Dr. PP Singh
Article 370: Fallowing accession of J and K with India the existing relationship of the state with the Union of India as an integral part there of. Justice, Social , Economic and Political. LIBERTY of thought expression belief faith and worship EQUALITY of status and opportunity and to promote amongst us all FRATERNITY assuring the dignity of individual and the unity of nation. In our constituent assembly this 17th day of November 1956 do herby adopt enact and give to ourselves, this constitution on application to Jammu Kashmir.
Order No 1954: CO 48 Now this order may be called as constitutional order 1954 (2) it shall come into force on 14th the day of may 1954 and shall thereupon supersede the constitution order 1950. There is no doubt that article 370 provides two major provisions to the state i) separate state flag ii) and separate constitution. The separatists are enjoying these two provisions and they strongly opposed and accuse Indian of unduly extending some provision of Indian constitution to J and K. some Kashmiri leaders even now question that if article 370 is abrogated, J and K accession with India does not holds good and accusing India of eroding the autonomy. The article 370 of Indian constitution is not a special Status Provision as regards J and K, but it is a temporary provision with respect to the state of Jammu and Kashmir. This article is temporary and has to go, the word temporary very lucidly conveys that those who have drafted and accepted the constitution of India made this provision with the hope that state uncertainty / negotiations would end soon. Some people do argue that article 370 can not be abrogated since there is no constituent assembly. This logic can be set aside since the J&K constituent assembly was later named as the legislative assembly under J and K constitution of 1996 amended in 2008. Bhartiya Jan Sangh always opposed Article 370 for separated identity of the state with separate state flag and separate state constitution unlike other states of India. Since after accession it (JK State) has become a integral part of India then why special status for a particular state, it means separatists wants to prove it that since the state of J and K has its special status it should be independent of India’s control.
The Kashmiri leaders wanted to limit the Federal jurisdiction over the state to the original terms of the instrument of accession according to which the state acceded only three subjects, namely defence, foreign affairs and communication to the Indian union and retained the residual sovereignty.
Now the question arises why it has been written that article 370 of Constitution of India is temporary. In my presumption that whatever Govt. will come into power in the state shall have to work within the frame work of Indian constitution and state of J and K can not in-isolation run its Govt. without Govt. of India will and power and if the elected representative shall farm the govt. every minister, MLA has to take an oath as per the constitution of India. The entire election process whether assembly or parliament are conducted as per notification of CEC of India so where lies the state claim for separate identity. Therefore the Article 370 should have been eroded by now fully. As regards separate state flag and separate constitution there is no justification in retaining these two provisions that state of J and K should have an Indian flag and Indian constitution.
If Article 370 is revoked, the provision of separated flag and separate constitution will automatically go but there is another rider of the article 35-A of the constitution. Under article 35-A references to the commencement of the
constitution after Article 35, the following new rights enacted by legislature of the state.
a)Defining the classes of persons, who are shall be permanent residents of the state of J and K
b)Conferring on such permanent residents any special rights and privileges or imposing upon other person any restrictions as respects.
i.Employment under the State Govt.
ii.Acquisition of immovable property in the State
iii.Settlement in the State or
iv.Right to the scholarships and such other forms of aid as the state govt. may provide shall be void on the ground that it is inconstant with or takes away or bridges any right conferred on the other citizen of India by any provision of this part. The above article 35A (1954) was incorporated in the Indian constitution through a constitutional amendment even much before the constitution of J and K came into existence. This article is highly discriminatory against people living in other parts of the country because it prohibits them to purchase land or became permanent resident of J and K or get permanent employment in the state and therefore need thorough review and amendments by the state assembly. If the people of J and K can settle anywhere in India why not people of other parts of India in J and K./ the answer to this question has to be given one day by govt. of state as well as govt. of India. These are some of the
provision made some 6 decades earlier now don’t required to be carried
forward and a uniform code of conducts for all states of Indian union are required to be put in place and equal rights be made applicable to all people of India irrespective of state they belong. (Concluded)
