What is Article 370? How has it affected the Indian political landscape

Jammu and Kashmir is a state located in the northernmost extreme of India. Most of its territory is in the Himalayan mountain range. It shares boundaries with Himachal Pradesh and Punjab in the south. Previously it was the princely state of Jammu and Kashmir. There is a frequent territorial conflict between China, India and Pakistan. The western district of the former princely state, Azad Kashmir, and northern district, Gilgit – Baltistan have been under the jurisdiction of Pakistan since 1947. The Aksai Chin region in the east, bordering Tibet, has been under Chinese control since 1962. There is something really unique about Jammu and Kashmir is that it has two capitals. Jammu is the winter capital and Srinagar is the summer capital. Jammu and Kashmir is divided into three regions – Jammu, the Kashmir Valley and Srinagar. 

In India, supreme importance is given to the constitution. It is the fundamental law of the land and it lays down the basic fundamental rights and duties of the Indian citizens as well as the powers and functions of the government of India. It was adopted by India on 26th November 1949 and came into effect from 26th January 1950. The constitution declares India a sovereign, socialist, secular, democratic, republic and assures to all its citizen's justice, equality and liberty and endeavours to promote fraternity among the citizens. 

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The state of Jammu and Kashmir has special autonomy under Article 370 of the Constitution of India. This article is over seventy years old now. The state of Jammu and Kashmir was added to the territory of  India on the basis of three main points: defence, foreign affairs and communication. All princely states were encouraged to send representatives to the Constituent Assembly to safeguard the interests of their states. The representatives of Jammu and Kashmir to the Constituent Assembly requested that only those provisions of the Indian Constitution which were related to the original Instrument of Accession should be applied to the state. Accordingly, article 370 was incorporated into the Constitution which stated that the other articles of the constitution which gave power to the Central Government would be applied to Jammu and Kashmir only with the agreement of the state’s constituent assembly.

The temporary provisions with respect to Jammu and Kashmir are:

(1) Notwithstanding anything contained in this Constitution -

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;(this article was repealed in 1956)

(b) the power of Parliament to make laws for the said state shall be limited to -

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause

(b) shall be issued except in consultation with the Government of the State provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph 

(ii) of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the 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 clause (2) shall be necessary before the President issues such a notification.

 This article embodies six special provisions for the state of Jammu and Kashmir. They are:

(1) It exempted the state from the complete acceptability of the Constitution of India. They were given the freedom to have their own constitution.

(2) At the time of the framing of Constitution, the Central Legislative powers over the state were limited to three areas mainly defence, foreign affairs and communication.

(3) Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.

(4) The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.

(5) The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.

(6) Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.

Once the state’s Constituent Assembly was assembled in 31st October 1951, the state government’s power to give “concurrence” lapsed. Article 370 was supposed to be a “temporary provision” which was to be adopted until the adoption and formulation of the State’s constitution. However, the State’s Constituent Assembly dissolved itself on 25th January, 197 without recommending any changes to Article 370. Hence, the article became a permanent feature of the constitution according to the rulings of the Supreme Court and the High Court of Jammu and Kashmir. 

This article has created an emotional and psychological barrier among the citizens of Jammu and Kashmir and the citizens in the other Indian states. The vested interests in Kashmir (like governors, bureaucrats etc) have misused the provisions of this article and exploited the poor section of the society. Various provisions dealing with Gift Tax, Land Ceiling Tax etc have ensured that the rich continue to grow richer and there is a growing divide between the rich and the poor. No outsider can own any territory in the state. As a result, the influential people make the rules, decide the prices and choose the buyers which result in abuse of the land. Land resources are completely in the control of the rich and the poor subsequently are totally exploited by the rich.

  The article was supposed to be a temporary article. But now, as its permanence has been established, the rich are exploiting the poor and the land and other resources are in the hands of the rich. Hence, one must rethink the pros and cons of the article and its provisions. Our law-makers should contemplate its relevance and in a democratic society, the people too should stay informed and make their voice heard. 

- Debosmita Bhattacharya   

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What is Article 370? How has it affected the Indian political landscape What is Article 370? How has it affected the Indian political landscape Reviewed by EMN on April 18, 2019 Rating: 5

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