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Article 370 and its issues

Posted on : 09 Sep 2019

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Article 370 and its issues
Article 370 has once again become a nation wide controversy for the past three weeks. Creating a highly militarist approach towards extremism, without asking for public opinion, shunning a political process, the union government made a strong move by removing Article 370 offered to Jammu and Kashmir, which it had enjoyed in the Constitution through a combination of executive and parliamentary measures. 

What is Article 370 ?
It is a special status offered to Jammu and Kashmir which has been the subject of dispute between India, Pakistan, and China in 1947. It allows the state to have a separate constitution, a state flag and autonomy over the internal administration of the state. The Article 370 embodied six special provisions for Jammu and Kashmir:  a) It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution. b) Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications. c) Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government. d) The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly. e) The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened. e) Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible. f) Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.

Rise of political difference

The autonomy offered to Jammu and Kashmir by Article 370 has been an issue for several reasons. Firstly, it was enjoyed by a State that remained divided between India and Pakistan while being ruled by a king. Secondly, the constitutional provision applied to Kashmir which the only Muslim majority State. These two features should have made it all the very important to preserve the assurance maintained in Article 370. But for politcal reason, BJP government felt that uniformity and oneness is very important. As a result, the political manifesto of Bharatiya Janata Party manifesto for the 2014 general election was released, the contentious issue, the party pledged to integrate the state of Jammu and Kashmir into the Union of India. When the party won the national election, BJP’s parent organisation, the Rashtriya Swayamsevak Sangh (RSS), called for the abrogation of Article 370. But due to some reasons, BJP didn’t take up the issue. While the PDP and BJP formed government in the Jammu and Kashmir, there was a sharp difference between them on the issue of Article 370. While, the Bharatiya Janata Party has been maintaining its stand that Article 370 should be scrapped. But now, since it won the second time, it decided to implement its promise.

Article 370 and federalism
By abrogating Article 370, bifurcating Jammu and Kashmir into Union Territories, the BJP government has used the power of Constitutions for its gains. Though this is not the first time that the union government has used its powers to bifurcate a state without people's opinion. For example, the creation of Telangana in 2014 is one such. Apart from this, the creation of the Union Territory of Ladakh in one way is cited as a response to a long standing demand in this region which has a large Buddhist population. But the current step of the government to transfer the remaining part of J&K State into a Union Territory, is something very different from the past approach which could have a long lasting consequences in Kashmir, and also strong implication on the federal structure of Indian society. 

The Judicial Challenge
The Supreme Court’s decision to form a high level five-member Constitution Bench to examine the validity of the abrogation of the special status given to Jammu and Kashmir puts an end to unnecessary apprehensions. The top court is aware of the constitutional morality of the rest of the country while deciding the destiny of a State without the consent or participation of its citizens. While there is strong popular support for the government’s decision to declare Article 370 inoperative and to divide the State into two Union Territories, the judiciary is duty-bound to examine the legality of the measures taken by the President and Parliament. The court will give strong legal verdict on the questions of constitutional importance, since it has a far-reaching implications for democracy and federalism.

There are strong arguments against and supporting abrogation of Article 370. While one section argues that Article 370 is the only constitutional link between the state and the rest of India, other feel that it has been 70 year old stumbling block which continues to prevent from becoming an integral part of India. But the truth is that ever since the creation of India and article 370, the kashmiri people are sufferers of the issue. 

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