Article 370 and its implications

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Article 370 of the Constitution is often considered as a link between Indian and state of Jammu & Kashmir ever since the country gained independence from British Rule. But there have been several legal claims that the Article 370 is a temporary provision which grants right to the state.

What is Article 370?

Article 370 of the Indian Constitution confers special autonomous status to Jammu & Kashmir. It is a 'temporary provision' under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special Provisions." The state has different provisions than all other states, according to the Constitution. For example, till 1965, J&K had a prime minister in place of the chief minister.

History of Article 370

The article provision was drafted by Sheikh Abdullah, since he didn’t desire temporary provisions for Article 370. Sheikh Mohammad Abdullah, the state's 'Prime Minister' and a prominent leader of the Muslims in the Valley, found the inclusion of Article 370 in the 'Temporary and Transitional Provisions' of the Constitution's Part XXI and disagreed. He wanted 'iron clad guarantees of autonomy'. Since he suspected that the state's special status might be lost, and began to advocate freedom from India. This resulted in the dismissing his government in 1953, and place him under preventive detention.

After five decades, the Supreme Court of India set aside a judgement of the High Court of Jammu and Kashmir which stated that Jammu and Kashmir had "absolute sovereign power" on account of Article 370, in December 2016. The Supreme Court held that the state of Jammu and Kashmir has "no vestige" of sovereignty outside the Constitution of India and its own Constitution is subordinate to the Indian Constitution. The Court upheld the applicability of SARFAESI Act to Jammu and Kashmir as it was under the Union list of subjects for which the Indian Parliament is empowered to enact laws for the whole of India, including Jammu and Kashmir.

What are the provisions of Article 370?

Indian Parliament needs Jammu & Kashmir government's nod for applying laws in the state — except defence, foreign affairs, finance, and communications.

The law of citizenship, ownership of property, and fundamental rights of the residents of Jammu & Kashmir is different from the residents living in the rest of India. Under Article 370, citizens from other states cannot buy property in Jammu & Kashmir. Under Article 370, the Centre has no power to declare financial emergency.

Is the provision temporary or permanent ?

A petition filed by a NGO challenged the validity of Article 370 against the Delhi High Court's April 11, 2017 order. The petition had said that the continuance of the temporary provision of Article 370 even after dissolution of the Constituent Assembly of J&K, and that of J&K Constitution which has never got the assent of the President of India or Parliament or the government of India, "amounts to fraud on the basic structure of our Constitution". Besides, it argued that Article 370 was only a ‘temporary provision’ to help bring normalcy in Jammu and Kashmir and strengthen democracy in that State. The Constitution makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution. The plea said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Indian Constitution.

Supreme Court said that in its earlier verdict of 2017 in the SARFESI case, it has been already held that Article 370 was "not a temporary provision". During the hearing, the central government said that the matter be heard after some time as similar matters are pending before the court and are to be listed shortly. The Jammu and Kashmir government clarified that other matters which are pending before the apex court relates to Article 35 A of the Constitution and not Article 370 as submitted by the ASG. It also said that that matter cannot be heard along with the present case, which only deals with Article 370.

Rise of political difference

Ever since, 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.

Conclusion

There has been a concerted and rigorous effort on both sides of the argument which surrounds Article 370. While one section of the people believes that Article 370 is the only constitutional link between the state and the rest of India, there are many who insist that Article 370 has, in fact, is a stumbling block which continues to prevent from becoming an integral part of India. Though legal and constitution factors are still burning, ever since the creation of India, the true sufferers are the people of Kashmir.

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