Should We Abrogate Article 370 ?

Article 370

Article 370 of the Indian Constitution is undoubtedly the most controversial part of the revered document. This Article defines and governs the special federal relationship between the state of Jammu and Kashmir and the Indian Union. Of late, there has been a growing voice within the country for abrogating this Article. It is also a fact that the ruling party at the centre, BJP, in its 2014 Election Manifesto had clearly mentioned the abrogation of the said Article as one of its objective or promise. Thus, it is time to ask ourself, should we abrogate Article 370 ?

Myths Surrounding Article 370
There are several myths around Article 370 which create a lot of confusion. Its nature and content is often misinterpreted (deliberately or otherwise) to suit distinct political narratives. To begin with, Article 370 is mentioned under PART XXI of the Indian Constitution which reads as, “TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS”. The words ‘temporary’ and ‘transitional’ here highlight the vision of the founding fathers as it becomes amply clear that they (framers of our constitution) expected these provisions not to be permanent.
Secondly, J&K is an “Integral Part of India”, this phrase it mentioned not only in the Indian Constitution but also contained in Section 3 of the Jammu and Kashmir Constitution as the J&K Constituent Assembly in 1954 ratified this phrase. Hence, technically “Integral part” phrase is Constitutional and therefore correct.

Agreements Concerning Special Provision for Jammu & Kashmir
There are three main agreements or documents from which special provisions for J&K originate, and these are :
1. Instrument of Accession (IOA) signed by Maharaja Hari Singh in 1947 with Indian. This forms the bedrock of special federal relationship between Indian and J&K and under this document Maharaja surrendered three three key subjects of Defence, Communication and Foreign relations to the Indian Union. Thus, on those subjects (of both Union and Concurrent) which fall outside these categories, the J&K state legislature enjoys greater autonomy and primacy.

2. The Presidential Order of 1954
This is the main document which enlists the Articles of the Indian Constitution that extend to J&K. Consequently, Articles 1 and 3 apply to J&K .

3. Kashmir Accord
This was signed between Indira Gandhi and Sheikh Abdulla in 1974.

The Debate on Abrogation
There are three dominance views that emerge, namely :
1. Against Abrogation
These are the people who argue that the demand of annulling Article 370 is more emotional than substantive. They claim that the real issue with J&K is developmental and thus solution lies in providing good governance and developmental administration to the people. In absence of these, divisive politics and communal agenda prospers leading to polarization. Polarization at mass Supreme Courtale becomes a breeding ground for extremism, which coupled with moral and material from Pakistan manifests itself in the form of militancy in Kashmir. Hence, these people claim that if Article 370 is judiciously used to usher in development in the state, to provide jobs to the youth and promote tourism and culture of Kashmir, then the demands of abrogation itself will become irrelevant.

2. In support of Abrogation
These people argue that Article 370 is prevents the full Constitutional and legal integration of J&K into the Indian Union. They claim that this de-linking is harmful to both India as well J&K. This is because provisions relating to the spirit of Constitution like for instance Secularism could not be promoted due to this gap, in Kashmir. They also point out that various necessary provisions of the Indian law do not apply to the state of J&K. Provisions like RTE ; RTI ; Representation of Peoples’ Act 1950,1951 ; several welfare programmes of Ministry of Child and Women Welfare etc do not apply to the state. This directly effects the welfare of the people of J&K who are barred from benefits that rest of the Indians enjoy. Thus, they argue that for the betterment of all, and especially the people of Kashmir, Article 370 must be done away with.

3. Supreme Court’s view
Supreme Court recently observed that there is no vestige of sovereignty outside of the Indian Constitution and that it is wrong to refer to the people of Kashmir as the “citizens” of Kashmir (J&K High Court had earlier used the phrase “Citizens of Kashmir” in one of its judgement) as they are foremost the citizens of India. Supreme Court also highlighted that, the Constitution of Jammu and Kashmir is subordinate to the Constitution of India. It also marked that J&K Constitution has been adopted for regulating its ‘Integral relationship with India”, and that under Section 3 of the J&K Constitution, it is Integral part of India.

Abrogation May Not Happen
To sum up the diSupreme Courtussion, it could be argued that after taking all the viewpoints as well as the political realities into consideration, despite of its flaws it will not be a prudent decision to abrogate Article 370. This is because such an act will cause more harm than benefit as it will have the potential of hightening instability. Although from the above listed arguments it becomes clear that J&K is indeed an Integral part of India but to snatch away Article 370 in the present situation will only going to cause more disruption. Solutions to such problems have to be seen pragmatically and politically. In paper, it may look as if abrogation will serve all good purposes but the ground realities of Kashmir necessitate not only the continuance but also adherence to Article 370 in both letter and spirit. If today it is abrogated, it will give a voice to the separatists who will try to exploit this situation to their own advantage by portraying India as a “betrayer”. Secondly even the mechanism to do so is not present today, for Article 370 nowhere preSupreme Courtribes the steps for its abrogation. So if it is forcefully done also, it is possible that the Supreme Court of India will nullify such a decision. Lastly, doing away with Article 370 will also amount to be going against the spirit of the negotiation under which Article 370 was adopted. India will do a great disservice to its glorious history and its first leaders by going ahead with abrogation.

-Contributed by Kunwar Suryansh

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