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By There has been some talk recently of doing away with Article 370, which accords special status to the state of Jammu and Kashmir. Reena Martins looks at both sides of the debate
  • Published 18.06.14

‘‘A rticle 370 is nothing but a feeding ground for parasites at the heart of paradise.”

The quote, on a canvas bathed in deep purple, pink and gold, a lone barren tree in a corner, is attributed to former Jammu and Kashmir governor Jagmohan on a Facebook page that simply calls itself “Article 370”.

Yet another page on the social media site begins by calling Jammu and Kashmir the “insolent child of Bharat at present,” and urges readers to “correct our territory Jammu and Kashmir and regain our pride.” The name of the page is “Ammend (sic) Or Remove Article 370”. A banner across the top of the page asks: “Is Article 370 a boon or a nuisance for the people of J&K state?”

The question is being asked by many in the Bharatiya Janata Party (BJP) which has not just cruised to power at the Centre in the May elections but also garnered 32.4 per cent of the votes in Jammu and Kashmir. The BJP’s victory has rekindled the call for eliminating Article 370 which, despite its so-called temporary status since its inception in 1949, has proven to be a mighty Himalayan boulder.

Trouble for Kashmir started to brew last December when the then would-be Prime Minister Narendra Modi brought up Article 370 in a rally, saying that it needed to be debated whether it had actually benefited the people of the state.

This was further strengthened when Jitendra Singh, newly elected member of Parliament (MP) from Udhampur and a minister of state in the Prime Minister’s Office, in a tweet dismissed the controversial article as more of a “psychological barrier” than a physical one.

The statements have turned the arc lights back on the article, which gives a special status to the people of Kashmir. Among the provisions under Article 370, “non-state subjects” cannot buy property in Jammu and Kashmir. This saves the ecology, architecture and cultural heritage to a large extent, and safeguards the interests of the locals.

Jammu and Kashmir has tried to resist any attempts to abrogate its Constitution. Its Constitution (Application to Jammu and Kashmir Order), 1954, says that no constitutional amendment shall have effect in relation to the state of Jammu and Kashmir unless applied by an order of the President of India under Article 370.

But the constitutional power cannot be subordinate to any agreement, order or state power, points out K.N. Bhat, Supreme Court lawyer and former additional solicitor general. “In our democratic system, the Constitution is the supreme law of the land and all organs of the government — executive, legislative and judiciary — derive their powers and authority from the Constitution,” the Supreme Court stressed in a case in 1993, he says.

The government can invoke the power vested in Article 368 and amend the Constitution (that is, revoke Article 370) by passing a bill in either house of Parliament. When the bill is passed by a majority, it will be submitted to the President for his assent and the Constitution will stand amended.

Those who are against abolishing Article 370 offer different arguments. “If Article 370 is abrogated, the bridge between India and Pakistan will cease to exist,” says Altaf Haqani, a Kashmiri lawyer. He implies that there will be no relationship between India and Pakistan if the article is done away with.

But some argue that the real fear is that with the abolition of the article, the state’s natural beauty, resources and heritage would be hit, because industry from outside the state would be given free reign. “But keeping outsiders out does not entirely insulate the state from environmental damage,” counters Nadeem Qadri, an environmental activist in the Valley. “The hydel projects in the state have depleted the indigenous brown trout population; and industries that run on long leases do not contribute to the socio-economic benefit of the state and only focus on getting subsidies,” he adds.

Others look at the wider connotations of taking away the region’s special status. In a recent statement, former minister and MP Karan Singh points out that his father, Maharaja Hari Singh of Kashmir, signed the Instrument of Accession in October 1947 under “unusual circumstances when a full-scale war was raging due to the Pakistani based tribal invasion” in Kashmir.

“It is true that that instrument was exactly the same as the document signed by all the other former provincial states. However, whereas the other states later signed merger agreements, the relationship of Jammu and Kashmir with the rest of the country was governed by a special set of circumstances, and hence given a special position.”

Singh argues that while Jammu and Kashmir is an integral part of India, it “does not necessarily mean that it has to be treated exactly on par with other states”. Hong Kong, he points out, has been given a special dispensation by China.

Those who are in favour of doing away with Article 370 hold that it strengthens separatist tendencies in the state. But according to Amitabh Mattoo, director, Australia India Institute, and professor of international relations, University of Melbourne and Jawaharlal Nehru University, Article 370 “was and is about providing space, in matters of governance, to the people of a state who felt deeply vulnerable about their identity and (were) insecure about the future.”

The article, he writes in an opinion piece, is about “empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services” in the region.

“Article 370 is synonymous with decentralisation and devolution of power… There is no contradiction between wanting J&K to be part of the national mainstream and the state’s desire for self-governance as envisioned in the article,” he writes.