Every time the elections are around the corner, BJP yells for the abrogation of Article 370. The 2014 elections were no different. The people of Jammu and Kashmir supported BJP overwhelmingly, but coalition with PDP is taking its toll. Now, BJP is in a fix. On one hand there is PDP with strong views in favour of article 370 and on the other hand, BJP’s backbone RSS is demanding abrogation of the Article. While BJP chooses to keep mum on the issue, the recent statement from MoS Jitendra Singh started the controversy afresh, when he said that BJP hasn’t given up its stand on abrogation of Article 370.
The recent observation of the Jammu and Kashmir High Court that Article 370 has assumed a place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation has fuelled the controversy further. The Delhi High Court too, directing centre on a PIL filed before it challenging the constitutional validity of Article 370 on October 19, asked the Centre to file the prayers of petitions pending in Supreme Court challenging the Constitutional validity of the Article 370.
Article 370, under Part XXI of the Constitution of India, is a temporary provision which grants special autonomous status to Jammu and Kashmir. By virtue of which all the provisions of the Constitution which are applicable to other states are not applicable to J&K. The provision was drafted by Sheikh Abdullah, the then PM of J&K, who argued against the placement of this Article under the temporary provisions of the Constitution and demanded an ‘iron clad autonomy’ for the state.
According to the article, except for defence, foreign affairs, finance and communications, the Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship and ownership of property. There are several myths regarding this article. One such myth is the belief
that the autonomy as envisioned by the Constituent Assembly is still intact. A series
of Presidential Orders have made most Union laws applicable to the State. There is virtually no institution of the Republic of India that does not include J&K within its jurisdiction. Another is restrictions on buying land in the state which, in general formsthe definition of article 370, applies to many other parts of India such as Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland.
Article 370 is synonymous with decentralisation and devolution of power, phrases
that have been on the charter of virtually every political party in India. While the state
of J&K has moved ahead with the Panchayati Raj provisions of the Act passed in the state
legislature, it has not accepted the 73rd Amendment passed by the Indian Parliament
on the grounds that it violates Article 370 of the Constitution of India. There remains a marked reservation in implementing the 73rd Amendment as political parties in J&K, do not want to give more powers to Panchayats as incorporating all the features of the 73rd
amendment would make them independent with respect to planning and execution of development works.
Article 370 was initially inserted in the Constitution to provide security to people who felt vulnerable about their identity, insecure about their future and to increase the accountability of public institutions and services. However, it has now become an instrument to play political tones by parties. As per clause 3, of the Article,the article can be revoked only if a new Constituent Assembly of J&K is convened and is willing to recommend its revocation. The Parliament has the power to amend the Constitution to change this provision, but this could be subjected to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot be amended. Article 370 acts both as a bridge and a barrier and its abrogation will be a bad political action. Every side has misused it and the only way out is to let this article wither away.