Abolition of special status under Article 370 from the state of Jammu and Kashmir

Shekhar Dutta

The abolition of special status accorded to the state of Jammu and Kashmir by the 'temporary' provision of Article 370 of the constitution and its appendage Article 35-A after protracted debate in Rajya Sabha on August 5 and in Loksabha on August 6 still remains a matter of controversy with the opposition parties barring  few exceptions crying foul. The erstwhile princely state of Jammu and Kashmir had joined the Indian union with effect from October 27 1947 after the state’s last king Hari Singh had signed the 'instrument of accession' with the government of India on the previous day following an attack on the state by Pakistani marauders to forcibly capture it. Indian army had driven away the Pakistani marauders from 2/3rd of the state's territories but before the state could be fully recovered the government of India had approached the United Nations for intervention, thus creating a serious and festering problem. Pandit Nehru, swayed by a distant ancestral attachment to Kashmir-his family had migrated to outlying areas of late seventeenth century Delhi after being awarded a 'Jagirship' by Mughal emperor Aurangzeb-had referred the matter to UNO under the influence of India's last British governor general Lord Mountbatten. But he had done under Chapter 6 of UN charter that deals with 'Dispute'  and not Chapter 7 that deals with 'Aggression', keeping then home minster Sardar Patel and even the entire cabinet in the dark. There was-as there still is-one little advantage : complying with UNO's verdict under Chapter 6 is not mandatory but complying with the final decision on issue of aggression under Chapter 7 is .  
When the constitution of the country was being drafted by a scholarly team headed by its chairman Dr B.R.Ambedkar, the leadership of Jammu and Kashmir , specially Sheikh Abdulla, insisted on autonomy and special rights for the state's people . Thus the Article 370 was inserted in the constitution as a 'temporary' provision, creating a divide between India and the state. In fact the Article is prefaced by the following words: Temporary provisions with respect to the state of Jammu and Kashmir.  Initially the elected head of the state was designated as 'Prime Minister' while the gubernatorial functionary or governor was designated as 'Sadar-i-Riyasat'. Apart from this, the Article 35-A (permanent residency rights in the state), as an appendage of Article 370, was later inserted in the constitution by a presidential order in 1954 and remains as of day  outside the main body of the Indian constitution. The state of Jammu and Kashmir was also allowed to have a separate constitution which became effective from Janaury 26 1957 . There was a veiled contradiction here as Article 370 made it explicit that Article 1 of the Indian constitution, that "India, that is Bharat, shall be a Union of States. The territory of India shall consist of: The territories of the states, The Union territories and Any territory that may be acquired. The names of the States and the Unions have been described in the First Schedule". And the first schedule of the Indian constitution containing the names of Indian states and union territories mention Jammu and Kashmir in Entry No-15.

However, the Article 3 of the state of Jammu and Kashmir clearly states that the state is and shall remain an integral part of the union of  India and its preamble also speaks of protecting  the 'Unity of the Nation'  . Since the drafting of the constitutions of India and Jammu and Kashmir the provision of Article 370 was diluted to some extent to do away with the designations of 'Prime Minister' and 'Sadar-i-Riyasat' and to replace them with the formal designations of Governor and Chief Minister like in the rest of Indian states. Gradually the jurisdictions of CAG, Election Commission, Supreme Court and other constitutional bodies were extended to the state.  But the provision of Article 370 always prevented the extension and implementation of crucial central laws in the state unless ratified by the assembly of the state of Jammu and Kashmir. More dangerous and iniquitous was the Article 35-A which dealt with permanent residency rights in the state and this was directly an affront to the rest of India. 

These two Article continued to encourage and strengthen an alienation of the people of Jammu and Kashmir and kept on acting as incentive for Pakistan based militant forces since the eighties and, specifically since January 19 1990. The last straw in this regard was the forced expulsion of 4.5 lakh Kashmiri Pandits, original residents of the state in January 1990 by the militant forces as also the fact that altogether 9 amendments of the Indian constitution and as many as 106 pro-people central laws remained unimplemented in Jammu and Kashmir. But the continuing rise in militancy was the decisive factor in inducing a major change like the revocation of the Article 370 and 35-A . Moreover, the people of Jammu and Ladakh never supported the Article 370. But the political powerful families in the Srinagar valley had entrenched interests to protect by preserving and protecting these Articles. Whenever they perceived political trouble these dynasts invariably had recourse to inciting people against the larger nation from the pulpits of the mosques, in their misguided attempt to keep up the apparent schism. Pleading brazenly for Pakistan whenever it suited them these corrupt to the bone politicians also fleeced huge sums of money and other benefits from the government of India. To worsen matters, all elections to the Jammu and Kashmir assembly had been rigged brazenly right from the elections to the constituent assembly and until the year 2002 there was no fair election in Kashmir, specially in the seats of Srinagar valley. The people of Ladakh and Jammu had always been rooting for change in the harmful and anti-national status quo.
Finally, considering carefully the history and current political realities the BJP led central government moved and passed a bill in parliament on 5th August in Rajya Sabha and on 6th August in Loksabha, abolishing the most controversial Articles of the Indian constitution and this will come into full effect from October 31 2019. A number of opposition parties also supported the revocation of the Articles.

The move has come in for criticism from a section of political parties, NGO activists and vested interest groups as undemocratic but , as pointed out by the union home minister Amit Shah in the parliament, the controversial Article 370 has a clear and unequivocal provision in Clause 3 that the President of India can supersede  the Article with approval from the Jammu and Kashmir constituent assembly. Since the constituent assembly stands replaced by state assembly the power of approval or ratification vests with it and now that the state is under President's rule under 356 , all the powers of the state assembly are to be exercised by parliament . Hence there was no violation of any law or constitutional provision in abolishing the Articles 370 and  35-A. The people of Jammu and Kashmir seem to have accepted the new reality with equanimity while the people of Ladakh and Jammu are glad of the change. The abolition of Article 370 also led to emergence of Ladakh as a separate union territory without assembly  and creation of Jammu and Kashmir as another union territory with elected assembly. The twin measures are expected to fully integrate Jammu and Kashmir with the rest of India.

With dust settling down over the momentous measure taken by the government of India and the anti-national activists and bankrupt opposition losing zeal in confronting the inevitable , it seems that the state of Jammu and Kashmir will come to normalcy soon after the expected withdrawal of all restrictive steps put in place. Pakistan is now in a pathetic state, wailing over the fate of 'Muslims of Jammu and Kashmir' and trying to provoke trouble. But in the face of global snubs on its position including whole series  from Islamic countries, economically bankrupt Pakistan is now concentrating more on defending occupied part of Kashmir or so-called 'Azad Kashmir', despite its hollow rhetoric and bluster on nuclear strikes.

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