Aniruddha Babar
Asst. Professor
Dept. of Political Science,
Tetso College, Dimapur
The article 370 of the Indian Constitutions is the main article that provides the autonomous status to the state of Jammu and Kashmir. This article has been drafted in the Part XXI of the Constitution, which is mainly associated with the Temporary, Transitional and Special Provisions. However, in a significant reiteration of Jammu and Kashmir’s special status, the Supreme Court of India categorically mentioned that, the provision of Article 370 has acquired a permanent status in the Constitution. “The court was hearing an appeal against a 2017 Delhi High Court order that dismissed a plea seeking to declare Article 370 temporary in nature. The petitioner contended that Article 370 had lapsed and that the separate constitution of Jammu and Kashmir be declared illegal.”
The petitioner also claimed that the continuing Article 370 even after the dissolution of the Constituent Assembly of Jammu and Kashmir, and that of the Jammu and Kashmir “amounts to fraud on the basic structure of our Constitution.”The Constituent Assembly of Jammu and Kashmir was an important body of the elected members that was formed in the year 1951 to formulate the constitution of Jammu and Kashmir. With the establishment of this assembly, it was bestowed with the power to recommend the articles in the Constitution of India, which should be applied to the state of J&K or could revoke the Article 370 altogether. The Constituent Assembly of Jammu and Kashmir created the constitution of the state and dissolved itself without recommending the abrogation of the Article 370 and therefore, article 370 became the permanent and integral part of the Indian Constitution.
However, Article 371 (A), which was passed in the Thirteen Amendment of the Indian Constitution in the year 1962, was formulated to provide the special status to the State of Nagaland. The main aim of the Article 371 (A) was to provide the special status to the new State of Nagaland and was mainly done to fulfil the aspirations of the Naga people. The comparison of the Article 370 and Article 371 (A) has been significant because, people believe that two articles provide the similar status to the State of J&K and the State of Nagaland. The provisions defined under the Article 370 and 371(A) provides the special autonomy to the state of J&K and also to the State of Nagaland. These articles are specifically considered as the frameworks of the constitutional arrangements between the people of the respective states and the Government of India.
One of the major problem or the contentious aspect of Article 370 is about the term “autonomy”, some of the people believe the autonomy of the Constituent Assembly are intact, whereas some believe that this autonomy has been eroded many times. According to the Article 370, it has been said that provisions of the Article 238 shall not be applied to the state and the power of the parliament to enact the laws for the state of J&K are also limited. Another important aspect of the Article 370 is that it states that “the provisions of article 1 and of this article shall apply in relation to that State; (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify”.
Therefore, it has been argued that Presidential orders have eroded the autonomy of the State many times, which makes this Article as symbolic presentation of the State’s rights. It has been clearly stated in the Article 370, that special position that has been given to the State of Jammu and Kashmir, the President of India also have the power of applying the special provisions. Apart from such powers, the President of India also has the power of making exceptions and can apply the provisions of Constitution to the State. Also, Article 370 was introduced under the temporary and transition provision, which also exists till date and the label of ‘temporary’, has not been justified. Supremacy of the Constitution still prevails and the sovereignty, secularism and application of the uniform civil code are still questionable that leads to failure of application of Article 370. However, the question of Uniform Civil code in the context of multicultural, multi-religious feature of India remains unanswered. If Uniform Civil Code meant cultural, religious and social hegemony of dominant culture, then UCC will never serve the purpose but might prove counterproductive that may cause threat to the democratic fabric of the nation.
However, Article 371 (A) provides special provision to the State of Nagaland by recognizing religious and social practices, by recognizing the customary law and procedures of the Nagas and also acknowledges that criminal and civil justice in the State can be applied according to the Naga customary Law. Such, provisions are absent in the Article 370, and also it has been observed that the debate has been going on in public domain as to the dissolution of Article 370 and to recognize the State of J&K at par with the provisions under Article 371 (A). The Legislative Assembly of the state of Nagaland has been provided with the rights to propose resolution and make decisions related to the maintenance of law and order within the State of Nagaland and also to make the decisions regarding the ownership and the transfer of lands. Some of the issues that have been identified in the Article 370 also includes the provisions related to gender biases, where the article has written to be gender neutral but applies the definition of the Permanent Residents of the States according to the notification of 1927, when the state of J&K was under the rule of Maharaja. The notification of 1927 was considered as discriminatory against women.
The Article 370 also strengthen the separatist tendencies, under which the residents of J&K feel highly vulnerable about their socio-cultural-religious, political identity and security. The locals of Kashmir, do not consider themselves as the part of India and people coming to Kashmir from the different states are considered as people have come from India, as due to separatist tendencies people of Jammu and Kashmir have started identifying themselves as separate from Indian identity.
Moreover, from the perspective of Law and Order and socio-cultural safeguards, The Article 370, do not provide any comprehensive information regarding the maintenance of law and order, social and religious values or customary laws of local Kashmiri population. However, Article 371(A) provides a special place to the state of Nagaland starting from administration to various developments in the state that are absent in Article 370.
Article 371 (A) provides the opportunity to the Legislative assembly to enact their own laws according to their social, cultural and traditional values and traditional criminal and civil justice system, which is not applicable to State of J&K due to Article 370. Therefore, Art. 370 has been identified by various authors and researchers highly controversial and therefore, talk of its abolishment and recognition of State of Jammu and Kashmir under the Article 371 has been going on in political, legal as well academic circles, however there are historical realities, facts and political undercurrents too which cannot be ignored, the circumstances under which the Jammu and Kashmir became part of India still haunts the political currents of the state.
