1

ARTICLE 370 OF THE CONSTITUTION OF INDIA:

NEED PARLIAMENTARY DEBATE

TEMPORARY PROVISIONS WITH RESPECT TO THE STATE OF JAMMU

AND KASHMIR.1

This Article [ARTICLE 370 of Indian Constitution] has been described as

a `temporary provision’ in the Constitution. The temporary nature of this
Article arises merely because the power to finalize the constitutional
relationship between the State and the Union of India had been specifically
vested in the Jammu & Kashmir Constituent Assembly. The Constitution of
India clearly envisaged the convening of Constituent Assembly for Jammu &
Kashmir State and also provides that whatever modification, amendments or
exceptions that might become necessary either to Art. 370 or to any other
Articles in the Constitution of India in their application to the Jammu &
Kashmir State were subject to the decision of the Assembly. Therefore, the
`temporary’ provision does not mean that the Article is capable of being
abrogated, modified or replaced unilaterally. `I will like to make it clear’
declared Sheikh Abdullah in the J&K Constituent Assembly, `that any
suggestion of altering arbitrarily the basis of our relationship with India would
not only constitute a breach of the spirit and the letter of the Constitution, but
it may invite serious consequences for a harmonious association of our State
with India’. In the present context, the term `temporary’ has been used to
minimize the difficulty in the way of the amendment of the Constitution of
India, whenever the necessity arises to abrogate, modify or extend the scope of
Art. 370 by agreement.

Article 370 is a self-applying Article and applies `ex proprio vigore’

without having to depend on any other Article of the Constitution of India for
its enforceability. Moreover, cl.3 of the Constitution (Application to J&K) Order,
1950 applied Art. 1 and Art. 370 to the State of J&K itself.

Once Art. 370 became applicable and enforceable, there was no question
of its having ceased to apply only because Art. 394 was subsequently deleted.
The provision of the Article continued to remain in force and effective even after
the Constituent Assembly at the State enacted the Constitution of the State.

Peculiar position of the State

1
Commentary On the Constitution of India, Eighth Edition, Volume 10 2012
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The State of Jammu & Kashmir holds a peculiar position under the
Constitution of India.

It forms a part of the `territory of India’ as defined in Art.1 of the

Constitution, being the fifteenth State included in the First Schedule of the
Constitution, as it stands amended. In the original Constitution, Jammu &
Kashmir was specified as a `Part B’ State. The States Reorganisation Act,
1956, abolished the category of Part B States and the Constitution (7th
Amendment) Act, 1956, which implemented the changes introduced by the
former Act, included Jammu & Kashmir in the list of the `States’ of the Union
of India, all of which were now included in one category.

Nevertheless, the special Constitutional position which Jammu &

Kashmir enjoyed under original Constitution has been maintained, so that all
the provisions of the Constitution of India relating to the States in the first
schedule are not applicable in the Jammu & Kashmir, even though it is one of
the State specified in that schedule.

Sri N. Gopalaswami Iyengar stated that the conditions in Jammu &

Kashmir were special and required special treatment. According to him the
special conditions were (I) there had been a war going within the limits of the
State (II) there was a ceasefire agreed to at the begging of the year and the
ceasefire was still on (III) the conditions in the State were still unusual and
abnormal had not settled down (IV) a part of the State was still in the hands of
rebels and enemies (V) our country was entangled with the U.N. with regard to
Jammu & Kashmir and it was not possible to say when we would be free from
their entanglement (VI) the Government of India had committed themselves to
the people of Kashmir in certain respect (VII) the will of the people expressed
through the instrument of a Constituent Assembly and would determine the
Constitution of the State as well as the sphere of the Union jurisdiction of the
State.

WHY SHOULD A STATE OF THE INDIAN UNION HAVE A SPECIAL STATUS?

IT CONVEYS A WRONG SIGNAL NOT ONLY TO KASHMIRIS BUT ALSO TO
THE SEPARATISTS, PAKISTAN AND INDEED THE INTERNATIONAL
COMMUNITY THAT J&K IS STILL TO BECOME INTEGRAL PART OF INDIA,
THE SOONER ARTICLE 370 IS DONE AWAY IS BETTER?2

2
http://www.indiandefencereview.com/news/article-370-the-untold-story/
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It is often forgotten that J&K state is not a homogeneous entity. Apart from
Valley Muslims, Jammu has a predominantly Hindu population while Ladakh
has a mix of Buddhist and Muslims. Then you have the Gujjars & Bakarwals.
Why is Article 370 detrimental to the full integration of J&K state into Indian
Union. Firstly the Central Govt can make laws only with concurrence of the
State govt, practically giving it the Veto power. Article 352 and 360 for
declaration of national and financial emergency respectively cannot be applied
in Kashmir. While a citizen of India has only Indian citizenship, J&K citizens
have two citizenships. Anti Defection Law is not applicable to J&K. No outsider
can buy property in J&K state.
The beneficial laws such as Wealth Tax, Gift Tax & Urban Land Ceiling Act and
intermarriage with other Indian nationals do not operate in J&K State. Even
Article 356 under which President of India can impose his rule in any state
cannot be enforced in J&K without consent of the Governor who himself is an
appointee of the President. State of J&K can refuse building of any cantonment
on any site or refuse to allot land for defence purposes.
Article 370, included in the Constitution on a temporary provision should have
been gradually abrogated. This has not happened in sixty years. In fact
whenever someone mentions this, vested interests raise an outcry that
legitimate rights of Kashmiris are being trampled upon. Stated agenda of
National Conference is return to pre 1953 status. Why should a state of Indian
Union have a special status? It conveys a wrong signal not only to Kashmiris
but also to the separatists, Pakistan and indeed the international community
that J&K is still to become integral part of India, the sooner Article 370 is done
away is better.

ARTICLE 370 OF THE INDIAN CONSTITUTION: AN IMPEDIMENT IN THE

DEVELOPMENT OF JAMMU AND KASHMIR.

Prime Minister Narendra Modi, during his December rally last year, had
suggested for discussion and seminars across the state to analyse merits and
demerits of Article 370. Modi, at rally in December last year, called for a debate
on the issue. "As per the Constitution, the debate will go on whether Article
370 will end or continue. At least, there should be a debate on whether Article
370 has benefited J&K or not".

Soon after, Arun Jaitley, now Finance and Defence minister, had said:
"Integration of J&K is an essential part of the ideology of the BJP. Separate
status has led towards separatism and not integration."

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EFFECT OF ARTICLE 370 IN THE SOCIAL,CULTURAL AND

ECONOMIC LIFE OK KASHMIRIS

 There is only one system of citizenship for the people of the country but
in case of Jammu and Kashmir, it is dual citizenship, one of the state
and the other of India.
 The citizens of Jammu and Kashmir are citizens of India but the citizens
of the rest of India cannot be citizens of Jammu and Kashmir. They do
not have the right to property and the right to vote in Jammu and
Kashmir. If a girl belonging to Jammu and Kashmir marries a boy from
outside the State, who is not a State subject, she loses all her rights in
the State.
 Even the wealth tax cannot be imposed in the State. The Urban Land
Act, 1976, which is in force in the entire country, is not applicable to
Jammu and Kashmir. The result of it is that rich landlords, belonging to
the majority community in the Valley, indulge in economic exploitation of
the poor and the Indian citizens, who are non-State subjects and live in
the valley as they cannot even secure loans from the financial
institutions.
 The presence of Article 370 has inevitably created psychological barrier
between people of India and People of Jammu and Kashmir. We are still
haunted by the ghosts of the two nation theory by the mere presence of
special status to the State in the form of Article 370.
 As Jammu and Kashmir RTI act does not provide appointment of
Information Commission, the complainant is not only deprived of any
guidance about the procedure of filing a complaint, there is also no
compulsion on public authority to supply the information sought.
However, autonomy would be justified only if it can make better laws and
prevent imposition of unjust laws and decisions of the Centre on it.
Nevertheless, as far as Right to Information Act of the State is concerned,
it is in every sense much worse and regressive than the central act and is
thus clearly misuse of the powers that the state enjoys under the cover of
autonomy.
 Autonomy is supposed to safeguard the interests of the people of the
State and not of its rulers. Good governance has proved to be a mirage
for the people of State of Jammu and Kashmir as the veil cannot be lifted
by its own people. It reflects the feudalistic mindset of the rulers of
Jammu and Kashmir. Absence of accountability amounts to anarchy and
lawlessness.

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 Centralized welfare schemes and constitutional safeguards meant for the

deprived have not reached to the people of Jammu and Kashmir. There is
an urgent need to carry out a detailed research on the status of the
deprived section in Jammu and Kashmir. Women, scheduled caste and
scheduled tribes constitute the vulnerable group in Indian societies.
Evidently, the social cost of Article 370 has been huge. The weaker and
vulnerable section has been rendered voiceless by the virtue of Article
370. I would touch upon the status of welfare mechanism available for
the vulnerable section in the absence of uniform national supervision
and constitutional safeguards.

 It has been widely reported that “because of Article 370, Jammu and
Kashmir does not have industries and progressive measures like Mandal
report on backward classes cannot be implemented”.

 The foundation of decentralized governance is found in 73rd and 74th

Constitutional amendment act. The Local self-government phenomenon
was manifested in these constitutional amendments. This is not
applicable to the State. The State is at full liberty to frame guidelines
governing the nuances of local self-governments. It displays a serious
lapse on the part of the State government.

 Our Constitution has recognized the plight of weaker segments in the

society by empowering them. Scheduled castes have been socially,
culturally and historically been deprived of a dignified existence in the
Indian society. Scheduled tribes people have stayed away from the
geographical mainstream. Unthinkable level of discrimination has been
done to these classes. Acknowledging this, Our Constitution makers, Dr.
Ambedkar in particular ensured that for creation of an equitable society,
a level playing field is imperative and included policies of affirmative
action in the Constitution.

 It is pertinent to mention here that the above stated data clearly shows a
substantial presence of SC’s and ST’s in Jammu and Kashmir. They
together form almost 18% of the population.
Article 370 has devoid the present group of Scheduled caste and
Scheduled tribes from direct central assistance and Constitutional
safeguards. No justification can substantiate the deprivation of our
brethren in the state of Jammu and Kashmir. Together both the group
constitutes 20% of the state population.

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 The Separatist argument of distinctness has caused dearly to the interest

of the marginalized in the State. Article 335 of the Constitution
exclusively dealing with providing reservation to Scheduled caste and
Scheduled tribes in Services have yet not been made applicable to the
State of Jammu and Kashmir.

 To meet the Provision of Article 16(1) of the Constitution “There shall be

equality of opportunity for all citizens in matter relating to employment
or appointment to any office under the State”, the State government has
miserably failed. Another point, which is imperative to mention here, is
that whereas rules for reservation in recruitment and promotion for
Scheduled Caste and Scheduled tribe candidates were made effective
w.e.f 21-09-1947 in India, these rules came into existence from April
1970 in Jammu and Kashmir. The most unfortunate part connected to
this executive order was that it covered affirmative action only for
Scheduled Caste and not Scheduled Tribes candidates. The %age of
reservation for Scheduled Caste in State cadre post were worked out on
the basis of Census report of 1961 and no efforts to revise it has been
undertaken thereafter.

 The Constitutional empowerments of Panchaayat are found in 73rd and

74th Constitutional amendment act, which are not applicable to the state
of Jammu and Kashmir by the virtue of Article 370. India lives in its
villages. We have been a village centric nation. Mahatma Gandhi
envisioned an equitable society on the touchstone of self-sufficient
villages. The Non-compliance of the said amendments clearly reflects the
political conviction of the provincial government to empower grass root
governance. It is hard to imagine an inclusive society by excluding
Panchayats and other decentralized organs of governance.

 They constitute 11 % of the population. That is a substantial number

that can hardly be ignored. Despite being geographically handicapped
and suffering locational disadvantages since a long period, no protective
measure has been undertaken by the state government to safeguard
their interest. The position in the rest of the nation is much better for
them as in the state. They have been accorded 7.5% reservation in
opportunities of education and employment apart from requisite political
representation. A good amount of bureaucrats belongs to this category
that is responsibly and dutifully running our nation. Efforts for
mainstreaming the tribal people are not encouraged by the State
government. Recently, a private member bill seeking political reservation
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for communities from scheduled tribes was vociferously rejected by the

voice votes in the State assembly.

 Social Justice is the cornerstone of a Constitutional democracy. It is

unfortunate on the part of our leaders and policy makers in the rest of
India who have failed to acknowledge the plight of the deprived section in
the state of Jammu and Kashmir. Injustice and exploitation would be
understatement with respect to the status of vulnerable in the state. The
much-hyped Interlocutor report also failed to realize the needs and
demands of the marginalized in the State.

 There is an urgent need to revisit the present minimal policies of

affirmative action in the State of Jammu and Kashmir. The Provincial
government is not being accommodative in its endeavours. India as a
nation is committed to the values of social justice.

FROM the above discussion it would be clear that Article 370 of the
Constitution of India is simply making Jammu and Kashmir more backward
and this particular article of the Constitution is also responsible for the
problems in the valley. Since independence particularly after our Constitution
came into force, Kashmir is enjoying special status and practically it is enjoying
status of separate country and it is dangerous for the sovereignty and integrity
of India. Bharatia Janata Party from the very beginning of its formation is
opposing the said Article but other political parties are opposing it for the
reason best known to them. "As per the Constitution, the debate will go on
whether Article 370 will end or continue. At least, there should be a debate on
whether Article 370 has benefited J&K or not".3

MISUSE AND ABUSE OF ARTICLE 370 OF CONSTITUTION OF INDIA:

Vipul Kaul4, a 13-year-old son of a Class IV employee in Jammu and Kashmir's

Public Works Department suffers from multiple diseases and is alive thanks to
drugs that are costing his family a fortune. In 2001, Vipul's family had
petitioned the J&K government for aid and a sum of Rs 20 Lakh was assured to
them. But when the government changed, the aid stopped. The Home Ministry
then intervened and advised the state to continue the aid. But all they got was
a letter dated July 24, 2007 stating, “Under Article 370, the state of Jammu
and Kashmir is under no obligation to oblige the home ministry’s instructions.”
Vipul's is not a isolated case of abuse of Article 370. Since our Independence in

3
http://www.firstpost.com/politics/article-370-row-kashmir-is-not-omars-parental-estate-says-rss-
1545919.html?utm_source=ref_article
4
http://kashmiris-in-exile.blogspot.in/2007/10/healing-touch-or-killing-touch.html
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1947, Article 370 has been misused and abused repeatedly to cater to selfish
motives that are against national interests.

Focusing on the abuse and conscious misuse of Article 370 tells us that 6
entries of 99 provisions of union list and 21 entries from 52 entries of
concurrent list are still excluded for J&K. J&K has a separate text for oath. The
tenure of the state assembly is six years. There is no mention of the words of
secularism and socialism in preamble of constitution of J&K. Prevention of
corruption act of 1988, Indian Penal code, Domestic Violence Act, Religious
institutions (prevention of misuse) act of 1988, Forests Rights Act, Protection of
Wild Animals Act and the Urban land ceiling acts do not apply to J&K. CBI has
limited jurisdiction in J&K meaning that if the CBI wants to exercise powers
and the jurisdiction in any FIR registered in J&K State, then it needs the
consent of the J&K Govt or the High Court. The Supreme court has only
appellant jurisdiction here as it is not vested with the jurisdiction of a Federal
Court and can only hear cases on appeal.

Further examining if indeed Article 370 has been beneficial to the people of the
state themselves, proves that they have been mislead and misinformed. As the
People representation act does not apply to the state, the center has no power
to enforce delimitation of the constituencies in the state. In 2002 except for
J&K delimitation was done in the whole country. The Article 370 has also been
misused to further interests of select regions. Even though Jammu has more
population, has a larger area and more voters, Kashmir has more assembly
seats. While Kashmir has 47 assembly seats, Jammu has only 37. If proper
delimitation takes place Jammu should have 48-50 seats and Kashmir would
have 35-36 seats. There is no record of the number of OBC's in the state.
Mandal commission report has not been implemented and hence the backward
classes here have no reservations in various fields. Deprived sections of the
society like SC/STs did not have any reservation in J&K till 1991. Though in
1991 they were provided reservation in employment and education they still do
not have any representation in politics and in the state assembly. Its surprising
that the Dalit and 'Bahujan Samaj' leaders have been silent on this. The State
government also refused to enact laws that would give effect to the 73rd
(provisions for Panchyat Raj, 1993) and 74th (provisions for Local
Administrative bodies, 1993) Amendments in J&K and hence there is no
devolution of powers or democratic decentralization at grassroots. Elections in
the Panchayats are being held under the archaic Jammu & Kashmir
Panchayati Raj Act, 1989. RTI act of J&K and its amendments are not on par
with that of the central government. The J&K Right to Information Act vests

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more powers in the State government than provided in the Central Act. Its
worth noting that the per-capita subsidy provided to J&K is 16 times more
than West Bengal and 12 times more than Bihar. Allocation of financial
resources for the Kashmir valley, varies between 65-69 percent, whereas both
Jammu and Ladakh divisions put together get about 31-35 percent. J&K also
gets special employment packages and prime ministers packages regularly but
there is no accountability as none of these information is made public or is
available under J&K's RTI Act.

Those who speak for continuation of Article 370 and the separatists make no
mention of the minority Sikhs and Hindus who migrated to J&K in 1947 from
West Pakistan. These minorities are not considered as citizens of Jammu and
Kashmir under Article 6 of the state's Constitution as they came from outside
of undivided Jammu and Kashmir. Contrast this with the rights guaranteed
under the Jammu and Kashmir Resettlement Act, 1982 for those who had
willingly left undivided Kashmir for Pakistan during partition. Such people can
still come back and claim their properties or suitable compensation in J&K as
per this act. The same J&K government refuses to accommodate the refugees
staying in tents for 65 years, who are legitimately the citizens of India! The logic
that granting of J&K citizenship to the West-Pak refugees, whose population
currently is about 2,50,000, will change the demographic character of Jammu
and Kashmir is absurd. J&K has more than 10 million people according to
2001 census and making an exception for those who came in 1947 i.e. before
the drafting and adoption of the Constitution of J&K cannot change the
demographic character of the State. Similar fraud has been committed with the
Valmiki samaj from Punjab. About 150 families from the Valmiki Samaj were
brought in 1956 for town municipal and cleaning works with the assurance of
granting state subject-ship. But the state subject-ship was eventually provided
to only those who were in the post of 'Bhangi's/Sweeper's. Presently there are
approximately 600 Valmiki families in the state but even to this day their
residential colonies have not been regularized by the government of J&K. In the
debate over Kashmir imbroglio, the denial of rights to the Sikh and Hindu
minorities has been consistently ignored. It is considered “politically incorrect”
in the context of protecting “uniqueness” of J&K. Even the interlocutors report
of the Government of India failed to raise the issue of State subject-ship of
these minority Sikhs and Hindus in J&K. International human rights law
unequivocally prohibits citizenship based on “jus sanguine” i.e. based on the
nationality of their parents instead of where they are born. A number of
countries including Germany, Japan and Cambodia were censured by the UN
Human Rights Committee and UN Committee on the Elimination of Racial
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Discrimination for practicing citizenship based on “jus sanguine”. Most

countries have made suitable changes to their citizenship laws.

We regularly witness the champions of human rights going over the board
when it concerns custodial deaths or illegal encounters in select cases in the
country. But the same bunch of HR activists have been silent on the fact that
the 'Protection of Human Rights Act, 1993' is not applicable to J&K. Even the
J&K Human Rights Protection Act of 1997 was amended in 2002 to take away
the powers of the State Human Rights Commission to hire its technical staff.
Several cases of genuine Human rights abuses committed in J&K are away
from scrutiny. In one such case, Mohan Lal, a resident of Punjab was picked
up from Amritsar in 2003. He was inhumanely tortured and eventually
breathed his last. When the National Human Rights Commission(NHRC) tried
to intervene, the J&K State government sought immunity in the case by
quoting Article 370. Though the NHRC set aside the immunity claimed by J&K
government, the incident is of deep concern and is yet another example of
abuse of Article 370.

Anti-defection law for anti-party activities where a member could be expelled is

also diluted in J&K as the decision lies in the hands of the legislative party
leader and not in the hands on the speaker. Article 361A which provides
immunity and protects freedom of press to cover legislative assembly
proceedings is also not extended to J&K state. While the ministers quota for
various opportunities in education, employment, etc. is 15% elsewhere in the
country, it is 30% in J&K. Who other than those select few ruling the state for
65 years can benefit from continuation of such laws?

All the examples above prove that the Article 370 makes a complete mockery of
ideas of democracy and notions of international law regarding citizenship. It
reduces a substantial section of Indian people in state to the status of second
rate and non-citizens of one state. Going back to the case of Vipul Kaul, any
iota of hope for the Kaul family was cut short and stifled by the callous
response from the then Chief Minister Ghulam Nabi Azad's secretary who said,
"The government of Jammu and Kashmir is not bound to obey the orders of the
Home Department of India due to Article 370 which gives special status to the
state. Hence your child's medical case cannot be settled.'' The apathy of the
J&K state government has put the life of a hapless 13-year-old boy at risk.

Constitution does not decide the territory but its the people of India who create
the constitution. Hence it is of paramount importance that temporary
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provisions made to mitigate a volatile situation must not legalize discrimination

as has been done in J&K by using Article 370 as a tool. Jammu and Kashmir is
a part of India due to accession and not Article 370. Essential feature of Article
370 is the necessity of concurrence of the state government and not of the
constituent assembly for any amendments. Article 370 gives constitutional
powers to president to make amends without going to the parliament. Article
368 gives the power to the Parliament to amend the Constitution and
procedures with an additional provision in Article 370 (1)(b) and Article 370 (3).
But for last 60 years, the procedure has not been laid for bringing about the
concurrence of the J&K state government on this. It should be noted that
J&K's own constitution in Part II categorically states that “The State of Jammu
and Kashmir is and shall be an integral part of the Union of India”. It is the will
in Delhi that is lacking in bringing about the change.

Vipul's mother, Usha Kaul was very scared. She feared that if he isn't given
medicines, his life would be in danger. So is in danger the nation and the 'basic
structure' of its constitution. To have a healthy nation, each state including
J&K needs to be completely a part and parcel of the national mainstream. For
this to happen and to rectify the state of affairs in J&K, it needs a medicine.
That medicine is abrogation of Article 370.

It’s the need of the hour to call for a debate whether Article 370 will end or
continue. At least, there should be a debate on whether Article 370 has
benefited J&K or not.

DEBATE ON “WHETHER ARTICLE 370 WILL END OR CONTINUE”

Prime Minister Narendra Modi’s December 1 call at the historic “Lalkaar Rally” in
Jammu for a holistic debate on Article 370 has triggered a fierce debate in the
State and in the national capital as well. Under Article 370 the solitary State of
Jammu & Kashmir enjoys a status different from other States of the Union of
India. The Kashmir-based parties and parties like the Congress, the JDU, the
CPI-M, the CPI and the SP say this Article must be retained as it protects the
distinct identity of Kashmiris and is beneficial for the State.

They are also saying that Article 370 cannot be abrogated. The Kashmir-based
parties also claim that revocation of this Article would end the accession of
Jammu & Kashmir with India. They are saying that Article 370 is a “bridge”.
Nobody who believes in the unity and integrity of India and vouches for secular
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and democratic values and the principles of equality would ever endorse the
views of the protagonists of Article 370.

On the other hand, the critics of the Article, including the RSS, BJP, BSP, Panun
Kashmir, JKNPP, JSM, Shiv Sena, besides a number of smaller political groups,
have been saying that Article 370 has only promoted communalism and
separatism in the Valley, promoted politics of regional discrimination and
jeopardized the fundamental rights of the minority communities and various
other social segments in the State. Their argument is that if the people of the
State are to enjoy all the rights guaranteed by the Indian Constitution and lead a
dignified life and maintain unity and integrity of India, this Article has to go.

It is obvious that the supporters and critics of Article 370 will train their guns at
each other and do their best to prove their point. In fact, the BJP has already
challenged Chief Minister Omar Abdullah to join the debate and the latter has
accepted it and said he is prepared to go even to Ahmedabad - a suggestion the
BJP rejected the other day saying that BJP leaders who are quite competent to
discuss the issue are available in Jammu itself. But after that no communication
was made from the part of Omar Abdullah

Now that Article 370 has become a subject of fierce debate, it is time for the
supporters of Article 370 to answer the following questions in order to convince
their critics that this Article is not discriminatory.

1] Is it not a fact that Article 306-A (370) is a temporary provision and was
adopted in October 1947 much against the wishes of an overwhelming majority of
the people of the State in general and Jammu and Ladakh in particular?

2] Is it not a fact that that Article 370 grants a special status to the State on
purely communal grounds and empowers the solitary state in the Union to have
the right to have a separate constitution and separate flag and exercise residuary
powers?

3] Is it not a fact that Article 370 has created a republic within the Indian
Republic and created an impression across the world that Jammu & Kashmir is a
disputed issue that is still to be settled?

4] Is it not a fact that no Central law can be introduced in the State and
jurisdiction of no Central institution can be extended to the State without the
concurrence of the Jammu & Kashmir Government, despite the fact that Jammu

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& Kashmir lawmakers play the same role in Parliament that their counterparts
from other States play when legislations are discussed and adopted?

5] Is it fair to participate in the law-making processes in Parliament and then

oppose their extension to Jammu & Kashmir?

6] Is it not a fact that Article 370 makes invidious, humiliating and unjust
distinctions between men and women of the State and that it has everything to do
with the rights of State Subjects or with property and residency rights?

7] Is it not a fact that the archaic State Subject laws, which were enacted by
Maharaja Hari Singh way back in 1927, form part of the Jammu & Kashmir
Constitution?

8] Is it not a fact that it is because Article 370 under which the State has a
separate Constitution that the refugees from West Pakistan, mostly Dalits, do not
enjoy citizenship rights which are available to the so-called Permanent Residents
of the State?

9] Is it not a fact that in 2004 and 2005, the Jammu & Kashmir High Court
directed the State Government not to make any endorsement of “Valid Till
Marriage” on the State Subject certificates to be issued to unmarried daughters of
State Subjects to ensure gender equality in the State?

10] Is it not a fact that the children of the daughters of Jammu & Kashmir
married outside the State to non-State subjects do not enjoy citizenship rights in
the State? Is this not discrimination of the worst form?

11] Is it not a fact that the rights which are available to the Scheduled Castes,
Scheduled Tribes, Other Backward Classes and minorities across the nation are
not available to their counterparts in Jammu & Kashmir?

12] Is it not mandatory to constitute a Delimitation Commission to de-limit the

Assembly and Lok Sabha constituencies after every Census?

13] Is it not a fact that the Jammu & Kashmir Government banned delimitation
of the constituencies for at least four decades by amending the Representation of
People’s Act in February 2002? And is it not a fact that the State Government
could do so by misusing Article 370?

14] Is it not a fact that the Lok Sabha and Assembly constituencies across the
nation, barring Jammu & Kashmir, were delimited after 2002?
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15] Is it not a fact that the people of Jammu & Kashmir have all rights, including
the right to own immovable property, all over India and the people of other States
do not have similar rights in the State?

16] Is it not a fact that the Jammu & Kashmir is out of the ambit of the Minorities
Commission of India?

17] Is it not a fact that an overwhelming majority of population in Jammu

province and Ladakh region, who constitute half of the State’s population and
occupy more than 88 per cent of the state’s land area, is bitterly opposed to
Article 370 and wants complete integration into India?

18] Is it not a fact that the internally-displaced Kashmiri Hindus are vehemently
opposed to this Article and want bifurcation of the Kashmir Valley so that a
separate homeland is established for them with Union Territory status?

19] Is it not a fact that it is because of Article 370 that Gujjars and Bakerwals,
who constitute the third largest social group after the Kashmiris and Dogras, have
failed to get political reservation?

20] Is it not a fact that it is because of Article 370 and separate Constitution that
the Centrally-sponsored schemes meant for the minorities, the Scheduled Castes
and so on are not applicable to the State?

21] Is it not a fact that it is because of Article 370 that the 73rd and 74th
constitutional amendments which empowered the grassroots level institutions,
including Panchayats, Corporations and Municipalities are not applicable to
Jammu & Kashmir?

These are only 21 questions which establish that Article 370 is not just
discriminatory but anti-people and anti-democratic. There are several other
similar questions. It is hoped that the supporters of Article 370 would answer
these simple and straight questions to help clinch the whole issue through
discussion and debate.

CONCLUSION
There has been a school of thought that has evolved an approach that attaches
paramount significance to constitution and legal bonds and satisfaction of

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aspirations of the local people. The movement for full application of the Indian
Constitution to the state has gained significant momentum in Jammu and the
rest of nation. By now, it has been established that no provision in the Indian
Constitution has been subjected to such heated controversy within states and
India as Article 370. The passion aroused for and against the present issue is
responsible for disrupting the emotional unity of the state. The loss caused by
Article 370 has been huge. Governance and administration has failed in
maintaining the requisite level of law and order in the state of Jammu and
Kashmir. With the non-applicability of centralized acts, corruption has been
rampant in the state. Militancy and sectarian violence has together amounted
to plethora of deaths and human rights abuses. The time has come to rethink
on the continuation of Article 370.

Article 370 is part of the Indian Constitution and the Parliament being the
highest legislative body in the country has the power to amend it. Using Article
368, it can amend or repeal any of the provisions of Indian Constitution. Even
the President of India can amend or abrogate Article 370. The only condition is
that the Union Cabinet has to send a proposal to this effect to him. It is
important to note that the President of India can keep Jammu & Kashmir
under his direct rule for any number of years by invoking Article 370, as it
gives absolute executive powers to the constitutional head. Take for example,
the Governor/President rule in the State between January 19, 1990 and
October 9, 1996. Jammu & Kashmir was under the President rule for almost
seven years without amending the Indian Constitution even once because
Article 356 is not applicable to this State. The case of Jammu & Kashmir was
not taken to the Parliament even once during this period. Congress always
bypassed it for their vote bank politics and Narendra Modi, Prime Minister if
India is the first person to call for a parliamentary debate on Article 370 of the
Constitution of India. Narendra Modi said5, “If we do not have debate and
discussion how would you be able to tell those who have been unable to
understand what they have been deprived of on account of Article 370.” His
(Modi’s) intention and that of the Government is that we have a debate so that
we can convince the unconvinced about the disadvantages of Article 370. On
May 76, the day Omar Abdullah gave an interview to The Hindu and the subject
was the same: Article 370 and implications of its abrogation. There was
absolutely nothing that was new in the interview that he gave. It was just a
reiteration of his old irritating and untenable stand. It is a different story that
his interviewer, who was obviously blissfully ignorant about the history of
Article 370 and the hostile attitude of the people Jammu province and Ladakh
5
http://www.niticentral.com/2014/05/27/government-open-to-debate-on-article-370-pmo-227878.html
6
http://www.niticentral.com/2014/05/17/article-370-time-to-call-omar-abdullahs-bluff-224438.html
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region, internally displaced Kashmiri Hindus, refugees from West Pakistan, the
SCs, the OBCs, the STs and daughters of J&K towards this Article, didn’t
counter his pernicious and misleading formulations. Remember, an
overwhelming majority of population in J&K is bitterly opposed to Article 370
on the ground that it has only empowered the Kashmiri ruling elite to exercise
unbridled legislative and executive power, subvert the institutions, promote
fissiparous tendencies in the Valley. It has further jeopardised the national
interest as well as the general civil, political and economic rights of the people
and further the Pakistani anti-India cause in J&K. Article 370 is not sacrosanct
and infallible. It has caused immense damage to Jammu & Kashmir and its
people, as also to the national cause in the State, as it has been exploited to
the hilt by the communal forces represented by Abdullahs and his ilk in the
Valley to hamper the process of the State’s political and constitutional
integration with India and promote fissiparous tendencies to further their
selfish interests. The demand that there should be a comprehensive debate on
Article 370 to find if it has benefited or harmed the State and its people is as
democratic as it is imperative and those who oppose the demand are those who
consider the State a disputed territory, believe in the two-nation concept, want
to keep the people of the State aloof from the mainstream politics and wish to
convert democracy into a local oligarchy under which the ruling elite exercises
unbridled and extraordinary legislative, executive and judicial powers and the
common masses have no say whatever in the governance of the State.
Remember, an overwhelming majority of the population in Jammu & Kashmir
is vehemently opposed to the atrocious Article 370. In nation’s interest, Article
370 demands rigorous debate. . Prime Minister, Narendra Modi wants a debate
on Article 370 of the Constitution of India for better understanding of the
Article and for real development of Kashmir so that it can be transformed to a
“super state from special state”. Article 370 of the Constitution is putting the
Kashmiris in the permanent darkness and security threat, Pakistan is getting
benefit of the same and they are continuing their activities in the valley and
many soldiers, civilians are being killed in their hands every day.

-Tarunjyoti Tewari
Advocate,
Secretary, Legal and Legislative Cell,
B.J.P. W.B

ARTICLE 370 OF THE CONSTITUTION OF INDIA: NEED PARLIAMENTARY DEBATE – BY TARUNJYOTI TEWARI