What is Article 370?
Article 370 of the Indian Constitution confers special autonomous status to Jammu & Kashmir. It is a ‘temporary provision’ under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special Provisions.” The state has different provisions than all other states, according to the Constitution. For example, till 1965, J&K had a prime minister in place of the chief minister.
History of Article 370
The article provision was drafted by Sheikh Abdullah, since he didn’t desire temporary provisions for Article 370. Sheikh Mohammad Abdullah, the state’s ‘Prime Minister’ and a prominent leader of the Muslims in the Valley, found the inclusion of Article 370 in the ‘Temporary and Transitional Provisions’ of the Constitution’s Part XXI and disagreed. He wanted ‘iron clad guarantees of autonomy’. Since he suspected that the state’s special status might be lost, and began to advocate freedom from India. This resulted in the dismissing his government in 1953, and place him under preventive detention.
After five decades, the Supreme Court of India set aside a judgement of the High Court of Jammu and Kashmir which stated that Jammu and Kashmir had “absolute sovereign power” on account of Article 370, in December 2016. The Supreme Court held that the state of Jammu and Kashmir has “no vestige” of sovereignty outside the Constitution of India and its own Constitution is subordinate to the Indian Constitution. The Court upheld the applicability of SARFAESI Act to Jammu and Kashmir as it was under the Union list of subjects for which the Indian Parliament is empowered to enact laws for the whole of India, including Jammu and Kashmir.
What are the provisions of Article 370?
Indian Parliament needs Jammu & Kashmir government’s nod for applying laws in the state — except defence, foreign affairs, finance, and communications.
The law of citizenship, ownership of property, and fundamental rights of the residents of Jammu & Kashmir is different from the residents living in the rest of India. Under Article 370, citizens from other states cannot buy property in Jammu & Kashmir. Under Article 370, the Centre has no power to declare financial emergency.
Is the provision temporary or permanent ?
A petition filed by a NGO challenged the validity of Article 370 against the Delhi High Court’s April 11, 2017 order. The petition had said that the continuance of the temporary provision of Article 370 even after dissolution of the Constituent Assembly of J&K, and that of J&K Constitution which has never got the assent of the President of India or Parliament or the government of India, “amounts to fraud on the basic structure of our Constitution”. Besides, it argued that Article 370 was only a ‘temporary provision’ to help bring normalcy in Jammu and Kashmir and strengthen democracy in that State. The Constitution makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution. The plea said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Indian Constitution.
Supreme Court said that in its earlier verdict of 2017 in the SARFESI case, it has been already held that Article 370 was “not a temporary provision”. During the hearing, the central government said that the matter be heard after some time as similar matters are pending before the court and are to be listed shortly. The Jammu and Kashmir government clarified that other matters which are pending before the apex court relates to Article 35 A of the Constitution and not Article 370 as submitted by the ASG. It also said that that matter cannot be heard along with the present case, which only deals with Article 370.
Rise of political difference
Ever since, the political manifesto of Bharatiya Janata Party manifesto for the 2014 general election was released, the contentious issue, the party pledged to integrate the state of Jammu and Kashmir into the Union of India. When the party won the national election, BJP’s parent organisation, the Rashtriya Swayamsevak Sangh (RSS), called for the abrogation of Article 370. But due to some reasons, BJP didn’t take up the issue. While the PDP and BJP formed government in the Jammu and Kashmir, there was a sharp difference between them on the issue of Article 370. While, the Bharatiya Janata Party has been maintaining its stand that Article 370 should be scrapped.
There has been a concerted and rigorous effort on both sides of the argument which surrounds Article 370. While one section of the people believes that Article 370 is the only constitutional link between the state and the rest of India, there are many who insist that Article 370 has, in fact, is a stumbling block which continues to prevent from becoming an integral part of India. Though legal and constitution factors are still burning, ever since the creation of India, the true sufferers are the people of Kashmir.
ON REMOVAL OF ARTICLE 370
The decision to abrogate Article 370 has perhaps generated more emotions than any other event in the country in the recent past. From celebrations to anger, from euphoria to despondency, from pride to humiliation, it has seen a wide spectrum of emotions reflected through millions of conversations on social media.
Like everyone else, I too had an emotional reaction when the news popped up on the notification bar of my phone. Perhaps a little too emotional because this impacts an ordinary Kashmiri more than anyone else. It has taken a while to let it sink in and to objectively assess it.
At a personal level, the helplessness of not being able to reach out to our families back home has been emotionally shattering and hard to come to terms with. The total clampdown on all means of communication has left families disconnected. It is inconsiderate and inhumane at multiple levels. Most of us have elderly parents or small children at home. It is painful to think just how they must be coping inside their besieged homes. What if there is a medical emergency? My grandmother is quite unwell, I wonder if I will get to see her again. The desperation to reach our families is growing by the hour. And so is the hopelessness.
The abrupt manner in which Article 370 was removed also begs a few questions. Could the decision have been implemented in a better way? Perhaps the government could have approached it by building a consensus for the removal of the article? A buy-in from the common man, especially those living in the state, could have perhaps been secured through a rational and educative campaign about the benefits over a period of time? Why not take a stepwise approach instead of rushing through it?
The biggest argument from the government has been that the decision will bring development and peace in the state. Having suffered three decades of violence, nobody else has a greater vested interest in peace and development than an average Kashmiri like me. However, how this will happen has been left vague, with only mere assertions being made about the move bringing in corporate investment. A better delineation of the plans, if there are any, would have certainly helped create more optimistic reactions. At this stage, it is still unclear if any business house wants to invest in an uncertain and precarious environment. And that leads us into questioning whether economic development and employment generation are the solution? Will these lead to peace?
A lot of emphasis is also being given to how the removal of Article 370 will help integrate the state (now split into two Union territories) with the rest of the country. Sadly, the integration seems to be only a legal one. It is akin to acquiring a property. Given the sentimental attachment that most people in the Valley have with the “special status”, the decision to remove it has left a negative impact on the emotional integration of people. Add to this the denigrating remarks and juvenile jokes about marrying Kashmiri girls and buying property on Dal lake — these have further driven a bigger wedge between people.
On the positive side, if the decision helps in resettling the uprooted Kashmiri Pandits back home, it will be a big win. Most of these Pandits want to go back to their homes, especially those still living in abject conditions in refugee camps in Jammu and elsewhere. Let us hope this happens. Ending the discrimination against women deprived of property rights after marrying outside the Valley is also a welcome step. This could and should have been addressed earlier. The decision to divide the state has been welcomed by Ladakh. They have been demanding UT status for a while. However, the decision hasn’t gone down well in Kargil, a predominantly Muslim district, where people have come out on the streets to protest. Will this exacerbate tensions in a region that has managed to stay peaceful so far, despite the conflict in the Valley next door?
It is also critical that proper provisions and restrictions are put in place for buying of property to protect the fragile ecology of the region. Lastly, while much has already been written on the politics of it all, I still have a few questions in mind: Why are the mainstream Kashmiri politicians being projected as villains in this entire episode? So far, it is the mainstream political parties and their leadership that have been the bridge between alienated Kashmiris and mainland India. With the removal of Article 370, who will provide that bridge now? Or has this bridged the divide between separatists and the mainstream in the Valley? Only time will tell how this decision will impact the future. Hope we have some answers once things settle down. Right now, all we can do is pray for peace.