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In and Out Article 370 of Constitution of India
kartik mago 28 Feb 2019

In and Out Article 370 of Constitution of India

Jammu and Kashmir (J&K) has always been the most talked about state of India and due to article 370 of the constitution of India it has always enjoyed a special autonomy. Article 370 of the constitution came into the limelight again after state of Jammu and Kashmir agreed for the implementation of GST bill just after a week when GST bill came into existence. Even though everyone had doubt over review of Article 370,It has been ensured by Union Home Minister Rajnath Singh that the BJP led Centre would not do anything against the wishes of Kashmiris.

What is Article 370? 

Article 370 is basically a 'temporary provision' that gives special rights and autonomous status to the state of Jammu & Kashmir. Part XXI of the Constitution of India deals with "Temporary, Transitional and Special provisions of the Constitution", according to this part the state of Jammu & Kashmir has been given special status under Article 370. All those provisions of the Constitution which are applicable to other states of India are not applicable and relevant to state of J&K. For instance, till 1965, state of Jammu and Kashmir had a Sadr-e-Riyasat for governor and prime minister in place of chief minister. 

What is the History of Article 370?

The provision of article 370 was drafted in 1947 by Sheikh Abdullah and Sheikh Abdullahwas appointed as prime minister of Jammu & Kashmir by Maharaja Hari Singh and JawaharLal Nehru. He stated that Article 370 must not be placed under temporary provisions of the Constitution. He asked for 'iron clad autonomy' for the state, which was not acceptable for the centre. 

Merits and Demerits of Article 370

1. Power

Merit: State has the ultimate veto power

State of Jammu and Kashmir has its own sets of Fundamental rights and without taking permission of the state of J&K no law can be enforced by the Central Government. This means that the state enjoys a complete autonomy.

DemeritThe Indian government can interfere only in limited areas

 The government cannot interfere in anything any matter any issue excluding the areas of defence, communication and foreign affairs. The government cannot declare a national or financial emergency in the state unless there is internal disturbance.

2. Constitution and Flag

MeritKashmir has its own constitution and flag

Among all the states in India, Jammu and Kashmir is the only state to have its own constitution. Till 2002, Minimum of 29 amendments has been made to the constitution of J&K. In J&K the residual powers stays with the State government, not the Centre which is not the case in other states.

State of Jammu and Kashmir has its own red colour flag which has a story to it.21 people were martyred during the protest against the Dogra rulers in 1931. So the protestors raised the blood stained t-shirt of one of the victims as the new flag of Kashmir. The current flag of Kashmir is red in colour in memory of the martyrs and has 3 lines to represent Jammu, Kashmir and Ladakh. It also has a plough representing farmers.

DemeritNo Indian law or Supreme Court verdict is applicable in J&K

The biggest drawback is that even important and relevant laws are not applicable in the state of J&K. For example, Fundamental Duties and Fundamental Rights, Indian Penal Code and Right to Information do not apply to Jammu and Kashmir.

Due to the lack of Fundamental Rights, when something as basic as Right to Education is not available, it poses a grave threat to the quality of life in Jammu and Kashmir. Also, even though 20 % of the population belongs to the SC and ST category, the constitutional provisions that protect their interests haven’t reached them.

3. Citizenship

MeritPermanent residents of Kashmir enjoy dual citizenship.

The residents of state of J&K are citizens of India as well as Jammu and Kashmir. Thus, the permanent residents of J&K enjoy citizenship of J&K and India, but Indians can never be citizens of J&K.

DemeritThey can lose their citizenship by marrying a non-Kashmiris

According to the provision of Article 370, if a woman marries a man outside of J&K, she will lose her citizenship of J&K. But if she will get married to a Pakistani, she can retain her citizenship of Jammu & Kashmir. According to Article 370 if a Pakistan’s male citizen will marry a Kashmiri girl, he can have an Indian citizenship.

In the end, quite a lot of what’s happening in Kashmir can be ascribed to Article 370. However, since the state’s consensus is with Article 370, there seems to be no immediate threat to it

4. Privileges

Merit: Only permanent residents of J&K can buy land and immovable property

The laws relating to land is not emerge recently. Rather they existed until the Dogra reign when the sole purpose of enactment of laws was to keep the Britishers prevented from taking away their land. After having a great legal history, it was made compulsory for the temporary residents of the State to be banned from acquiring any immovable property in Jammu and Kashmir.

Demerit: Less infrastructural investment is acting as a hurdle to Kashmir’s development

The businessmen were not allowed to set up and make investments in industries as there were no opportunities for growth. This was the main reason for thousands of people sitting unemployed at that time. Due to unemployment, the economic situation of Kashmir almost became stagnant. The youth of Kashmir unwillingly indulge in unethical practices to earn bread. This truly is a threat to the future of Kashmir. Even, there are no proper health care facilities as the medical practitioners are forced not to set up any hospitals, clinics, etc there.

5. Anti-national

Merit: Insulting or burning the national flag is not a cognizable crime in Kashmir.

The State flag was adopted on June 7, 1952. The J&K Prevention of Insult to State Flag Act, 1979 prevents any disrespect to the State flag. Under the Act, it is an offence to “bring into contempt” the State flag.

Demerit: This probably makes Kashmir a safe haven for all the anti-national elements under this article

There is lack of checking mechanisms which would ensure respect for the nation. This is the reason why it has been isolated. The valuable (to the State) youth are being taken up into insurgency and militancy. They are there made subject to being brainwashed into stone pelting. The consideration they are offered is payment of money. They are paid for carrying out the immoral acts.

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