What is Article 370?
Article 370 was the basis of Jammu and Kashmir’s accession to the Indian union at a time when erstwhile princely states had the choice to join either India or Pakistan after their independence from the British rule in 1947.
The article, which came into effect in 1949, exempts Jammu and Kashmir state from the Indian constitution.
It allows the Indian-administered region jurisdiction to make its own laws in all matters except finance, defence, foreign affairs and communications.
It established a separate constitution and a separate flag and denied property rights in the region to the outsiders.
That means the residents of the state live under different laws from the rest of the country in matters such as property ownership and citizenship
What is Article 35A?
Article 35A was introduced through a presidential order in 1954 to continue the old provisions of the territory regulations under Article 370 of the Indian constitution.
The article permits the local legislature in Indian-administered Kashmir to define permanent residents of the region.
It forbids outsiders from permanently settling, buying land, holding local government jobs or winning education scholarships in the region.
The article, referred to as the Permanent Residents Law, also bars female residents of Jammu and Kashmir from property rights in the event that they marry a person from outside the state. The provision also extends to such women’s children.
While Article 35A has remained unchanged, some aspects of Article 370 have been diluted over the decades.
Critics of Article 35A say the provision did not have any parliamentary sanction, and that it discriminates against women.
Here are 8 facts about Article 370
- According to the Constitution of India, Article 370 provides temporary provisions to the state of Jammu and Kashmir, granting it special autonomy.
- 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.
- Dr BR Ambedkar, the principal drafter of the Indian Constitution, had refused to draft Article 370.
- 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.
- Article 370 was eventually drafted by Gopalaswami Ayyangar
- 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.”
- 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.”
- Under Article 370 the Indian Parliament cannot increase or reduce the borders of the state.
Issues over Article 370 – Pros and Cons
Arguments for Article 370
The strong support for Article 370 obviously comes from the state of J&K itself. With insurgency consolidating its roots and, anti-India sentiments also not a rare phenomenon in the valley, any threat to Article 370 would definitely pose a law and order crisis in the valley.
However, even on ruling out the people’s protest in J&K and considering it only on a legal basis, removal of Article 370 would not be an easy task. Currently, apart from Article 370, the only other legal proof which sanctions the accession of J&K to India is the Instrument of Accession signed between Government of India and the then ruler of J&K Maharaja Hari Singh. Problem with the Instrument of Accession is the inclusion of a provision of a direct vote which has the potential to weaken India’s case in Kashmir issue. So until there is Article 370, there is no need for a referendum.
Arguments against Article 370
In addition to the ruling Bhartiya Janta Party (BJP), almost all right-wing organizations want the scrapping of Article 370 arguing that the article has become the single most important roadblock in making J&K an integral part of India. Any legislation passed by the Parliament is not applicable to the state till it is passed by the state assembly. For instance, acts like Right To Information (RTI), Right to Education (RTE), schemes like MNREGA do not have automatic extension to Jammu and Kashmir. Non-residents of the state cannot buy a property in the state. All these factors have widened the gap between the Indian Union and J&K state.
Article 370 has only caused the impoverishment of the state and is also the impediment in the progress of the state. Though Article 370 was considered as merely a ‘Temporary, Transitional and Special’ provision, as the time passes, removal of Article 370 would become more difficult just like the provision of reservation in jobs which was also a temporary provision only for 10 years at the commencement of the constitution.
And last but not the least; we argue that in the absence of Article 370, only Instrument of Accession will be a proof of J&K being part of India. But our western neighbour Pakistan neither has any Instrument of Accession nor Article 370, but still it lays claim over J&K. Therefore, in any situation, India case would always be stronger than Pakistan.
The Article 370 is an internal arrangement which says that how relations between India and Jammu and Kashmir would be governed. Also in international relations, the most important way to substantiate your claim over a territory is to accumulate power. Our neighbour China had also captured some territory in J&K without any Instrument of Accession or any such article in constitution.
Therefore in most likelihood, even if Article 370 is deleted, it would only affect the internal relations between India and J&K and would not substantiate the claim of any foreign power over the state. However, the most common solution for any controversial problem in India is the status quo. So in this case also, the government would prefer its time tested medicine of status quo in the foreseeable future.
By Prabesh Sharma Baral. The author is a Law Student who hails from Rhenock East Sikkim and is currently studying law at Indian Institute of Legal Studies (IILS) in Dagapur, Siliguri.
He can be contacted via his email id email@example.com