Published : Monday, 13 April, 2015 11:35 AM
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Issues over Article 370
Article 370 of the constitution of India is one of the most debated and controversial provisions of the constitution. Various stakeholders of this provision don’t argue about Article 370 over its pros and cons but over emotions. Forget about repeal or strengthening of Article 370, even a demand for discussion on Article 370 is tantamount to stirring a hornet’s nest.
Under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special provisions, Article 370 accords special status to the state of Jammu and Kashmir (J&K). Under Article 370, all the provisions of the Constitution which are applicable to other states are not applicable to J&K until and unless such provision is separately passed by the state legislative assembly.
According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government's concurrence for applying all other laws. 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.
Arguments for Article 370
The most vehement support for Article 370 obviously comes from the state of J&K itself. With insurgency consolidating its roots and, anti-India sentiments also not a rare phenomenon in the valley, any threat to the Article 370 would definitely pose a law and order crisis in the valley. In fact, former Chief Minister of J&K Omar Abdullah tweeted in March 2015, “Mark my words & save this tweet - long after ModiGovt is a distant memory either J&K won't be part of India or Art 370 will still exist."
However, even on ruling out the people’s protest in J&K and considering it only on legal basis, removal of Article 370 would not be an easy task. Currently, apart from Article 370, the only other legal proof which sanctions the accession of J&K to India is the Instrument of Accession signed between Government of India and the then ruler of J&K Maharaja Hari Singh. Problem with the Instrument of Accession is the inclusion of provision of plebiscite which has the potential to weaken India’s case in Kashmir issue. So until there is Article 370, there is no need for a plebiscite.
When Kashmir issue was referred to the United Nations (UN), the UN asked the Pakistan to evacuate the Pakistan Occupied Kashmir (POK) and a plebiscite was recommended in entire Kashmir. However, neither Pakistan evacuated nor India conducted a plebiscite.
Arguments against Article 370
In addition to the ruling BhartiyaJanta Party (BJP), almost all right wing organizations want the scrapping of Article 370 arguing that the article has become the single most important road block in making J&K an integral part of India. Any legislation passed by the Parliament is not applicable to the state till it is passed by the state assembly. For instance, acts like Right To Information (RTI), Right to Education (RTE), schemes like MNREGA do not have automatic extension to Jammu and Kashmir. Non-residents of the state cannot buy a property in the state. All these factors have widened the gap between the Indian Union and J&K state.
Many scholars argue instead of benefitting the state, Article 370 has only caused the impoverishment of the state and is also the impediment in the progress of the state. Though Article 370 was considered as merely a ‘Temporary, Transitional and Special’ provision, as the time passes, removal of Article 370 would become more difficult just like the provision of reservation in jobs which was also a temporary provision only for 10 years at the commencement of the constitution.
And last but not the least; we argue that in the absence of Article 370, only Instrument of Accession will be a proof of J&K being part of India. But our western neighbour Pakistan neither has any Instrument of Accession nor Article 370, but still it lays claim over J&K. Therefore, in any situation, India case would always be stronger than Pakistan.
The Article 370 is an internal arrangement which says that how relations between India and Jammu and Kashmir would be governed. Also in international relations, the most important way to substantiate your claim over a territory is to accumulate power. Our neighbour China had also captured some territory in J&K without any Instrument of Accession or any such article in constitution.
Therefore in most likelihood, even if Article 370 is deleted, it would only effect the internal relations between India and J&K and would not substantiate the claim of any foreign power over the state. However, the most common solution for any controversial problem in India is the status quo. So in this case also, government would prefer its time tested medicine of status quo in the foreseeable future.