Law · Public Policy · Society

370- A Nation Inside A Nation

Kashmir- nature’s heritage, a haven that has enchanted humans and has being applauded by mankind for its scenic class. It is a land which used to be an important center of Hinduism and later for Buddhism. It also has deep roots and recognition in the womb of golden history of Mahabharata. According to folk etymology, the name Kashmir means Desiccated land (from Sanskrit, Ka= Water and Shimeera= desiccate)[1] .

As it is said that even the moon has some blots, similarly all the prosperity, divinity and the blessedness of Kashmir has caught the evil eye. The blood of the holy lake became a swamp of blood. It is mingled with the gore of humans who have perished in this valley of heaven. The thunder of clouds is replaced by the sounds of bomb blasts; pretty smiling faces with welcoming eyes are now terrorized and filled with distress. Why this bloodshed? Why this heaven has turned into a hell and a land of terror? Why this valley of flowers has turned into a valley of guns and death? Why is it happening? Is it just because of a few lines stating special privileges to Jammu & Kashmir mentioned in our Constitution? Or is it happening due to ruthless, conniving and opportunist politicians who have been manipulating the law and misusing their powers to elevate their vote bank?

Article 370 was incorporated in the Constitution of India by the constituent assembly and Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir and the principal drafter of Article 370) in Oct 17th, 1949[2]. Having been awarded some privileges and the grounds on which it was questioned by Mr. Ayyangar was that Kashmir was not ripped enough to undergo the integration unlike other princely states in India as a result of war between India and Pakistan. Kashmir has been a bone of contention between the two nations. It was an agreement between both the nations that none of them will attack J&K as J&K chose to remain independent during 14th and 15th of Aug, 1947. But J&K was attacked by Azad Kashmir Forces supported by Pakistan hence Maharaja Hari Singh of J&K chose to accede J&K to India and finally this accession was done by Maharaja of J&K after certain considerations and this issue received the international dimensions. Mr. Nehru (India’s 1st Prime minister) who took it to United Nations on the recommendation of Lord Mountbatten and finally Jammu and Kashmir was given temporary provisions of Article 370 on a hope that one day it will be integrated with India like other states and the valley would be in complete harmony and peace. But majority of the leaders including Sardar Patel along with a huge population of Jammu and Kashmir were not satisfied with such discrimination. Sardar Patel was a bit pragmatic on this issue unlike Nehru[3].

Now the next question that arises is does this article with special privileges have any positive and fruitful aspects? It reads as follows:

“370. Temporary provisions with respect to the State of Jammu and Kashmir[4].-

(1) Notwithstanding anything in this Constitution,-

(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to-

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature mays make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.”

‘Narrowed Centre’

Like other democratic nations the parliament of India also has the supreme authority and power to make and amend laws and it enjoys the sovereign powers but, this act had given birth to a sense of separatism and restricted the parliament or in other words, Article 370 was handicapped. According to Article 370, except for defense, external affairs and finance & communication, the parliament of India needs the consent of J&K. Where the parliament is the supreme authority to make or amend laws for the entire nation, but as an effect of Article 370, Parliament is restricted by certain boundaries when it comes to making laws for J&K. It is clearly mentioned in our constitution that the president can revoke this temporary provision but it can only be done by the recommendation and assent of State Legislature of J&K. And due to these limited powers, the laws made by Parliament are not applicable on J&K, and are often rejected by its Legislative Assembly. The Union of India has no right to suspend the constitution of J&K.

This act had given birth to a sense of separatism[5]. Under the umbrella of Article 370, Jamait-e-Islami and other communal organizations are being financially assisted and receive huge political support for promoting separatism based on Islam. The Kashmiri Muslim leaders have succeeded in carrying out economic discrimination and exploitation of Jammu and the Ladakh regions[6].

Emergency Provisions, Residential and Property Rights and Others

The union of India lacks the right to declare the provision of financial emergency i.e. Article 360 in J&K. No proclamations made on the grounds of internal disturbance or any anticipated threat unless it is made by due consideration and consent with the Government of J&K. The statesmen live under separate set of laws with respect to citizenship, ownership of property which per se questions the Right to Property i.e. Article 17 of our Constitution. Not only this, Part IV, i.e., DPSP and Part IVA, i.e., Fundamental Duties are not applicable on the state of J&K.

Impact on Economic and Social Life

The land of J&K is prorated with numerous natural and human resources like water, wind, soil, forest (Spread over 2,236 sq. kms.), tourism, area (222236 km sq.), and man power[7] (12.55 million in 2011) etc. Still this state, a bigger state in terms of resources and man power is not more than a beggar state. GSDP (Gross State Domestic Product) of the state is going down year after year at -2.58 percent annually[8]. Despite an ideal location, there is hardly any big industry which could generate employment. The reasons are quite clear. No big investor wants to invest money in a land of threat and dual governmental complexities. Coming to the education sector, the scenario is pretty similar. The number of universities and quality of education is not up to the standard. Tourism, which is the back bone of J&K’s income is declining. The rate of tourists is also decreasing here due to the threat of security created by non-stop terrorist attacks which are pushing thousands of people jobless and have given birth to unemployment.

Demand for Abrogation on 370

After a long drought of 10 years, BJP is again at the center. BJP, which used to be called as ‘Jan Sangh’ and RSS has always been a great propagator of Hinduism ideology and strongly asserted against the special provision given to the state of J&K. A statement by the Prime Minister Mr. Narendra Modi, following the ideology of RSS and BJP gave birth to the discussion of Article 370. BJP upholds that it is time that we should re-evaluate and review Article 370 as it was temporary and was supposed to erode gradually. But people who are against the abrogation argue that abrogation would result in very serious consequences. It has resulted in a cold war between the central government and the Government of J&K.

Conclusion                      

Since it was always meant to be a temporary provision, which was made under some unusual and critical circumstances to maintain the harmony of the state is now ripped enough for the integration which was a complete fallacy and it was highly opposed by Sardar Patel and Ambedkar[9]. It is the time when there should be a uniform civil code for the people of India. This article has created separatism and encourages secessionist activities within J&K. It has also created a psychological barrier in the minds of the people of the nation. It is the time to make people of J&K feel as a part of India. Now, abrogation of the special status is justified and it is the need of the hour to device a logistic interpretation of the relevant clauses of the Article 370 by following the intention of the constitution framers because the framers never intended to bestow the constitution with rigidity but their job was to open a window to make the constitution a bit flexible for the required amendments to keep a pace with time and the ever changing task of the society and to serve better quality justice. Amendment of Article-370, as per the present circumstances is a myth as of now but this situation can be easily dealt with, using logistic approach and can be diplomatically modified to a reality.

A Kashmir Poet[10]

I cannot drink water
It is mingled with the blood of young men who have died up in the mountains.
I cannot look at the sky; It is no longer blue; but painted red.
I cannot listen to the roar of the gushing stream
It reminds me of a wailing mother next to the bullet-ridden body of her only son.
I cannot listen to the thunder of the clouds It reminds me of a bomb blast.
I feel the green of my garden has faded Perhaps it too mourns.
I feel the sparrow and cuckoo are silent Perhaps they too are sad.
” 

[1] http://en.wikipedia.org/wiki/Kashmir History of Kashmir

[2] Amitabh Matoo – ‘ Under standing 370’ The Hindu, Dec 6th, 2013, http://www.thehindu.com/todays-paper/tp-opinion/understanding-article-370/article5427957.ece

[3] Amitabh Matoo – ‘ Under standing 370’ The Hindu, Dec 6th, 2013, http://www.thehindu.com/todays-paper/tp-opinion/understanding-article-370/article5427957.ece

[4] Cosntitution of india, http://www.constitution.org/cons/india/p21370.html

[5] Insurgency in Jammu and Kashmir , http://en.wikipedia.org/wiki/Insurgency_in_Jammu_and_Kashmir

[6] NarendraSehgal –‘ the conclusion’, http://www.kashmir-information.com/ConvertedKashmir/Conclusion.html

[7] Geography of J&K state, http://www.ikashmir.net/geography/chapter1.7.html

[8] Economic survey of J&K, 01/02/2014 Government Of Jammu And Kashmirhttp://www.indiaenvironmentportal.org.in/content/388809/economic-survey-jammu-and-kashmir-2013-14/

[9] By Pathikrit , The Fallacy of Article 370 and Why it Deserves to be Abrogated, Friday, may 30th , 2014.

http://news.oneindia.in/feature/the-fallacy-of-article-370-and-why-it-deserves-to-be-abrogated-1456694.html

[10] Kashmir- Nuclear Flashpoint , Introduction to Kashmir, file:///G:/370/Kashmir%20%20%20Timeline%201.htm

About the Author

IMG_20140604_130657Pranav Gupta is a self-driven, passionate, and hopeful law student from Symbiosis Law School, Noida. He is a goal oriented professional who is always ready to take on a challenge and who is looking to learn all the time. His abundant passion for law & politics and his commitment are his real strength. He is a person with innovative, ambitious and hardworking qualities. In his very first year of Law Graduation (5 years), he has got the experience of writing more than 5 research paper of various issues like Sustainable development, criminology, Human rights and Minorities, Surrogacy etc. Presently, he is pursuing his internship with Alexis Centre for Public Policy and International Relations.

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