Despite Calls For Abrogation, Many Don’t Know The Complexities Surrounding Article 370

Posted by AaKiz Bhat
November 29, 2016

The accession of Jammu and Kashmir into the Union of India was dramatic. That time, the ruler of Jammu and Kashmir, Maharaja Hari Singh wanted to remain independent because he couldn’t decide whether to accede with India or Pakistan. Soon a tribal raid occurred and the Maharaja panicked. Tribals were looting people and killing them. They had even crossed Muzaffarabad (now in Pakistan) and were heading towards Uri, a north Kashmir town which is 103 km from Srinagar. Their main aim was to reach Srinagar. The panicked Maharaja called for help from India but Pandit Nehru wanted to sign a document before sending help. This document is known as the ‘Instrument Of Accession’. Jammu and Kashmir was acceded into the Union of India but on some conditions.

Many people inside and outside Kashmir are ill-informed about Article 370. Some want to abrogate it and some want it to remain.

When the unrest started in Kashmir this year, national news channels were full of debates on Kashmir. Various panelists were blaming Article 370 for the volatile situation; some suggesting its eradication. Although Article 370 is like an empty shell in its current form, many in power have stated their intentions to abrogate it. When the PDP-BJP alliance came into being, the BJP was hell-bent on abrogating Article 370. Separatists and even various sections of society in Kashmir cautioned the government against the move.

But before we even come to a decision whether to erode Article 370 or not, let’s get some facts right about it:

Article 370 was drafted into the Constitution of India by Gopalaswami Ayyangar. He was a minister without a portfolio in the first Union Cabinet of India. It was drafted by Ayyangar because Dr B.R. Ambedkar refused to draft it. Even Sardar Vallabhai Patel was against it because he thought it was discriminatory. Nehru was in favour of it and said that it would be temporary and will be abolished after a period of time. It was actually Sheikh Abdullah who convinced Nehru to grant special status to Jammu and Kashmir.

According to this Article, Jammu and Kashmir is a special state with its own laws and its own Constituent Assembly. Powers of the central government can only be applied to the state with the concurrence of the state’s Assembly. People who are not the state subjects of Jammu and Kashmir can’t purchase land in this state. The powers of the Parliament to make laws for Jammu and Kashmir are limited. But since the Constituent Assembly was dissolved on January 25, 1957, without amending or abrogating Article 370. Since then, this article took permanent shape.

Its abrogation is a complex task.

Article 370 itself states that the President can cease the Article from operating and is subject to modification by a public notification. But before the President can cease this Article, the recommendation of Jammu and Kashmir’s constituent assembly is necessary, which doesn’t exist. So without constituent assembly the article cant be abolished. Even the Jammu and Kashmir High Court in October 2015 stated, “Since the Constituent Assembly did not made a recommendation for the abrogation of Article 370 before its dissolution in 1957, [it] has taken on the features of a ‘permanent provision’ despite being titled a temporary provision in the Constitution.”

This article has now become like an empty shell. Many changes had been brought into this article. Out of 395 articles, 260 articles of the Constitution of India have been extended to Jammu and Kashmir. Other than that, 47 presidential orders have been issued. Various acts passed by the Indian parliament have also been extended to Jammu and Kashmir.

These statistics clearly state that Article 370 is just a name while its provisions have been abrogated slowly. Most of its powers have been taken away. So giving the excuse of Article 370 for the situation in Kashmir Valley is just baseless. Even its full abrogation can make the situation worse.