Article 370: Why is Kashmir tense about it & what can India do

Centre’s move to revoke Article 370 will go down as one of the most significant initiatives to change a provision in our constitution- that was considered sacrosanct for a very longtime. Until today, Article 370 was considered to be the very thread that kept Jammu & Kashmir tied to India. But this was changed to some extent as Home Minister Amit Shah read out a Presidential notification on the future of J&K and moved a proposal to repeal Article 370.

Shah, read out a presidential notification that stated the decision to scrap the contentiousArticle 370 and to bifurcate the state into two Union territories – Jammu and Kashmir, which will have a legislature, and Ladakh, which will be without a legislature.

Giving a speech amid uproar by opposition members, he said,”I am presenting the resolution to revoke Article 370 in Jammu and Kashmir except the first clause 370 (1).” Home Minister Amit Shah in a statement last week had pointed that Article 370 was a ‘temporary provision’. Here’s why Article 370 is such a contentious issue at this moment.

What is Article 370?
Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir. Under Part
XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the state of Jammu & Kashmir has been accorded special status under Article 370. All the provisions of the Constitution which are applicable to other states are not applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for governor and prime minister in place of chief minister.

History of Article 370
The provision was drafted in 1947 by Sheikh Abdullah, who had by then been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru. Sheikh Abdullah had argued that Article 370 should not be placed under temporary provisions of the Constitution. He wanted ‘iron clad autonomy’ for the state, which Centre didn’t comply with.

Provisions of Article 370
According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir. Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare an emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request
or with the concurrence of the state government.

The validity of Article 370 has been questioned time and again. Can it be debated on the floor of the Parliament? Well, yes. Experts have said that it is temporary in nature and avenues to change it are yet to be explored by lawmakers. Constitution expert and former Secretary General of the Lok Sabha Subhash Kashyap, said this Article is not barred from a debate on the floor of the Parliament. “Article 370 under the Constitution has been ascribed as a temporary provision and not a special provision. There are provisions in the Constitution – temporary, transitional and special. Temporary is the weakest. The question is – how can be it ended and when shall be ended,” Kashyap told news agency IANS.

However, legal experts point out that removing Article 370 comes with riders. “There are practical problems in removing Article 370.
There are a number of presidential orders issued under Article 370 extending a number of statutes and other provisions applicable in other parts of the country to J & K. If 370 go without any alternative, it will create practical difficulties”, said Kumar Mihir, Advocate on Record in Supreme Court.


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