Governance · Law

A Debatable & Heavenly Territory: Kashmir

Shwetal Jogdand discusses the special status of Jammu & Kashmir as a state in India.

The disputed area of Kashmir has been a breaking news since a very long period and even now it’s quite a distinguished subject for India and Pakistan. Totally contrary allegations of both the countries are making it even worse but maintaining peace and calmly solving the issue is the best decision that has been taken by India at least. Whereas Pakistan, is still not deviating from its statement that Kashmir is Pakistan’s integral part. For its justification the point of plebiscite (A direct voting option for people of country to express their opinion for any important public question) was raised back then and even now. Well, going back in time when instrument of accession was signed on 27th October, 1947 in the favour of India with a condition for conducting plebiscite to decide the future of Kashmiri people. Moreover, it was stated by Pakistan government that the agreement of accession was signed under coercion which makes it void but subsequently, it became just an allegation without any support.

The Legal question of the disputed Kashmir area was solved on the same day when Article 370 was adopted on 17th November, 1956 and at that moment, adoption of separate Constitution occurred for Jammu and Kashmir on 26th January, 1957. This Article grants special autonomy to this state. At the time of inventing this special status India’s founding fathers such as Sardar Patel and Dr. B. R. Ambedkar were not in favour of it as it seemed unfair.

Article 370 gives power to this state to have separate constitution, separate laws, separate heads and even separate flag which is being followed since then. Indian Government will have control over only Foreign Affairs, Communications, Defense and currency. However, all others laws applied by Indian parliament will be first approved by the Jammu and Kashmir State government and only then will it be passed. Not only this, but another major provision in it says Fundamental Rights, Duties, Directive Principles and State Policies and even supremacy of the Supreme Court will not apply to the state but later on through Delhi Agreement, 1962, the Supreme Court’s jurisdiction was extended to Jammu and Kashmir. Along with this, Article 35A of Indian Constitution allows the state of Jammu and Kashmir to prefer its citizens for employing under state government, for acquiring immovable property in state, settling in state, Right to Scholarship and many such other Rights under State Government.

The Supreme Court was then held as final arbitrator for resolving disputes between State Government and Union Government. Under Article 352 of Indian Constitution, emergency against internal disturbance can be promulgated by the Union Government but only after consulting with State Government. However, only in case of External aggression and war, Union can declare emergency in the state but can never declare financial emergency under Article 360 of Indian Constitution.

Preamble and Article 3 of Constitution of Jammu and Kashmir clearly mentions that it is and it shall be an integral part of Union of India. Article 4 of the same State Constitution defines Territory of the state which includes POK (Pakistan Occupied Kashmir) and the so-called gifted area by Pakistan to China without any legal right. This provision is a real treasure and an answer to all the questions regarding sectoral division of the state of Jammu and Kashmir.

After studying all the relevant facts in this issue, it is quite clear that since beginning, India always tried to look after Kashmir’s all sort of problems with due care as India understands its social, geographical, cultural and political disputes and protects it from any kind of attacks from foreign bodies or state and non-state factors. As per calculations, Union government has spent a lot of money for the state’s progress, development and administration. Even at times India mostly focused on Jammu and Kashmir as compared to other states. These explanations are quite enough to come to the conclusion to take a wise decision.

Leave a Reply