Debate On Article 370

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As usual, every political party in this election campaign has used or will be using article 370 as one of the burning issue. At the Bharatiya Janata Party’s recent Lalkar rally in Jammu, its prime ministerial candidate, Narendra Modi, called for a debate on Article 370. But there are various myth’s and facts surrounding this topic.
Article 370 of the Indian Constitution is a 'temporary provision' which grants special autonomous status to Jammu and Kashmir. Under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special provisions", the state of Jammu and Kashmir has been accorded special status under Article 370.
All the provisions of the Constitution which are applicable to other states are not applicable to J&K.
According to this Article, except for defence, foreign affairs, finance and communications, the 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 can not purchase land or property in Jammu & Kashmir.
Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
Issue No. 1 Why Article 370 was incorporated ?
J&K unlike other princely states was not yet ripe for integration.
India was still at war with Pakistan & even after ceasefire, conditions in J&K were unusual and abnormal.
Much of the area of J&K was in the hands of rebels and enemies at that time.
United Nations involvement in the question of J&K integration brought this issue to the international level where quick decisions were needed to bring this part in the Indian Union.
Critics & arguments for Issue No.1
Provisions of article 370 were temporary in nature. Then why it is still continuing ?
One important thing to note here is that constitution makers had made this provision & had intended that it would end eventually only when there will be real peace in this area which is still a distant dream. Thanks to the terrorism & our dearest “friend” Pakistan.
Issue No. 2 Did Sardar Vallabhbhai Patel oppose Article 370 ?
Mr. Patel was realistic & Mr. Nehru was idealistic.
Patel had demonstrated his supreme skills in integrating princely states with the Indian union. He thought the same of J&K. He wanted to make J&K a complete & integral part of India & not withstand to any threats.
But, ground reality was very different & different stake holders had different views about J&K integration. It was increasingly getting difficult to make everyone ready for a common solution.
Mr. Patel though was aware of the implications this article would bring still accepted it & was a party to it as the real motive behind it of him was the merger of J&K with Indian Union.
At the end it was Mr. Patel himself because of whom this article was included in the constitution.
Issue No. 3 Is article 370 still intact in its original form ?
It is a myth to consider that article 370 is still in its original form the way it was formulated.
Many Presidential Orders has substantially eroded Article 370.
Though none of the central laws are applicable to J&K, but still it is evident that many laws of the Union have been made to be accepted by J&K by Presidential Order.
The autonomy enjoyed by J&K is not real today. Each institution of the Union has jurisdiction over J&K.
Areas in which it enjoys autonomy -> permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature.
J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.
Issue No. 4 Can Article 370 be revoked unilaterally ?
By using Clause 3 of Article 370 President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to.
In short, only J&K Assembly can give permission for its revocation.
But at the same time, Parliament can amend this provision mentioned in article 370.
But this also subject to judicial review, which may say that this clause & article denotes the “special” relationship of J&K with Union & hence can’t be amended.
Issue No. 5 Is Article 370 a source of gender bias in disqualifying women from the State of property rights ?
Firstly, this article is gender neutral.
But the Permanent Residents in the State Constitution which is based on Maharaja’s rule was thought to be discriminatory. It said that a women marrying outside the state will lose the right as a state subject & also lose the property rights.
But in a landmark judgement,in October 2002, the full bench of J&K High Court, held that the daughter of a permanent resident of the State will not lose her permanent resident status on marrying a person who is not a permanent resident, and will enjoy all rights, including property rights.
Issue No. 6 Has Article 370 strengthened separatist tendencies in J&K ?
Article 370 is synonymous with decentralisation and devolution of power, phrases that have been on the charter of virtually every political party in India.
It was created for those people who felt deeply vulnerable about their identity and insecure about the future.
Separatism grows when people feel disconnected from the structures of power and the process of policy formulation; in contrast, devolution ensures popular participation in the running of the polity.
It can be reasonably argued that it is the erosion of Article 370 and not its creation which has aggravated separatist tendencies in the State.
Those people should not talk about article 370 who know nothing about it.
I am ready for a public debate with BJP & Mr. Modi on article 370.
There is no gender biasness in our state.
Some big leader had come to J&K and said that Gujjar’s in J&K are very much exploited. On the contrary, Gujjar’s status in J&K has been raised from a Scheduled Tribe to a community.
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