Article 1 of the Indian Constitution binds the State of J&K and its territory to the Indian Union, simultaneously, Article 370 grants it a special status and hence, all provisions of the Constitution of India are not applicable to the State of J&K. There are 11 other states of India, mainly, NE states enjoy a special status. However, the rights and privileges given to the state of J&K are unparalleled. Reasons for Providing Special Status 0n 15 Aug 1947, India and Pakistan were granted independence from the British rule to exist as independent nations. The State of J&K had opted to neither join India or Pakistan, but to exist as an independent entity. On 20 October 1947, Azad Kashmir Forces, supported by Pakistan army attacked the frontiers of the state and marched towards Srinagar garnering more local support along the way, as the state, at that time had 75% Muslim population. Maharaja Hari Singh, the then ruler of J&K, approached India for assistance. India dispatched its troops to halt the advance of the Azad Kashmir Forces, with the condition that the state of J&K would accede to India. Hence, an ‘Instrument of Accession’ was signed between the Indian PM, Pandit JL Nehru and Maharaja Hari Singh on 26 October 1947. Sheikh Abdullah was appointed as the head of the emergency administration and he endorsed the accession to India as an ad hoc arrangement, which would ultimately be decided by taking the wish of the people of J&K into consideration through holding of a plebiscite. The troops of the Azad Kashmir and Pakistani Forces were repelled back to the line of the present Line of Control (LOC). Hence, the area of J&K which is still in the possession of Pakistan is called Pakistan Occupied Kashmir (POK). Similarly, the area of J&K held with Indian is called by Pakistan as the Indian Occupied Kashmir. Pakistan disputed the legality of Instrument of Accession, which lead to the first Indo-Pak conflict in 1948. A ceasefire was proclaimed on 01 January 1949 and India took the issue to the UN Security Council for resolution. The UN Resolution of 05 January 1949 stated that the decision regarding accession to India or Pakistan was to be decided through a fair and impartial plebiscite, conducted after the area was demilitarised. Both, India and Pakistan had their own interpretation of this Truce Agreement, like disbanding the Azad Kashmir Force, etc and hence, plebiscite was never held. On 17 October 1949, Indian Constituent Assembly adopted Article 370 of the Constitution ensuring special status and internal autonomy to Jammu and Kashmir. It clearly states that the provisions of this Article with respect to the State of J&K are only ‘temporary’ and not permanent. The Article became operative on 17 November 1952. Government of India, while adopting Article 370, made a commitment that the people of the state, through their own Constituent Assembly, would determine the internal constitution and the nature and extent of the jurisdiction of the India Union over the state, and until the decision of the Constituent Assembly of the State, the Constitution of India could only provide an interim arrangement regarding the state i.e. October 1949 to November 1952. The political reason for giving this special status to J&K appears to be, that firstly, India accepted that it was a disputed territory and as per the UN mandate a fair and impartial plebiscite was required to be held in the state. Secondly, by providing the people of the state with special privileges, it would serve to win their ‘hearts and minds’. Salient Aspects of Article 370 Under the provisions of this Article, as was agreed upon in the Instrument of Accession, Indian jurisdiction in the State was only limited to the areas of Defence, Foreign Affairs, Communications and ancillary matters. Making of laws on other subjects mentioned in the Union List and the Concurrent List, as specified by the President, can only happen with the concurrence of the state government. The President of India can declare Article 370 non operative, or Parliament can amend and modify it only on the recommendations of the Constituent Assembly of the state. In 1952, Government of India and the State of J&K entered into an agreement at Delhi, often referred to as the Delhi Agreement regarding their future relationship. Further, in 1954 the Constituent Assembly of J&K approved the state’s accession to India and the President issued a Constitutional Order OF 1954(Applicable only to the State of J&K). This order superseded the Constitutional Order of 1950, which had some different provisions with respect to relationship of the State of J&K with the Union of India, like; the Governor and Chief Minister were called “Sadar-e- Riyasat and “Wazir-e-Azam” respectively, etc. This is the Order which is applicable as on date, with amendments and modifications from time to time and regulates the constitutional position of the state and its relationship with the Union. Noteworthy aspects of this Order are: The name, area or boundary of the state cannot be changed by the Union without the consent of its State Legislature. The State of J&K has its own Constitution and is administered accordingly. Therefore, technically, the definition of ‘State’ under the Part VI of the Constitution of India does not apply to J&K. Preventive detention laws made by the Parliament, like TADA/ POTA are not applicable in the State of J&K and the state Legislature can make its own laws on preventive detention. However, Indian Parliament holds the jurisdiction of making laws on important matters concerning prevention of terrorist acts, questioning or disrupting the sovereignty and territorial integrity of India and causing insult to National Flag/Anthem and the Constitution of India. Special rights are guaranteed to the permanent residents of the state regarding public employment, acquisition of immovable property, settlement and government scholarships. No outsider can buy property in J&K. Also, a girl getting married to a boy from outside the State of J&K used to lose her right to ancestral property. However, this clause has been recently revoked by J&K High Court. Directive Principles of State Policy and Fundamental Duties, as enunciated in Part IV and IVA of Constitution of India, respectively, are not applicable to the state as it has its own Constitution ( refer Point ‘b’ above). National /Financial Emergency cannot be declared in the state by the President of India on the grounds of internal disturbance without the concurrence of state government. President of India cannot suspend the Constitution of the state on grounds of failure to comply with the directions given by him. President’s Rule can be applied in the state in case of breakdown of constitutional machinery under the provisions of State Constitution and not Indian Constitution. President’s Rule was imposed in the state for the first time in 1986. International treaty or agreement with any other nation can only be made with the consent of state legislature. A Presidential Order is required to be extended to the State of J&K, so that any Constitutional amendment made by the Constitution of India becomes applicable in J&K. The Schedules of the Constitution of India dealing with administration of tribal areas and scheduled tribes are not applicable in J&K. Hence, the underprivileged in the State of J&K are not getting benefitted by many GOI schemes for the poor. The special leave jurisdiction of Supreme Court (provision to appeal to Supreme Court against the High Court verdict), before 1954 was not possible. The same is now applicable in J&K. Jurisdiction of Election Commissioner and Comptroller and auditor general are also applicable in J&K. All migrants to Pakistan before 1954 are given a choice of citizenship to India and could resettle in the State of J&K. Resolution for Greater Autonomy On 26 June 2000, J&K Legislative Assembly adopted by voice vote, the report of Sate Autonomy Committee, recommending greater autonomy. The Assembly sought the following: Word ‘temporary’ in the provision of Article be substituted with ’special’. Provisions of Article 356 dealing with imposition of President’s Rule be amended. Election Commissioner to have no role in state elections. J&K Assembly to have the final say on matters of external and internal aggression. Governor and CM to be called by their erstwhile names of Sadar-e- Riyasat and Wazir-e-Alam. Separate charter of Fundamental Rights for J&K. Special provisions for scheduled tribes and backward classes. Centre to lose adjudication rights relating to inter-state rivers. No jurisdiction of Supreme Court in cases of appeals against J&K High Court judgements. Parliament not to be empowered to amend the Constitution and procedures with respect to J&K. On 14 July 2000, the Union Cabinet rejected the above demands finding them unacceptable, however, committed itself to a greater devolution of powers to all states. Advantages to the People of J&K if Article 370 is Abrogated The benefits of the Centre Government projects and schemes, especially for the underprivileged people of the state can be availed. Improvement of infrastructure and generation of employment through schemes like MNEREGA, food for work, etc and better Public Distribution System (PDS) through targeted schemes like direct cash transfer, etc. Meeting the aspirations of deprived communities and those belonging to Scheduled castes/tribes, etc. Development of state through investments by outsiders, which would also lead to generation of quality jobs. Growth and prosperity will automatically lead to reduction in militancy related incidents and hence, motivate foreign investments also. Exploration and exploitation of abundant natural resources available in J&K and promotion of tourism will greatly enhance its economic self reliance. Why Article 370 Should Not be Made Non-Operative Firstly, It goes against the spirit of the commitment of GOI that it made to the State of J&K while signing the Instrument of Accession that, “the people of the State, through their own Constituent Assembly, would determine the internal constitution and the nature and extent of the jurisdiction of the India Union over the state”. Hence, revoking Article 370 will lead to major unrest and polarisation. India’s image of being one of the world’s most exemplary democracies will take a beating, as India would project an image of an aggressor in the eyes of the world community, as it has failed to abide by the UN Resolution of 05 January 1949 which stated that the decision regarding accession to India or Pakistan was to be decided through a fair and impartial plebiscite. Parallels will be drawn to the Israeli forceful occupation of Palestinian territories. It would give an opportunity to countries like Pakistan to motivate separatists and renew Jihad from their soil with greater vigour. This needs to be seen in the light of Pakistan’s ongoing political crisis, and that it would try to divert the minds of Pakistani people by India centric activities, the exodus of US troops from Afghanistan this year and the latest Al Qaida threat of opening its Cells in India. A polarised atmosphere in India will aptly meet their nefarious ends. Making Article 370 non-operative will only cause more unrest and law and order problems and situation will further deteriorate. Hence, no investor will be keen to invest in a turbulent environment. On the other hand, if the Article is amended, as has been done on many previously occasions, to make it more people friendly in terms of the extending the reach of populist schemes of the Government of India to J&K, it would produce conducive atmosphere for growth and de-escalate violence. Recommendations being discussed by some of allotting land to ex servicemen and civilian volunteers in J&K, will only result in a culture of ‘wild west’ and create more law and order problems, rather than solving the issue. Finally, it is in India’s interest to maintain a peaceful buffer, against Pakistan and China in the form of J&K. The presence of Article 370 is not seriously impeding India in keeping a reasonable control over this troubled spot. Especially, now, after the balm applied by the Armed Forces by way of providing a commendable assistance during the floods in the state, it could mean a fresh start. The Government of India needs to step up its support for reconstruction and rehabilitation post flood situation and the security forces once viewed as despicable are being seen as the saviours, need to cash on and consolidate their new image.
Posted on: Mon, 15 Sep 2014 09:21:17 +0000
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