Shahid Majeed Mir

Article 370- a bridge between India and the state of J&K

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The legality of Article 370 has been settled by Supreme Court in ‘Sampat Prakesh Case’ in 1969 by holding it as ‘permanent provision’ of constitution enshrined by Constituent Assembly.

Lok Sabha elections are underway in India. The incumbent BJP as well as other parties including the grand old party of India- Congress- are putting all efforts in campaigning these days. The war of words and the intensified uproar over security matters have left the atmosphere fully charged. It is evidence that BJP is, once again, banking on the deeply embedded conservative stance of National Security and National Unity- a narrative that was further strengthened by the Pulwama Attack in the state of Jammu and Kashmir and the subsequent developments including the airstrikes etc.

A cursory look at the Manifesto issued by BJP reveals that the party has laid great emphasis on the abrogation of Article 370 and 35-A that grant special constitutional status to the erstwhile Princely state of Jammu and Kashmir.

In its original form Article 370 restricts centre’s say over matters except in case of foreign affairs, defence and communication and thus ensured internal autonomy for the state on the premises of conditional merger with Indian union. It was due to this article that the state of Jammu and Kashmir had the nomenclature of a prime minister as well as president. However constant and gradual erosion to the article 370 led to more and more control of centre over various other affairs that were originally left with the state to handle and as a result this article remained a mere shadow of itself.

However, a renewed attack is being launched to abrogate article 370 and 35-A as various petitions are being filed in this regard in the Supreme Court of India that challenge the legality of them and want to remove them forever. The intensity with which the ruling BJP is pursuing the abrogation of the said articles is alarming as the party has publically announced the same in its manifesto and many of its prominent leaders are seeking public support in the LS elections on this very slogan.

Article 35-A has also come under scathing attack from various quarters in past five years and BJP has also been advocating its abrogation on a large scale. Pertinent to mention that article 35-A gives exclusive powers to the State Legislative Assembly to define the Permanent Residents of state and grant them the required benefits in Scholarship, employment, immovable property and other public aid and welfare in the state. The challenge on behalf of its induction without formal amendment irrespective of clause (I) of Article 370 entrusting powers to make exceptions and modifications in respect of J&K has also become a bone of contention. But exceptions can’t be weighed against arguments grounded in formal articles of constitution. Just as the President’s Rule is exception which brings state completely under Central control without formal amendments.

Moreover, the legality of this Article has been settled by Supreme Court in Sampat Prakesh Case in 1969 by holding it permanent provision of constitution enshrined by Constituent Assembly. Therefore the oft repeated argument of experts and legal luminaries like Subramaniam Swamy, that it was meant for temporary stability of state in wake of derailing security situation, is misleading. Indian polity must understand that Article 370 isn’t any favour or sine qua non but the promise and agreement between highest officials of the then princely state of Jammu and Kashmir and state of India.

The essence of the Article cannot be measured in comparison with other states but in the preview of the historical context which compelled J L Nehru to insert such exceptions in the constitution. Nowhere does the Article mention its being of a temporary status nor does any other article in the constitution say so. The Honourable High court of J&K, in 2015, repeated and reaffirmed the stand of SC and held that “Article 370 is a permanent feature of constitution”.

The entire relationship of the state of Jammu and Kashmir with the union of India is governed by Article 370 which was later modified to extend the jurisdiction of CAG, SC, EC etc to the State subsequently. Now, if the Article is altogether abrogated the only relationship between India and the state of Jammu and Kashmir is the Instrument of Accession.  Will BJP accept that?

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