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What is Article 370?
To understand the controversy surrounding Article 370 and 35A, we need to delve a little bit into history. From 1857 to 1947, when India was under the rule of the British monarch, there were two types of governance in India.
In places such as Bengal Presidency, Madras Presidency they exerted a direct government. In some areas, local kings and princes were allowed to carry out the administration and pay taxes to the British. There were about 570 such small regions in India in 1947.
At the time of independence, these states were given the option of joining India or Pakistan. Those that chose to remain independent were Jammu and Kashmir, Hyderabad and Junagarh. Hyderabad was annexed by force, Junagarh decided to join India after a referendum.
J&K presented a peculiar problem. Most of its population was Muslim, but its ruler was a Hindu king, Maharaja Hari Singh. He realized that the position of J&K as strategically significant since it was a buffer between two nations and also much of the Indus waters flow through it.
When Pakistani tribesmen attacked J&K, Hari Singh sought the help of India and signed an Instrument of Accession.
The IoA, later on, gave to J&K a special status known as Article 370. Article 370 gives J&K the power to create its own Constitution. Indian law does not operate in J&K apart from matters of Defense, Foreign Policy, and Indian currency.
Hence through Article 370, J&K enjoys an enormous amount of autonomy and is not a part of India in the sense that the other states are.
Essential points of Article 370
- Residents by birth of J&K enjoy dual citizenship of India and J & K.
- The term of J&K legislative assembly is 6 years unlike the rest of India where it is five years
- Only a permanent resident and citizen of J&K can buy land there.
- A Kashmiri woman who marries an Indian from another state will no longer be a citizen of J & K.
- Apart from defence and foreign policy, all matters are deiced by J&K legislative assembly.
- All bills passed by the Indian Parliament have to be ratified by J&K assembly.
- An emergency cannot be applied to the state of J&K except in case of war.
- Sharia law is the law of J&K to a large degree
- Right to Education is not implemented in Kashmir.
Special requirements of Article 35A
- It allows J&K resident to receive preferential treatment in case of government jobs.
- This also extends to owning property and receiving state government benefits.
Thus it can be seen that J&K is indeed unique in many ways. Having its own Constitution is by itself a huge difference.
The controversy of repeal
Should a state of India have special status more than 70 years after independence? Sardar Patel and B R Ambedkar had opposed Article 370 in the 1950s but been overruled by the Prime Minister, Jawaharlal Nehru.
This has become recently in the past decade a point of controversy. But how exactly can Article 370 be repealed?
Usually, most parts of Constitution can be amended by 2/3 majority of the Parliament. In some matters such as the election of President, powers of President, powers of Supreme Court it would also need ratification by half the states.
The Indian Constitution is inherently rigid and hard to change. Article 370 provides another stumbling block which is requirement of ratification by J&K Constituent Assembly.
But the J&K Constituent Assembly ceased to exist in 1957. After all, Article 370 was thought of as a temporary measure, and it had been believed that the issue would be resolved soon.
In the absence of the J&K Constituent Assembly who on behalf of all Kashmiris would ratify it? The obvious answer is the legislative assembly. However, with both NC and PDP along with smaller parties against the move, it is unclear how the repeal will happen.
The only option open before any Central government which wishes to remove Article 370 is first to have a 2/3rd majority in Parliament on the issue and then by force implement it.
However, given the volatile nature of Kashmiri politics that seems unlikely.
In addition, SC said in April 2018 that Article 370 is now a permanent provision of the Constitution. This makes its abolition challenging, to say the least. Several PILs about Article 35A has been pending for years in front of Supreme Court.
Article 370 is the only legal treatise that makes J&K a part of India. Repealing it would mean that Kashmiris may demand the right to self-rule since otherwise, it amounts to the accession of Kashmir by India. There is a pending UN Resolution from 1949 about the referendum in Kashmir that would come to fore.
China would like nothing more than giving independent Kashmir billions of dollars just to give it a perch over Indian plains.
Pakistan would like this perfect chance to foment further discord in the state. Stone-throwing has been a very significant problem for the past few years. The unrest will no doubt accelerate.
Any answer on the issue is far away, and probably the status quo is the best course to follow.