There has been ongoing discussion over abrogation of article 377 of the India constitution.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. For example, till 1965, J&K had a Sadr-e-Riyasat for governor and Prime Minister in place of chief minister.
The provision was drafted in 1947 by Sheikh Abdullah, who had by then been appointed Prime Minister of Jammu and Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru. Sheikh Abdullah had argued that Article 370 should not be placed under temporary provisions of the Constitution. He wanted 'iron clad autonomy' for the state, which Centre didn't comply with.
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.
By far, the most debated and discussed article in the entire Constitution, the current debate on the abrogation of Article 370, has once again brought this provision in the limelight.
But what exactly is Article 370 and why is the Article so important to keep Jammu and Kashmir as a part of India? Here are 10 facts that explain why:
1. According to the Constitution of India, Article 370 provides temporary provisions to the state of Jammu and Kashmir, granting it special autonomy.
2. The article says that the provisions of Article 238, which was omitted from the Constitution in 1956 when Indian states were reorganised, shall not apply to the state of Jammu and Kashmir.
3. Dr BR Ambedkar, the principal drafter of the Indian Constitution, had refused to draft Article 370.
4. In 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader Sheikh Abdullah to consult Ambedkar (then law minister) to prepare the draft of a suitable article to be included in the Constitution.
5. Article 370 was eventually drafted by Gopalaswami Ayyangar
6. Ayyangar was a minister without portfolio in the first Union Cabinet of India. He was also a former Diwan to Maharajah Hari Singh of Jammu and Kashmir
7. Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions.
8. The original draft explained "the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948."
9. On November 15, 1952, it was changed to "the Government of the State means the person for the time being recognised 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."
10. Under Article 370 the Indian Parliament cannot increase or reduce the borders of the state.
Horrendous Consequences of Article 370
1. Secessionism spread to other states
The venomous tendencies of secessionism and separatism, strengthened by those, who incorporated the baneful Article 370 in the Indian Constitution, later on spread to Nagaland, Meghalaya, Mizoram and the Punjab.
2. Regionalism and parochialism
The Article 370 tanned and fed the forces of regionalism, provincialism, parochialism and obscurantism. It created regional conflicts, collisions and controversies in truncated India.
3. Denial of fundamental right to settle permanently
Under Article 19 (1) (e) and (g) of our Constitution, it is fundamental right of the citizens of India to reside and settle permanently in any part of the country, and to practice any profession or carry on any occupation, trade or business. But Article 370 deprived the citizens of India of the right to settle permanently in Jammu and Kashmir. Is it not a strange discrimination that citizens of Jammu and Kashmir could settle in any province of India but the citizens of India could not settle in Jammu and Kashmir, because of this discriminatory Article 370? Even Pt. Nehru, the Prime Minister of free India, could not settle in his own ancestral land Jammu and Kashmir, because of the baneful barrier of Article 370. No citizen of India could go to the state of Jammu and Kashmir without a permit issued by the state government, headed by Sheikh Abdullah. Dr. Shyama Prasad Mookerjee, the founder of Bharatiya Jana Sangh (the progenitor of BJP) defied the permit system and entered the territory of Jammu and Kashmir without permit. He demanded from Nehru Government the abrogation of the detrimental Article 370, which smacked of secessionism. Consequently he was arrested on May 11, 1953, and detained in Srinagar Guest House. On June 23, 1953, Dr. Mookerjee breathed his last, while in police custody in the Srinagar Hospital under suspicious situation: The unofficial probe pointed to medical murder. Thus the founder of Bharatiya Jana Sangh sacrificed his life for the abrogation of the venomous Article 370.
4. Denial of Fundamental right to purchase property
Under Article 370, citizens of India cannot purchase immovable property in the State of Jammu and Kashmir, but the people of Kashmir can purchase property in other states of India.
5. Deprivation of the right to vote
The citizens of India cannot become the citizens of Jammu and Kashmir. Due to Article 370, they are deprived of their right to vote in the elections to the state assembly or municipal council or panchayats.
6. Denial of Jobs
On account of Article 370, Indian citizens cannot get jobs in the state of Jammu and Kashmir. All the jobs in the state are reserved for the citizens of the state.
7. Detrimental to women of the state
Article 370 is highly detrimental to the women, who are even born and brought up in the state of Jammu and Kashmir. If a woman, who is permanent citizen of the state, gets married to a man who is not a citizen of the state, she loses her properly. She is deprived of even her ancestral property. In the state of Jammu and Kashmir, domicile certificates issued to women are valid up to their marriage only. They have to acquire fresh 'Permanent Residence Certificate' after their marriage.
8. Denial of admission and job to Kashmiri women after marriage
If a woman, who is born and brought up in Jammu and Kashmir and is permanent citizen of the state, marries a citizen of India, she cannot get a job in the state, nor can she get admission in medical, engineering or agricultural colleges established with the financial aid by the Union of India.
9. Victimization of Hindu Immigrants - Supreme Court helpless:
On account of unholy partition of our holy Motherland, unfortunate Hindus were ousted from their ancestral homes in West Pakistan. A few thousand Hindu families migrated to Jammu and Kashmir and settled there. Though, fifty five years have elapsed since their migration, yet they, their children and even grand-children have not been granted citizenship on the ground that outsiders cannot settle permanently in the state on account of Article 370. Consequently, these unfortunate Hindus are deprived of their fundamental rights. They cannot purchase land for construction of their houses. Their names are not included in the electoral rolls of the state assembly. Hence, they cannot exercise their franchise in elections. They cannot get Government or semi-government jobs. They arc not sanctioned loans by the state government. They are not granted government licenses for the purpose of business. Their children are not granted admissions in medical or engineering colleges of the state, though the Government of India bears most of the expenses of the said colleges. Thus, they are treated as second-class citizens in a state, which is declared as an inseparable part of India. Having seen no other alternative, the unfortunate displaced persons knocked the door of the Supreme Court. It is a matter of irony, agony and astonishment that though the Supreme Court realized the injustice rendered to them; yet, it could not give any relief to them because of the discriminatory Article 370. It is a heartrending tale that the honorable judges of the Supreme Court, in spite of having recognized their grievance as justifiable, expressed their inability in their judgment to give any relief to the unfortunate Hindu immigrants in view of the peculiar constitutional position prevailing in the state.
10. Incapability to alter the boundaries of Kashmir
Under Article 3 of the Indian Constitution, the Parliament has the right to change the boundaries of any province, provided the President consults with the authorities of the concerned province before signing the bill. But, on account of Article 370, the Parliament of India cannot alter the boundaries of Jammu and Kashmir. For doing so, it has to seek approval from the Constituent Assembly of Jammu and Kashmir. It indicates that the Constituent Assembly of Jammu and Kashmir is above the Parliament of India. Had Pt. Nehru not applied Article 370 to the state of Jammu and Kashmir, the Indian Parliament could have split Kashmir into various parts and annexed the said parts to the adjoining provinces. The only panacea to the problem of Kashmir is to abrogate Article 370, split Kashmir into parts and annex the said parts to the adjoining provinces in such a way that the Muslims may lose the majority, and Hindus may be induced to settle permanently in the said parts with overwhelming majority. The well-planned systematic dispersal of Muslim population and settlement of Hindu population in its place is the only remedy to the malady of Kashmir.
11. Non-acceptance of Hindi
The decision of the Union of India pertaining to Hindi as National language could not be applied to Jammu and Kashmir because of Article 370. No member could speak in Hindi in the State Assembly without prior permission of the speaker.
12. No CBI in Kashmir
On account of baneful barrier of Article 370, Central Bureau of Investigation (CBI) was not allowed to work in Jammu and Kashmir. Thus Sheikh Abdullah and his accomplices were let loose to collude with Pakistani conspirators and infiltrators. The reports of his collusions and conspiracies with Pakistani agents and spies could not reach the ears of the ruling leaders of India.
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