the subject for discussions and debates. So much, so that, it is a common man’s belief that the Indian State of J&K has a separate Constitution. But it can not be overlooked that the “Separate” Constitution under reference has been given by the Constitution of India. So, when the Indian Constitution is the mother of the J&K Constitution, how could J&K have a separate Constitution?
Controversies related to Article 370
Some people name Article 370 as the root cause of controversies over J&K being equal to all other states of India like Bihar, Panjab, etc ; Many believe that now Article 370 does not have much importance since it is through this article many provisions of Indian Constitution, many laws/ Acts of Indian Parliament been extended to J&K. Many have become part of J&K Constitution or some restrictive provisions of J&K Constitution are now very much in conformity with Constitution of India, so debates on Article 370 should now come to end. Rather the people who made such provisions and made some controversial commitments in 1947 to 1950s should have been questioned or their “heirs” need be asked to accept the responsibility.
It will not be fair to simply question and reject those people for whom such provisions have been laid and if these beneficiaries still want to hold fast to the 1Article 370; they can not be forced to shed their “special” rights, rather they shall have to be socio-politically convinced for coming out of the mindset of “special” provisions . They will have to be convincingly told about the negative aspects, if any, of such provisions in case it has to remove democratically.
Unfortunately today, it is a bitter reality that Article 370 has proved a breeding ground for those who are against J&K as an integral part of India, or who raise questions on Constitutional Status of J&K. It poses also a threat to peace in J&K with the passage of time. The number of those questioning Indian intentions has grown. Rather it appears that Delhi has not taken the issues that seriously over the last 65 Yrs, not even after 1990.
Since no constituent assembly has to stay permanently and hence using the term Constituent Assembly here indicates that Article 370 had to stay in its first form for a shorter period. Some people do argue that Article 370 can not be abrogated since now there is no Constituent Assembly. For argument sake, even this logic can be brushed aside since the J&K Constituent Assembly was also named as the Legislative Assembly under the Constitution of J&K 1996 amended in 2008 Samvat (discussed in detail in earlier chapters). So, the Legislative Assembly can perform the function in case of need arises. Article 368 of Indian Constitution talks of the procedures for amending the Constitution, maybe it could be of some help.
In the earlier times, the people of other Indian states too did not that seriously care for J&K affairs, now with the passage of time, it may not be that easy to clear doubts in the minds of common man, particularly in Kashmir valley, simply by addressing only to the technicalities.
The facts and truth about the intentions of Delhi shall have to be carried to the common man to clear the confusions created that the separatists over the years; even to undo the concepts that have been cultivated by some “ mainstream” Indian leaders who believe that J&K is different than the other Indian States.
In the same way, the Constitution (Application to Jammu and Kashmir) Presidential order of 14th May 1954 too could be seen as a foundation for J&K Constitution. So someone could say that why should any Indian who is the Permanent Resident of J&K forego any special rights that the Indian Constitution extends to him? In case the people who are not for retention of Article 1370 or J&K holding separate Constitution attend to these aspects seriously, They may not be they succeed in motivating those Indians in J&K who are not ready to shed their “special” provision. There have been surely one disadvantage of Article 370 and that is, that some people have been using Article 370 as a symbol of separatism for wooing the innocent people away from the Bharat. Otherwise, also it would be in the overall interest of those who want to check those who have been and are promoting the separatist’s ideologies in the name of separate Flag and Constitution
Text of Articles of Indian Constitution under reference :
Part XXI of Constitution of India: Temporary provisions with respect to the State of Jammu and Kashmir.
(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to—
(c) 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: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
AMENDMENT OF THE CONSTITUTION (Article 368)