Abrogation of Old Testament: Article 370


by Anuradha Basu


Article 370 of the Indian constitution is a law that grants a special autonomous status to Jammu and Kashmir. “The article, which is drafted in Part XXI of the Constitution, relates to Temporary, Transitional and Special Provisions”. Seventy years of independence with diverse cultures, ethics and customs our country has lived with controversies and confusions on the special status enjoyed by Jammu & Kashmir. Though efforts have been made on several occasions to unite the country through a unified constitution and rules, resistance from local communities have always prevented the same. As a result the question which arises is whether Article 370 should be repealed? And the rules of the country will stick in one language or not?

“First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: ‘Why this discrimination please?’ The answer was given by Nehru’s confidant, the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India has been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still “unusual and abnormal.” Parts of the State’s territory were in the hands of “rebels and enemies.”  In an unlikely event of being attacked by the Muslim forces the Maharaja then, signed the instrument of accession, thus making it a part of India because it was in need of support for the war. But, the article is subject to certain restrictions as laid down in the constitution.

One of the most important question is whether the special provision Article 370 has benefitted the citizens of the state? How has the political and economic turmoil affected Jammu and Kashmir at large? Has Article 370 turned out to be a political flashpoint? “The economic effects of the conflict, which was slightly short of full-scale war, prevailing in the state of Jammu & Kashmir, extend well beyond the people and institutions directly affected by the violence. It touches all subsets of population in varying degrees and affects the socio-economic and political fabric of the society and the entire system.” It has aggravated the situation of the state as it doesn’t allow people from other parts of the country to hold any assets or seek employment in the state. Anti-defection law for anti-party activities where a member could be expelled is also diluted in J&K as the decision lies in the hands of the legislative party leader and not in the hands on the speaker. Not only are these adding to the political turmoil, the leaders making use of this issue just in order to gain votes during elections is a major issue. “It concerns the center –state relationship. There are three different views about it. BJP wants to completely abolish it while other national parties like the Congress, CPI, CPM and the Janta party stand for status quo. The State leaders including the government want to further strengthen it by giving more teeth to it.” Does Prevention of Corruption act work over there? Does the RTI work there as it is for the rest of the country? Are the educational provisions working there the same way as in other parts of the country? Because of the continuous dynamic nature of the state, it has been not in a position to overhaul the educational system of the state unless there would have been a better employability situation of the educated youth of the state. Article 360 which provides Financial emergency is not applicable to the State. “Article 361A which provides immunity and protects freedom of press to cover legislative assembly proceedings is also not extended to J&K. While the ministers quota for various opportunities in education, employment, etc. is 15% elsewhere in the country, it is 30% in J&K. CBI has limited jurisdiction in J&K meaning that if the CBI wants to exercise powers and the jurisdiction in any FIR registered in J&K State, then it needs the consent of the J&K Government or the High Court. The Supreme Court has only appellant jurisdiction here as it is not vested with the jurisdiction of a Federal Court and can only hear cases on appeal.  In the debate over Kashmir imbroglio, the denial of rights to the Sikh and Hindu minorities has been consistently ignored. It is considered “politically incorrect” in the context of protecting “uniqueness” of J&K.”

Adding to the severe conditions of the state are the economic drawbacks. Tourism is one of the most important dependable and sustainable means of growth for the citizens of the state. “Since large number of people depend on tourism directly or indirectly for survival, this particular section of the society is the worst hit during the last two decades. The turmoil didn’t allow the development of the much-needed infrastructure (in some parts the existing infrastructure was actually destroyed) which could have served as an incentive for some investors to make (increased) investment. The private investment activity suffered immensely, as there occurred an outflow of investable funds from the State – many businessmen (partly) shifted their businesses outside the State”. Military invasion has thus affected the growth rate of Jammu and Kashmir vastly. Loss of income due to incidences like morbidity or mortality is particularly huge in the State. Furthermore, the events of riots, public disharmony, terrorist attacks have made the situation worse resulting in the loss of public and private property which in turn adds to the total monetary loss of the State. The expenditure which could be put to use for the growth and development of the state economy is rather used more for security related expenditures. “In a changed economic scenario, where the role of the government has shrunk and when we find that already the employment opportunities are decreasing in the Central government, the absorption of the State government is a sheer long-term liability and as such the employment of cosmic employment is not a gainful option due to its zero or very poor contribution to the State income.” Therefore, Jammu and Kashmir has been always at a flatter growth path thus , it has remained at a low ebb.

“In Keshavananda Bharti v. State of Kerala, the Supreme Court ruled inter-alia that equality of status and opportunity promised to all the citizens in the Preamble was a part of the ‘basic structure’ of the constitution and that any law made will be struck down as void if it violates the constitution’s ‘basic structure’. So the question arises as to how can the constitution promise justice, equality and fraternity to all its citizens and then go on to add monstrous sections on permanent residents for one particular state.” Taking all the above points into consideration most of the citizens are of a view that the article is an obstructionist to the larger process of nation-building and development. In a direct or indirect way it has stalled the process of integration of the state with rest of the India by creating a divide amongst the citizens on the basis of rights, religion, linguistic identity, minority groups, etc. “The Article 370 has weakened the political and constitutional integration of the state of Jammu Kashmir with India”. So when the question of abrogation comes into light there have been several opinions on this controversial subject, some in favor while some not. “Ram Jethmalani, ex-union Law Minister in a statement remarked in this connection: ‘Article 370 cannot be removed as it is written within the constitution that no amendment would apply to this article, unless by the approval of the Constituent Assembly. Since the Constituent Assembly has ceased to exist, there is no way that the article can be repealed unless there is a coup.” Another Supreme Court advocate, “Jai Anant Dehadrai, disagrees: ‘Equally ludicrous, is another suggestion from Omar Abdullah, who argues that the original constituent assembly be resurrected to debate this issue… The late professor MP Jain whose book is considered one of India’s foremost texts on constitutional law, makes it abundantly clear that since no such ‘Constituent Assembly’ exists anymore, any limitation sought under Article 370 (3) would cease to operate and the entire provision would be open to amendment under the regular route available to Parliament under Article 368.”

Whether or not the article should be done away with is a very sensitive debatable area of our constitution. According to all the references been mentioned above it would be much more proficient for the country to strike down the article because it not only manifests separatism due to a different constitution being followed in the state and limits the powers of the union but also creates greater political and psychological differences among the citizens. “In conclusion, Article 370 is an anachronistic decree that has outlived its utility, militates against India’s sovereignty, and discriminates against both Indians and Kashmiris by mutually excluding each other from syncretic growth. It is redundant, can be debated and constitutionally discarded.” Hence, the majority wants it to be annulled, and so the will of the people should be adhered to because that is what makes us a democratic republic.


Anuradha Basu, the author, is a third-year student of law at the Jindal Global Law School.

Featured Image Source: Times of India


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