Relevance of Article 370 granting special status to J & K
Introduction
India attained independence as a result of non violent non cooperative movement. There was no victor or vanquished in this great transfer of power. India attained inependence constitutionally. When British left, there were hundreds of princely states. These states were free to merge with India, Pakistan or remain independent. Most of these states were persuaded to merge with India thanks to tireless efforts of leaders of Independent India, particularly Sardar Patel. Police action had to be taken in Hyderabad and Junagadh.
Special status of J & K
The state of Jammu and Kashmir was ruled by Dogra dynasty. This state is on border of India. The Kashmir region is predominantly populated by Muslim community. Pakistan wanted to annex this region. The Hindu Dogra king was reluctant to merge with India. Needless to say that he would not like to merge with Pakistan. He was inclined to maintain his independent status. He changed his mind when Pakistan inspired Razakars invaded Kashmir. To save Kashmir from Pakistan inspired Razakars, he decided to merge with India by way of treatyon 27 october 1947.
Instrument of Accession
The instrument of accession signed by Maharaja Hari Singh is the key document that makes the merger of the state with India perpetual. This is the treaty of accession that turned the state of Jammu & kashmir as an integral part of India. So why does Pakistan raise the issue of Kashmir repeatedly in international forums? The answer lies in the letter sent to Maharaja Hari singh by Governor General of India, Lord Mountbatten on 27 October 1947. The letter reads: "It is my government's wish that as soon as law and order have been restored in Jammu and Kashmir and her soil cleared of the invader the question of the State's accession should be settled by a reference to the people."
Hence Pakistan as well as separatist leaders of Kashmir demand from time to time right of self determination by holding plebiscite under international supervision. It will be relevant to state that the treaty of accession was made on 26th October 1947 and signed by the king on behalf of the state and Governor General on behalf of Dominion of India. The letter written next day by the Governor General was simply an expression of wish and not in nature of modifying terms of the treaty. There was nothing in the treaty about plebiscite or right of self determination. Moreover, even if such right had to be exercised, this would cover not only Kashmir but also Jammu & Ladakh region. The state of Jammu & Kashmir was merged and there is no question of self determination of just Kashmir region. Besides, people of the entire state participated so many times in general elections for state assembly as well as parliament of Union of India. Also the ex Sadar-e Riyasat Dr. Karan singh, heir to Maharaja Hari Singh became a minisiter in Union cabinet.
Significance of Article 370 of constitution of India
Some leaders of the J & K state assert from time to time that Article 370 of Indian constitution is the bridge between Indian union and J & K. They go to the extent of asserting that the moment the article 370 is removed, the state will become independent. However the merger of Jammu & Kashmir is not because of article 370. The merger is because of the treaty of accession between Dogra King Maharaj Hari Singh and the Governor General of India. The treaty made the state an integral part of India. Later the Indira Sheikh accord further reinforced the merger. However the Indira Sheikh accord provided that the article 370 would be permanent.
It is significant that constitution of Jammu & Kashmir State also provides that the state is an integral part of India. The constitution of the state also restricts the powers of state assembly to matters other than those for which parliament of Indian Union can make law. The integration of state is irrevocable and pepetual primarily because of the treaty of accession. Article 370 is not basis of merger of the state. This is simply a constitutional provision that defines relation between Union and state. The state holds special status but this is within the Indian Union. Moreover, the article 370 is included in 'Temporary and Transitional Provisions of the Constitution. It may be added that various provisions have already been changed. The designation of the head of state and government have been changed long ago from 'sadar-e-Riyasat' and 'Prime minister' to 'Governor' and 'Chief Minister'. There is nothing to suggest in the Constitution of India that the article cannot be changed.
The Article 370 itself provides mechanism of its change. The President may by public notification under Article 370(3) declare that article 370 shall cease to be operative. The provision that the amendment would need approval of constituent assembly of state is also not valid as the said constituent assembly no more exists. The state government has also no power in this regard. The constitution of the state of Jammu & Kashmir clearly states that the state assembly has no power in such matters as are in jurisdiction of parliament of Indian Union.
It is obvious that the article 370 can be changed. Neither the state government or any other country or international community can interfere in this matter. Much water has flown in Jhelum since 1947. Obviously, the article cannot remain on the statute indefinitely. It may be argued that Indira Sheikh agreement provides for retaining the article 370 permanently. It is worth mention that not only heir of the signatory to the accession treaty namely Dr. Karan singh but also heir of Sheikh Abdullah, signatory to Indira Sheikh accord are Indian citizens. There is no provision of dual citizenship- one for Indian Union and other for J & K state. Both Dr Karan Singh and Farukh Abdullah- heirs of both treaties/ accord joined union cabinet as citizens of India. Now there is no authority who can challenge merger of J & K with India. This is irrevocable and final. No body can now challenge the power of parliament to change or delete Article 370 of constitution.
Removal of article 370 is in interests of state of J & K as well as rest of India. The people of ths state are deprived of many development schemes of India Union because of this article. This article is an obstacle to emotional and material integration of people of the state with rest of India. The interets of the tribal of Ladakh and others can be safeguarded just like tribal in other parts of the country.
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