Article 370: Review by a Law Graduate

Lunacy or Excuse to keep J&K free (Article 370)

“East and West on fields forgotten; bleach the bones of comrades slain

lovely lads and dead and rotten; none that go return again” –A. E. Housman

In August 1947 the British were quitting India nearly 200 years after they took power over one of the largest ethnically diverse nations in the world, just to be divided from one country to become two-India and Pakistan. The once peaceful land imploded, people scrambled on each side of border 50 million were forced from the villages they had lived in for generations. It was a terrible site as people had no food or clothes as a huge mass of humanity was moving around. Communities that had lived together for centuries turned on each other as one of the largest massacres of 20th century took place; they were in grip of madness while the British watched.

Kashmir’s then King Hari Singh acceded “I sign instrument of accession and declare Jammu and Kashmirto be a part of dominion of India “.There were 565 provinces at time of independence who were free to join India who claims the entire erstwhile princely state of Jammu and Kashmir based on an instrument of accession signed in 1947 by most of the princely states who joined what we today see as one India. Pakistan claims Jammu and Kashmir based on its majority Muslim population and till date asking to demilitarize Kashmir and regularly compares its situation with Palestine, whereas China claims the Shaksam Valley and Aksai Chin. Nehru and Sheikh Abdullah allegiance formed Kashmir even after resistance from M.A. Jinnah who wanted it to be diluted into Pakistan. There was Maharaja Hari Singh who wanted it to be Free State thinking that he could remain self sufficient but was cut short of food supplies by Pakistan and later attacked at Uri and Baramullah by Kabaili troops, who attacked on women and destructed the whole marketplace and started sending back things of loot to Pakistan. Than Hari Singh had to seek help from the Indian government to help his province with India’s armed forces who was lured by the destruction and resilient action of Pakistani troops. Equating the sufferings of Kashmiris to Palestinians a regular provocation and terrorizing of Jammu and Kashmir always results in continuous exchange of fire instead of peace by demolishing the cease of fire pacts between India and Pakistan.

Article 370 is the article drafted in Part XII of the Constitution, which relates to Temporary, Transitional and Special Provisionsthat grants special autonomous status to the state of Jammu and Kashmir. This article specifies that the states must concur in the application of laws, except those that pertain to Communications, Defense, Finance, and Foreign Affairs.Similarly in Himachal Pradesh, Arunachal Pradesh, Andaman&Nicobar Islands and Nagaland protections for unique status exist in tribal areas of India. However, it is only for the state of Jammu and Kashmir that the accession of the state to India is still a matter of dispute between India and Pakistan still on the agenda of the UN Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article.

The Indira-Sheikh accord between Kashmiri politician Sheikh Abdullah and then Prime Minister Indira Gandhi stated, “The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India”. Preamble and Article 3 of Part 2 of the Constitution of Jammu and Kashmir states that the State of Jammu and Kashmir is and shall be an integral part of the Union of India. Article 5 states that the executive and legislative power of the State does not extend to matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India. These provisions cannot be amended. The constitution was adopted and enacted on 17 November 1956.

Indian security forces claim they are alone standing in between Kashmiris and militants/Islamic extremists who plunder and destroy the calm of the paradise on earth, while militants claim they are fighting for Kashmiri independence and completing what was left unfinished, to defend Muslim Kashmiris from an abusive Indian army considering it as their doom. Both sides have committed widespread and numerous human rights abuses and violations of international humanitarian law unaware of what had befallen at times of Independence which is considered incomplete by Pakistan. Human rights abuses or oppression of Hindu’s in Azad Kashmir(a disputed territory administered by Pakistan )/ Hyderabad City/southern Sind , are an ongoing issue, ranging from forced disappearances, torture to political repression and electoral fraud and suppression of freedom of speech. Asian Legal Resource Centre (ALRC) is cited to indicate that dozens have disappeared after their arrests in Pakistan-held Kashmir. Those missing include Pakistani army personnel, those involved in spying for Pakistan, or those suspected of spying for India. A significant number of cases point to the Inter-services Intelligence’s involvement in these disappearances which is potent of ransacking anything and everything in Pakistan.

The UN has been acting as a mediator since 1948 and 1949, trying to find a solution agreeable to both India and Pakistan because none can withstand upon this ruin. Thousands of people have died as a result of the turmoil in Jammu and Kashmir. In October 2015 Jammu and Kashmir High Court said that Article 370 is “permanent” and Jammu and Kashmir did not merge with India the way other princely states merged but retained special status and limited sovereignty under Indian Constitution. According to the Pakistani newspaper Daily Pakistan, the High Court has ruled that “State has never been part of India.”

Surbhi, a kashmiri pandit girl living in Jammu, who, completed her engenireeing says ” I live in there are not much problems here…but places which are far off from the city..mostly close to the border area..they are in a constant threat of terrorist attacks..and also the roads connecting the highways are not build properly because the people have no trust on the government. People have to trust the government…and all have to understand that Kashmir is a part of India so they do not help terrorism to grow, We all love to stay here..despite all the problems it’s our we love it.

The debate goes on about Article 370’s existence even after Kashmir being a part of India why is it given special status. And it stands alone, for what it had followed has long fled, lying and gaping, unmoving and silent under the dreadful strides against it.

By                                                                                                                                                                         Vinod Ranwah                                                                                                                                                         B.A.LL.B.                                                                                                                                                           MLSU Law College, Udaipur