1. Article 370 is a part of our Constitution.
2. It is included in part XXI, the title of which is "Temporary, Transitional and Special Provisions".
3. The heading of Article 370 is worded as "Temporary provisions with respect to the State of Jammu and Kashmir".
4. Our Constitution came into effect from 26th January 1950. The special provisions envisaged by Article 370, have been amended from time to time. The erosion has started from 1954. 1954 is important because in 1953, Shaikh Mohmed Abdullah, a very close friend of our first Prime Minister Pt. Jawaharlal Nehru was arrested and put behind bars. Of course all these amendments were endorsed by the J&K State assembly.
5. The following changes were made by these provisions:
(a) In 1954, the laws and rules of departments of Customs, Central Excise, Civil Aviation and Post & Telegraph were made applicable to the State.
(b) In 1958, the Centre could appoint IAS and IPS officers in the State. So also the State came under the authority of the CAG.
(c) In 1959, the Central Census law was applied.
(d) In 1960, the Supreme Court got the appellate power to review the judgments of the J&K High Court.
(e) In 1964, Articles 356 and 357 were made applicable to the State. We all know that the Article 356 empowers the President, in case of Constitutional breakdown in the State, to assume all or any of the functions of the Government. It means that the Presidential rule will be there. And Article 357 gives to the President's nominee i.e. the Governor to exercise the powers of the State Legislature also.
(f) From 1965 all the Central laws pertaining to labour unions, Social Security, Insurance etc were made applicable to the State.
(g) In 1966, the people of the State got the right to send their elected representatives to the Lok Sabha.
(h) In 1966 itself the State Assembly made an amendment in the Constitution of the State by which, the titles of Vazir-e-Azam and Sadar-e-Riyasat were changed to the Chief Minister and the Governor as in other States.
(i) In 1969, in cases related to the election, the Supreme Court got the appellate authority over the decisions of the State High Court.
(j) In 1971, the State High Court got the powers conferred by Article 226 of our Constitution which enables it to hear the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them, for the enforcement of any of the rights conferred by Part III.
(k) From 1986, Article 249 was made applicable to the State. This Article gives power to the Indian Parliament 'to legislate with respect to a matter in the State List in the national interest'.
It is true that since last about 28 years no erosion of the Article 370 was effected. We can infer from a letter that Pt. Jawaharlal Nehru wrote to Pt. Premnath Bajaj, an important personality in J&K, on 21st August 1962, that Panditji was in favour of completely abrogating the Article. The letter purports to say that in spite of the Article that gives special status to J&K, much has been effected; and even that which remains to be done will be done. In this matter the main problem is of sentiments.
Some other facts are also to be noted:
The article itself contains the provision to completely annul the Article. Sub section 3 of the Article 370 says- "Notwithstanding anything in the forgoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative only with such exceptions and modifications from such date as he may specify."
It is true that there is a proviso viz. "the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification." But is the Constituent Assembly of the State in existence? How can a dead institution give its approval? Besides Article 370 is a temporary provision and therefore should not be made a permanent feature.
It is to be admitted that Article 370 has became a sentimental issue, for the leaders of the Kashmir Valley. But the State consists of other two regions also viz. a) Jammu and b) Laddakh. The sentiments of the people of these two regions should also be respected.
These two regions don't want the Article 370. So let the State be trifurcated into three units viz. (1) Jammu, a separate state and (2) Laddakh getting a union territory status and (3) Valley The population of the Jammu region is almost equal to that of the valley. The area of Jammu is more than that of the valley by 11000 sq. kms. The population of this new State of Jammu will be more than that of any of the six states of the North-east. Let the State assembly pass a resolution to this effect, and let the valley satisfy itself with Article 370 as it stands today.
I can realize, that this involves a long process. But let the State Assembly pass at least the 3 laws at the earliest, I mean before the State Assembly elections.
1) More than 2 lac people of Jammu region have a right to vote for the Lok Sabha, but not for the State Assembly. It means that they are citizens of India but not of the J&K. This absurdity must be immediately removed.
2) Immediate efforts be made to rehabitate the Kashmiri Pandits. It is a shame on all people of the valley and they must hang their head in disgrace that the Pandits were not allowed to live in their ancestral houses by the majority, I mean Muslims. Immediate dialogue be started with the Pandits.
3) The tenure of the State Assembly be reduced to five years like all the States of the Union. What is the point in having a tenure of six years for one State only?
I hope the new Central Government will move with alacrity in this matter.
-M G Vaidya
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