Article 370 & 35A : History, Origin and Provisions

Kashmir – Article 370

A lot of talks are going on about the Article 370 that separates the state of Jammu & Kashmir from the Republic of India. Question is, do all of us know about the article in its entirety? It is perfectly okay to not know it, but not okay to stay ignorant on an issue that is shaking up the entire nation. We are trying to give you a compressed but wholesome view on it. But before we jump on the article we need to trace out Kashmir’s history which will bring us to the origin of art 370.

BRIEF HISTORY OF KASHMIR

The northernmost region of our country was a princely state and the last ruling king was Raja Hari Singh. The population of the state was an amalgamation of Hindus, Sikhs and Muslims. As the flag of the British Raj came down, princely states united to form the Republic of India, and Pakistan got two masses of land to form a new country. The Hindus, Sikhs and Buddhists of Jammu and Kashmir favored an accession to India, while the views of the Muslim population stood divided. Again, not happy with what they got, Pakistan always had their eyes Kashmir and repeated invasions and attacks had debilitated the kingdom. Maharaja sought help from Lord Mountbatten. On the advice on Lord Mountbatten, the Indian government attempted a plebiscite, but it couldn’t be carried out, due to objections from the Pakistani government questioning its legality. Thereafter, on October 26th Maharaja Hari Singh signed the Instrument of Accession to India, and it was accepted by Lord Mountbatten, the then Governor-General on October 27, thus making J&K a part of India.

ORIGIN OF ARTICLE 370

While J&K’s accession to India was a permanent deal and unquestionable, the introduction of Article 370 relegated the status of the state into a sore that has been bleeding eternally. Thinker and poet Maulana Hasrat Mohini was opposed to the Article, Dr. Ambedkar had refused to draft it, Patel has his misgivings, but Pt. Nehru summoned Gopalaswami Ayyangar to compile it anyway. Many hold the view that the article was brought in to pamper the ego of Sheikh Abdulla, who in turn was driven by his ambition of becoming the ruler of Independent Kashmir. Preceded by many debates and doubts, the article finally came into force in January 1950. On 14 May 1954, with the introduction of a similar article to the Constitution, the only densened the already grave situation further – Art 35A.

Though Nehru sold it as a temporary provision that would gradually be abrogated, it’s been 69 years and counting, and we still stay divided by it.

IMPLICATIONS OF ARTICLE 370 and 35A

It granted the state the right to its own constitution and the Indian Constitution didn’t apply to the residents of J&K.

In fact, J&K has its own flag and residents enjoy dual citizenship, one of India and one of the state.

The Center has very limited legislative powers over the state of J&K. It cannot impose financial emergency on it.

Most of the Indian laws, including, RTI, RTE, and CAG, do not apply to J&K.

The authority of the Indian Supreme Court can be easily defied by the state.

The Center heavily depended on the agreement of the state of J&K to exercise constitutional powers over the state. The state government could pull off from the agreement anytime it wished.

A resident of J&K losses his/her citizenship of the state if he/she marries an individual from Rest of India, however, if a resident of J&K marries a Pakistani national, the Pakistani national gains J&K citizenship, the resident gets to enjoy his/her dual citizenship as is.

Kashmir doesn’t have a panchayat.

While a resident of J&K is allowed full mobility anywhere in India and get a job and stay in any of the states, an Indian who is not from J&K cannot purchase land or establish a business in the state in concern.

These are just the highlights of the articles. These provisions in turn lead to numerous sub-implications, for instance –  insulting the national flag of India is not an offense – that further complicate the entire issue. Whether this article will ever be scraped off, will any government be intrepid enough to call for its abolishment, is open to debate, but all we can unanimously agree on is, the presence of Article 370 is coiling and exacerbating the situation at hand with every passing day.