process of alienation of the people of Kashmir from the Indian mainstream started and along with it began the process of the erosion of Article 370 of the Constitution of India.
Till 1965 Jammu and Kashmir had sadr-e-riyasat for governor and prime minister in place of chief minister This article specifies that except for Defense, Foreign Affairs, Finance and Communications,(matters specified in the instrument of accession) the Indian Parliament needs the State Government’s concurrence for applying all other laws. Thus the state’s residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
Indira Sheikh accord was signed in 1974 mentions that ” The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India ” .
Constitutional provisions with regard to Jammu and Kashmir
- Part IV and IV A i.e. fundamental rights and directive principles are not applicable to State of Jammu and Kashmir.
- Right to property which was repelled in Indian constitution is still valid to state.
- Article 368 which deals with amendment does not apply to J&K. Thus, changes brought about by the amendments cannot be implemented unless the president passes an order, provided it has the state’s acceptance.
- While after the J&K High Court’s judgment of 2002, women marrying non-state subjects retain their property rights, children of women married to non-state subjects are not entitled to inherit property or buy or sell it.
- With regard to the emergency provisions of the Constitution of India, Article 356 and 360 are not applicable to J&K. Only Article 352, pertaining to national emergency is applicable to the state, with certain restrictions. The constitution of the state cannot be suspended under any circumstances. In effect, there are no emergency measures available to the central government in case of a breakdown of ties with the state government, thereby fundamentally reducing its control over the administration of the state.
Debate on Article 370
Various political parties, scholars have different opinion regarding article 370. BJP ,RSS are in favour of abrogation of article whereas leaders of Kashmir as well as chief minister Omar Abdullah are against it.
|Arguments in favour||Arguments against|
|Create psychological barrier||Encourage secessionist to demand plebiscite i.e. internationalization.|
|Encourage secessionist activities||State like Punjab and Assam have faced same issues and hence should not be abrogated.|
|Constant reminder to Muslims that they have to merge with India||Article 370 is bridge.|
|Temporary provision and hence should be dissolved with time.||Temporary was used in order to support UN mandate|
|Still gives an impression that Kashmir is a disputed territoty that needs to be resolved.||People of Kashmir as well as India have accepted this and abrogation will result in huge changes that could create situation of chaos.|
Kashmir is still viewed as disputed territory between India and Pakistan. India is at constant war with Pakistan regarding this. Therefore Mr Narendra Modi politically rally has once again raised debates regarding this article but impact of it is yet to be seen.