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Opinion

Indept analysis of Article 370 by a retired judge!!!

Article 370 of the Constitution of India has extended greater autonomy to the State of Jammu & Kashmir with minimal jurisdiction of the Union of India. The people of the State live under a separate set of Laws including those related to ownership of property, fundamental rights and administration of justice. The Right to Education is not applicable in the State where education is the prime need of the hour. Kashmiris, mostly illiterate, are not aware of the benefits available to them as citizen of India.

On 6th of October, 1947, some Muslim tribes supported by Pakistan Government invaded Kashmir with the sole intention of forcible accession of Jammu & Kashmir to Pakistan. The Ruler of the princely State, Maharaja Hari Singh, finding it a tough job to repulse the attack, immediately requested the Government of India for military help. Home Minister Patel, sensing the real danger ahead, immediately sent his trusted aide VP Menon to Srinagar to hold discussion with the Maharaja. Menon as instructed by his boss explained India’s policy of “Non-interference’. The Maharaja then decided to sign the instrument of accession with India which was accepted by the Governor General of India, Lord Mountbatten paving the way for military action against the illegal intruders. The capital city of Srinagar was saved but a portion of Kashmir remained under the occupation of Pakistan.

Sk. Abdullah, Prime minister of J&K, was kept in detention for his pro-Pak activities. Just after India’s military action, he was released from Jail by an order of the Maharaja. A shrewd politician Abdullah approached the Prime Minister Nehru and pleaded for more autonomy for the State. Nehru immediately agreed but Dr. Ambedkar, Principal drafter of the Constitution, had initially refused to draft Art. 370. With continued intervention of Nehru, Art. 370 was incorporated in the Constitution of India to grant special status to the State of Jammu & Kashmir. Empowered by Art.370, the Constituent Assembly adopted the Constitution of Jammu & Kashmir on 17th November,1956 which came into force with effect from 26th day of January,1957. Thus Jammu & Kashmir has become the only state to have a separate constitution within the Union of India. The State enjoys the maximum autonomy not available to other states.

Adoption of the State constitution is the corollary to Art.370 which extended greater autonomy to the State with minimal jurisdiction of Union of India. Emergency in case of breakdown of law and order machinery of the state can’t be declared by the Union Government without the consent of the State. The provisions of the Constitution of India in part IV (Directive principles) and IVA (Fundamental Duties) are not applicable in J&K. Right to Education is not available to the people of J&K where education is the prime need of the hour. Our Constitution has adopted the concept of single citizenship for the whole of the country while the state constitution defines one wonderful concept of permanent residency depriving people from other states of the country from acquiring properties in Kashmir. That is the moot cause of alienation of the Kashmiris. Judges of the Jammu & Kashmir High Court are appointed by the President of India in accordance with the procedure laid down by the Constitution. But the Judges are required to take oath to uphold the state constitution. The High Court has no power to declare any law passed by State Assembly as unconstitutional.

A question frequently arises in our mind as to whether Art.370 can be abrogated? Art.370(3) of the Constitution states that the President of India may declare that Art.370 shall cease to be operative but in doing so the recommendation of the Constituent Assembly of the State shall be necessary. At the moment the CA is defunct and there stands no alternative provision. This intentional or unintentional mistake on the part of the framers of the Constitution has put the Government in a tight corner with no easy solutions. Amendment of the Constitution will not be smooth sailing for the BJP Government. However, the Apex Court has the jurisdiction to intervene in the matter.


Sarat C.  Neog (Retd. District Judge)

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