Welcome observation on Article 370

Supreme Court’s observation  that the Article 370 of the Constitution is not a temporary provision has been widely welcomed in Kashmir. The court made it clear “that despite the headnote of Article 370, it is not a temporary provision”. So, we can say that the provision is permanent as was made clear by the J&K High Court in an order in 2015.   A Division Bench of the High Court  headed  then by Justice Hasnain Masoodi and Justice Janak Raj Kotwal had observed that Article 370, granting special status to the state, has assumed place of permanence in the Constitution of India and the feature is “beyond amendment, repeal or abrogation”.

Court’s line of argument went like this: only the J&K’s Constituent Assembly which was framed to determine “the Constitution of the state as well as sphere of Union jurisdiction over the state” had the power “to recommend to the President that Article370 be declared to cease to be operative or operate only with the exceptions and modifications mentioned in the recommendation”.But since Constituent Assembly made no such recommendation before its dissolution on January 25, 1957, Article 370 has become a permanent provision of the Constitution, notwithstanding its title as a “temporary provision”.

J&K unlike other States of the Union, therefore, “has its own Constitution with Preamble reflecting core constitutional values, Directive Principles of State Policy mapping out its constitutional goals, the extent of its executive and legislative powers and its relationship with Union of India”.

But the fate of the Article 35-A which is one of the features of Article 370 remains a great cause of concern. More so, when several petitions challenging it are being heard by the Supreme Court and the next hearing is on April 9.  This has validly deepened the anxieties in Valley. The Article 35A which was extended to the state through a 1954 Presidential Order gives protection to the state subject laws in J&K whereby outsiders are not allowed to settle or acquire property in the state. It was specifically devised to grant protection to state subject laws that had already been defined under the Maharaja’s rule and notified in 1927 and 1932.

The petitioners seek the repeal of the “unconstitutional provision” since it was added by the Presidential Order and not by approval of the parliament. The position of the BJP and its allied groups on the issue is vey well-known. For them, it is the Article 35A and not the Article 370 which comes in the way of settling Indians from other parts of the country in J&K.

A successful challenge to Article 35A will have far-reaching political fallout. It will be an assault on the Muslim identity of J&K.  Once the protection is gone, it won’t take very long for the demography of the state to change. This is why what is needed in Valley is a united political front against the apprehended move. Though the state government has displayed some recognition of the gravity of the challenge, it needs to do much more than that to fend off the concerted efforts to get the provision revoked.

 

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