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An Essay on Article 370 and Special Status of Jammu and Kashmir

With the increase in subversive and terrorist activity in the state of J. & K., There has been a clamorous demand for the abrogation of article 370 of the constitution which grants a special status to Kashmir, the demand has been fanned and intensified by the role of Pakistan in J. & K. Subversives and commandos trained in Pakistan have infiltrated into the state and there has been an increase demand for secession and independence. This has caused the fear that the Accession of Kashmir to India in not complete-as complete as that of the other states and the accession can become total if Article 370 is abrogated. While Jan Sangh, and now the BJP, has been most vocal and persistent in voicing this demand, through the Central BJP Government has emphatically started that the article will never be abrogated, and the state will continue to enjoy its special status. The need is to rise above regional controversies to consider the whole question dispassionately.

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When India became independent in August 1947, Jammu and Kashmir was not a part of India. It was only by the instrument of Accession dated 27-10-47 signed by the Maharaja on behalf of the J. & K. state, the state acceded to India. By its clause 370, the Maharaja accepted that the matters specified in the schedule are the state matters with respect to which the Indian legislature may make laws for the state J. & K. the instrument further provided that its terms and conditions shall not be varied by amendment of the act or of the Indian independence act, unless such amendment is accepted by the Maharaja. The instrument also clearly laid down that nothing in the instrument shall be deemed to commit the state in any way to the acceptance of any future constitution of India. In other words, the instrument was applicable only to a limited number of meters. Defense, external affairs, Communications, is the matter with respect to which the Indian legislature could make laws for the J. & K.

India accepted the accession only when Sheikh Abdullah, the undoubted leader of the Kashmiri’s, gave his consent to it. This special relationship of J. & K. found its reflection in Article 370 of the Constitution. By virtue of the Article, Indian parliament can legislate for J. & K. on matters other than those mentioned in the instrument but only after obtaining the concurrence of the State of J. & K. Thus J. & K. has a special status, unlike the other States of India where the parliament can legislate on subjects mentioned in the Union and Concurrent list. No doubts many Central ACTS have been extended to J. & K. for practical administrative purposes. But it needs to be emphasized that none of them has been so extended without the concurrence of the elected members of the J. & K. legislature and government. Thus the argument that there has been any diffusion of Article 370 is misconceived.

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The political hysteria raised the effect that the abrogation of Article 370 was essential to the solution of the Kashmir problem, is futile, mischievous and communal. The abrogation is constitutionally impossible and the call for an Abrogation can raise the apprehensions of the minorities, and sow the seeds of discord. Indeed, much of the success of the secessionists is largely owing to this clamorous demand. Many legal experts various provisions of the Indian Constitution have been extend to J. & K. with the consent of the State Assembly.

The plea of those who favor Abrogation is (a) that this Article is the root cause of all the trouble over J. & K. (b) that it has encouraged the secessionist elements in other parts of the country. (c) Abrogation of the Article will prove that the Government is serious in tackling the menace of terrorism, and (d) the Constituent Assembly proceedings show that when objections were raised the inclusion of Article 370 an assurance was given by the framers of the he Constitution that it would be weakened and modified gradually. This happened to some extent when Bakshi Gulam Mohhmad was the prime Minister, but it was not taken to its logical conclusion.

Article 370 serves as a reminder to the Muslims of Jammu and Kashmir and the rest of the country that the merger of the state is not complete. This impression creates uncertainty and ambiguity. It is also argued that the situation has become grave despite the fact that the Article is very much a part of the Constitution and as a result the State continues to enjoy the special status accorded to it when it acceded to India. The Bharatiya Janta Party made abrogation of this Article one of the major issues in the election manifesto for the IX Lok Sabha polls, and its leaders had been vociferously demanding its abrogation ever since.

But the United Front’s main stands committed to the retention of this Article in the Constitution. They like countless other people in the country, regard it as “a bridge between the state and the rest of the country”. The Kashmir Chief Minister Dr. Farooq Abdullah warned that any attempt to abrogate it “will have serious consequences”.

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The fact that Article 370 is the only legal window through which the Republic of India maintains it’s territorial Link with Jammu and Kashmir and extends its jurisdiction to the State. In other words, Article 370 provides a mechanism to declare Kashmir an integral part of India and at the same time it allows the people of the State to exercise their option for either a total merger with India or retain their present identity. The convention that there is discrimination between Kashmir and the other States of India is not correct. However, if there is such a distinction it is due to the historical factors, as well as to the necessity of assuring the sensitive people of the valley that their distinct identity will not eroded. The effect of this Article is that J. & K. will continue to be a part of India. The Union Legislature will continue to enjoy jurisdiction to enact laws on matters A “Hung Parliament” and its Consequences specified either in the instrument of Accession or those added later on with the concurrence of the government of the State. A revocation would invite disaster and encourage the anti-national forces demand plebiscite and independence for Kashmir.

Legal experts have repeatedly assured that the accession of Kashmir of India is constitutionally total and complete. There is nothing in the constitution that differentiates it from, say, Uttar Pradesh or West Bengal or Maharashtra. As for the few limits on the extension of laws passed by Indian Parliament to J. & K. it is quite clear from the Seventh Schedule that there are similar restrictions in respect of several other States. So the provision is not discriminatory. The belief that this Article promotes secessionism and creates doubts about the legal position of J. & K. Is not well founded. In recent years secessionist demands have been made in several States- Punjab, Assam and Tamil Naidu-at one time or another by discontented groups, even though these states are not governed by Article 370. The fact that the demand in Kashmir Valley is most vociferous is because of the continuing politically motivated encouragement given by Pakistan to the subversive elements.

“Article 370 is a binding commitment and must not be revoked; otherwise the Government of India’s credibility will be seriously eroded. India’s prestige and honor do not suffer and are not endangered in any way by giving the people of Kashmir, highly sensitive as they are special treatment and certain powers within the ambit of the overall Indian federal structure”. Those who repeatedly demand the abrogation of Article 370 Valley. It would be best to end this futile controversy, because, as all parties in India agree, Kashmir is an integral part of this country.

To conclude : the insistent demand for abrogation of Article 370 is suspected by many nationalists to be a design to weaken the Centre when the country is facing a grave situation which calls for a check on all fissiparous tendencies. The demand intensifies the fears of sensitive Kashmiris. It is not legally and constitutionally tenable; it casts doubts on our secular professions, and intensifies the fears of the minorities.

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