Article 370 : A Diplomacy
Mohit Rathee, Advocate (P/3349/2014)
Nitu Kumari, Advocate (P/811/2015)
Punjab & Haryana High Court, Chandigarh
Date : 15/06/2020
Article 370 : A DiplomacyINTRODUCTION Bharat, incredible country has gone through many difficulties. When an organ was separated from Bharat in 1947, so many difficulties had been germinated. Why Maharaja of J&K had rejected the proposal of those so called person who considered themselves as representative of Bharat. In 1947 an agreement of accession was signed between Maharaja Hari Singh and so called Bharat representatives. Whether the kings of princely had been treated the same way as Maharaja Hari Singh? What were the compulsions that a temporary status had been given to J&K by incorporating Article 370? Whether that gross decision had been taken by few persons or it was decided by the whole country? Let's take a short trip to the golden valley "JAMMU & KASHMIR" by way of Article 370. HISTORICAL BACKGROUND: Prior to partition of 1947, India was divide in two different sets of geographical regions: British India and the princely states which of British India. These princely states were ruled by the Maharajas, princes, Nawabs etc. The states were not directly ruled or governed by the British and are allowed to decide upon the internal matters like Law and order, education etc. in return for which they each acknowledge the British paramountcy through individual treaties. The British gave an Indian state and its ruler protection from neighbours etc. In February, 1947 Government announced that independence would be given to British India, the plan to create two independent dominion son the basis of Hindu and Muslim majority. The policy was announced by the British Government with regard to Indian states. Political arrangements between the states on the one side and the British Crown and British India on the other were to be brought to end under that policy the rights surrendered by the states were to be reverted back when India and Pakistan were created and it will not affect the rights of the states and the princely states would become Independent. But this situation has created hue and cries as both the partitioned dominions were competing to absorb these states. Though these states have become Independent but a lot of chaos has been created that which princely state will belong to which dominion. In that crucial time, it was opined by V.P. Menon proposed that the princely states will hand over the three important functions: defence, communications and external affairs to the Central Government which were earlier exercised by the British Government. In 1947, when Pakistan had attacked J & K, Maharaja Hari Singh chose to accede J&K to India. In 1947, Maharaja Hari Singh signed the instrument of Accession on 26 October, acceding the 75% majority Muslim region to the Indian Union whereby only defence, communications and external affairs were surrendered to the Dominion of India. Then in October 1947, the then Prime Minister of India Pt. Jawaharlal Nehru made certain commitments in lieu of which Article 370 was added by which greater measure of autonomy was given to J & K and the power of Union is restricted in the state as the parliament would need the state government' concurrence for applying all other laws. The state of J& K was allowed to have its own separate flag. ARTICLE 370: The article was included in the Indian Constitution on October 17, 1949, and granted it a special status which allowed the state an exemption from the Constitution of India and permitted it to draft its own Constitution, granting it some autonomy. 370. Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything in this Constitution,
(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to-
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;
(c) the provisions of Article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause ( 1 ) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification.PROS & CONS OF INCORPORATING ARTICLE 370& 35-A: No doubt article 370 has been the most debatable topic since decades whereby special status has been assigned to the state of J&K. After applicability of Indian Constitution, in May 1954, Article 35-A was incorporated in Indian constitution by the virtue Presidential order. At that time Dr. Rajendra Prasad was the president of India. By virtue of Article 35-A special rights and privileges were accorded to the people of J&K, like it gives the J&K Legislature full Discretionary powers to decide who "permanent residents" of the state are, acquisition of immovable property in the state, employment under the state government, settlement in the state, right to scholarship. But there are certain cons which are very grave as it de-links the state of J&K from the rest of the country both financially and socially. It is a kind of threat or restriction upon the rights of the women residents of J&K as initially according to the constitution of J&Kthey were not allowed to marry the person of their choice, resident of some other state but after 2011 landmark judgement of the Apex Court J&K womens are entitled to get marry outside the state but the heirs of the said women will not be entitled to inherit the property of such women. The villages of J&K are still in developing condition and financial growth is also very slow as Article 35-A prohibits residents of other states to invest in the state. So the above said facts clearly shows that article 370 & 35A were never meant for the benefit of people of J&K. Because of crime and terrorist bustle most of population are living in the shadow of fear. AVOWEDLY Though some special privileges have been assigned to the people of J&K by virtue of Article 35-A for their betterment but in essence it had made their position worsen. Article 370 and Article 35-A was a black spot upon the Indian Constitution. Due to the dirty politics prevailing at that time, only J&K was treated in such a special manner, at the same time the other princely states were also not happy or willing to sign and join with the new born nation. This is the perfect example of the dirty politics that has been played in India since ages. Article 370 and Article 35-A is an assault on the soul of the Indian Constitution that has been provided in the "Article 1" which declares India as a union of states. Article 370 and 35-A proved to be a termite upon our nation and has made the country hollow like reservation which continues to degrade the nation's growth in every manner. Moreover we can say, Article 370 and 35-A has made J&K a step-son of India.
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