Controversy Arises After the Step Taken By the Central Government to Nullify the Article 370

In the start of August, the NDA (National Democratic Alliance) government did something which we can expect from this government only. Government nullified the important provisions of Article 370 and scrap the Article 35A from the Indian Constitution.  There is huge controversy arises after the abrogation of Article 370. What is Article 370 and 35A in the Indian constitution? Under this, the temporary provisions are described with respect to the state of Jammu and Kashmir in which Parliament needs the Jammu and Kashmir government’s approval for applying laws in the state- except in case of defence, foreign affairs, finance and communications. The law of citizenship, owner of property, and fundamental rights of the residents of Jammu and Kashmir is different from the residents living in rest of India. Under Article 370, citizens from other states cannot buy the property in Jammu and Kashmir State, and also the centre has no power to declare a financial emergency in a state.

For better understanding of Article 370 we need to understand his history. At the time of Independence maharaja Hari Singh decided not to be a part of India or Pakistan, he wants independent Kashmir but after two months of independence, 20th October 1947, Kashmir was attacked by a large number of army from the side of Pakistan and they forcing Hari Singh to join Pakistan but Hari Singh refuses to join Pakistan and wrote Governor-General, Lord Mountbatten and asked India to provide military aid. Attached to this letter ask for aid was the instrument of accession to India, which was signed by Hari Singh. As per the document, only defence, external affairs, and communications would be handed over to the government of India, while control over all the sectors to be retained by ruler, under the Jammu and Kashmir Constitution Act 1939. This agreement held between ex-Prime Minister Jawaharlal Nehru and Maharaja Hari Singh in the presence of Governor General Lord Mountbatten.

After the nullifying the article 370, the move is appreciating and also criticising by the citizens of India. Many people are not against the removal of Article 370 but they all are against the path which is taken by the government. People are appreciating the move by saying that, finally we have “ONE NATION ONE CONSTITUTION”, this will instill the feeling of Unity among all citizens of India, It will open doors for private sectors to invest in Jammu and Kashmir it leads to boost the economy of the state which is too behind compare to other states, there will be the scope of job opportunities rather than tourism, now the centre will able to provide better medical facilities to people of Jammu and Kashmir, the appropriate steps can be taken by the government to control the corruption in state, and most important that now the authorities can take the much better steps to curb terrorism. And the people who argued against the repealing of Article 370 by saying that, there were several presidential orders issues under Article 370, repealing it just like that it will create practical difficulties and political vulnerability, now the Kashmiri cultures can be harmed because of outsider’s interference in the state, they say that path taken by the government is not correct because the state assembly was not there and governor is the represent central government and the central government asking the governor for the removal of article 370 which is not correct, certain sections of the society have started threatening that they can now marry Kashmiri girls since they can now marry outside of Jammu and Kashmir state without losing their citizenship.

Also this controversy has the legal argument, somehow the Article 370 part of the basic structure of the constitution and cannot be altered in anyway. It would be interesting to see if the Court rules that amongst all the articles of the constitution, 370 alone have privilege of choosing the mechanism of its own repeal. Article 368 is commoners of the constitution and Article 370 is some kind royalty. Currently in Supreme Court there are 14 PIL’s regarding Jammu and Kashmir to be heard. The court issued two notices to the centre in which CJI Ranjan Gagoi led bench has said all petitions on Article 370 will be taken up by a 5 Judge Supreme Court bench in October, while another petition was filed in which court asked the central government to give reply on the restrictions that have been imposed on the Kashmir valley.

In the closure of this controversy I would like to say, that due to Article 370 government had many problems to implement their schemes effectively in the state of Jammu and Kashmir and also Army people suffered from various technical issues which prohibit them to do their effectively. Also in normal view the One Nation Two Constitution concept was not good and due to Article 370 the residents of Jammu and Kashmir were not able to enjoy the rights under the Indian Constitution. But at the same time there is clear violation of Human rights and fundamental rights due to curb on Kashmiri in Kashmir and also many leaders are in the detention. Government should try to talk with local leaders of Kashmir to solve the problem permanently. You can’t able to make the peace by standing forces and army in whole Kashmir one day the Kashmiri will react. At last but not least government should take the local leaders in the confidence and try to convince them in the support of nullifying Article 370.

This article is authored by Arpit Pandey, student of B.A. LL.B (Hons.) at ICFAI Foundation Of Higher Education (IFHE) University.

Also Read – Article 370: An Untold Story

Law Corner

Leave a Comment