ARTICLE 370: A CRTICAL ANALYSIS

Abstract

Article 370 is arguably the most contentious provision of the constitution of India. It deals exclusively with the Jammu and Kashmir State that came under the administrative control of the Government of India after the country’s 15- month war that Pakistan started in 1947 to seize sovereignty over the state. Besieged by the controversy right from tits draft stage, Article 370 has been the subject of heated debate ever since the Constitution came into full effect from 26th January 1950. While one section of the Indian polity has strongly demanded its abrogation, some others have vehemently opposed this demand; in 1999, Farooq Abdullah, the State’s then Chief Minister, even threatened a revolt if the Article were revoked. 

x On 26th January 1950, the constitution of India came into force with a unique provision- Article 370. The special status accorded to the state of Jammu and Kashmir in the article meant that its people lived under a different set of laws while being part of the Indian Union. Maharaja Hari Singh signed the accession papers on October 26, 1947 under which the state acceded to India.  

x The accession of Jammu and Kashmir was carried out on the same pattern other states acceded to it. But as a result of the misfortune of the country, Jawahar Lal Nehru pressurized the Maharaja for handing over power to Sheikh Abdullah. On request of Sheikh Abdulla it was decided that the State Assembly will take the final decision on the accession and it was done to appease the Muslim society in Kashmir. From here the state was given the special status.  

x The question arose as to what should be till the assembly took the final decision? For this period Article 370 was incorporated in the Constitution as a temporary measure. But even when the State Assemble ratified the State’s accession to India, the Article was not scrapped. With the blindfold of political interest we lent permanency to the temporary character of the article making our position not only ridiculous before the world but also provided a golden opportunity and solid base for separatist-oriented terrorism to grow in Kashmir. x This special status delinks the state from rest of the country. It is because of this Article that the Government of India cannot enforce any law connected with Jammu and Kashmir without the approval or concurrence of the State Government. Only defense, external affairs and communications fall in the central list.2 Against this the Parliament has the powers to frame laws for rest of the states in the country.