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What is Article 370?

Posted by Admin on June 2, 2014 | 2 Comments to Read

The entire country is divided in its opinion about repealing Article 370. The new government wants to revoke it as it believes that the article has been a “psychological barrier” that has done “more harm than good “. Chief Minister of Kashmir and other political leaders are of the opinion that revoking this article will endanger the security and integrity of the nation. According to them, it would “further alienate the people of the state.” The war of words between the two schools of thoughts has escalated in the past few days. In such a scenario, it would be wise to have a precise understanding of what exactly Article 370 is and why is it so important?

Some Facts about Article 370

Under Article 370 of the Indian Constitution, Jammu & Kashmir is granted autonomy. It is a ‘temporary provision’ that accords special status to the state. All the provisions of the Constitution are not applicable to J&K, unlike other states. Except finance, defence, communications, and foreign affairs, central government needs the state government’s consensus for applying all other laws. Because of this article, residents of Kashmir follow separate set of laws in terms of citizenship, property ownership, and other rights.

Moreover, as per Article 370, the power of Parliament to make laws for the said State is “limited to those matters in the Union List and the Concurrent List.” It doesn’t have the authority to increase or reduce the borders of the state. For those uninitiated, the article was drafted by N. Gopalaswami Ayyangar (Nehru confidante) in 1949 against the wish of Dr BR Ambedkar, who found it discriminatory and against the interest of India. Despite Jawaharlal Nehru’s promise that Article 370 will be gradually abrogated, it has not happened even after more than six decades have whiled away.

It is not known to many that the article 370 has been eroded time and again due to a series of Presidential Orders. These orders over a period of time have made almost all Union laws applicable to J&K. Today, the state is within the “scope and jurisdiction” of almost every institution of India.

Why was Article 370 Incorporated in the Constitution?

Ayyangar had cited several reasons to defend the decision of framing this article. He was convinced that Kashmir was “not yet ripe for integration.” The article was included as a knee-jerk reaction to the ongoing war between India and Pakistan over Jammu and Kashmir. ‘Abnormal” conditions on the ground and the slow secession of the state to “rebels and enemies” were among other reasons highlighted.

UN’s involvement in the conflict further created an imbroglio, which needed a speedy resolution. The concept of offering ‘temporary provisions’ to the state was rooted in the belief that someday the state will integrate with India and the problem will be satisfactorily resolved. Ayyangar thought it wise to empower the people and J&K Constituent Assembly so that they can determine the constitution of the State and the ambit of Union jurisdiction in the State.

Can Article 370 be Revoked Unilaterally?

According to the clause 3 of Article 370, “The President may, by public notification, declare that this article shall cease to be operative,’provided that he receives the “recommendation of the Constituent Assembly of the State (Kashmir).” To put it in simple terms, Article 370 can be revoked only if a new Constituent Assembly of Kashmir recommends revocation. Since the last Constituent Assembly was dissolved in January 1957 after it completed the task of framing the state’s Constitution, So if the parliament agrees to scrap Article 370, a fresh constituent Assembly will have to be formed. The constituent Assembly will consist of the same MLAs elected to the State Assembly. Simply put, the Centre cannot repeal Article 370 without the nod of J&K State

Those who oppose the idea of scrapping the Article, consider the BJP government’s move as “regressive”. Jammu & Kashmir National Conference has stated that abrogating this article will have wider ramifications and it will put the state back to the pre-independence era. Amidst all these, present Chief Minister of Kashmir, Omar Abdullah has recommended recalling the Constituent Assembly for an informed debate.