Decades-long dilemma on J&K special status has ended now
The Indian Government, on Monday, introduced a resolution to remove provisions of Article 370, which provides special status to Jammu and Kashmir. Home Minister Amit Shah also introduced a Bill for the bifurcation of the state of J&K into Union Territory of Ladakh and the Union Territory of Jammu and Kashmir.
Jammu and Kashmir enjoyed special status under Article 370 of the Constitution of India. This article describes you historical and current happening regarding J&K special status.
Historical Background
The conflict started after the partition of India in 1947 as a dispute over the former princely state of Jammu and Kashmir and escalated into three wars between India and Pakistan and several other armed skirmishes.
The state of Jammu and Kashmir had a Hindu prince and a Muslim majority population. The prince envisaged a sovereign status for the state and was reluctant to accede to either of the dominions Indian or Pakistan. As he procrastinated, the newly established state of Pakistan sent its forces behind a front of tribal militia and moved menacingly towards Srinagar. It was now that the prince was forced to sign an Instrument of Accession (26 October 1947) with the Indian Union, endorsed by the popular leader Sheikh Abdulla.
After this Indian troops were sent to defend the state against the raiders from Pakistan. India’s complaints to the UN Security council regarding raids from Pakistan and the Indian offer to settle the status of the state through a plebiscite led to a ceasefire but left 84,0 sq km of area under Pakistani occupation.
On the basis of Instrument of Accession (October 1947) the special status of J&K was recognised under Article 370 of the Indian Constitution which implied a limited jurisdiction of the Indian Union over the state as compared to other states. It clearly states that the provisions with respect to the State of J&K are only temporary and not permananent. It became operative on 17th November 1952, with the some provisions in it.
Article 370 embodied six special provisions for Jammu and Kashmir:
It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.
Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.
The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.
The Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.
Article 370 as a part of the problem
This article neither satisfied the people of the Kashmir nor the people in rest of India. Primarily, it is believed that beacause of the Article 370 there is no proper integration of J&K with India. Article 370 along with Article 35A is also responsible for the lack of development in the Kashmir.
Arguments against Article 370
In addition to the ruling BhartiyaJanta Party (BJP), almost all right wing organizations want the scrapping of Article 370 arguing that the article has become the single most important road block 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.Many scholars argue instead of benefitting the 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.
What is Article 35A
Article 35A was included in the constitution in 1954 by an order of President Rajendra Prasad on the advice of the Jawaharlal Nehru cabinet. Article 35A is based on Article 370, which guarantees special status to Jammu and Kashmir. Article 35A gives Jammu and Kashmir the right to decide who are its permanent residents are and give them special rights in government jobs, on buying property in the state, scholarships and other schemes such as the bar on outsiders buying property and women marrying non-Kashmiris losing their property rights of the state.
What J&K parties say on Article 35A
Jammu and Kashmir parties say Article 35A protects the identity of the people of the state and safeguards jobs and scholarships for state subjects
Current underpinnings
The Union Home Minister introduced two statutory resolutions, one, to recommend that the President issue a notification rendering Article 370 inoperative, and two, to accept the Jammu and Kashmir Reorganisation Bill. The passage of the former resolution will enable the President to declare that Article 370 has ceased to operate. The Bill envisages converting Jammu and Kashmir into a Union Territory with a legislature, and carve out Ladakh region as another Union Territory, but without a legislature.
Wayforward
There are many changes which will occur after these historical changes like Jammu and Kashmir will now be governed by the laws applicable to other Indian citizens. Home minister Shah stated that the president issues an order deleting all the clauses of Article 370, and brings J&K in line with the rest of India instead of being granted special status. He also said big companies, hotels wants to go to the area. Youth will get jobs, become guides. But changes cannot be made owing to Article 370. Although scrapping of Article 370 and 35A has led to some anger among Kashmiris for which government should take care of and channelise their agitation by generating jobs and basic neccesities for them.
ABOUT THE AUTHOR
AKASH KUSHWAHA
Author is an independent commentator and a political analyst.
Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness, and reliability of the information provided, I assume no responsibility, therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. The user of the information agrees that the information is not professional advice and is subject to change without notice. I assume no responsibility for the consequences of the use of such information.
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