Article 370 of constitution of India falls in part XXI of the Constitution of India. The title of the Article “Temporary provisions with respect to the State of Jammu and Kashmir” clearly indicates that this Article was a Temporary arrangement. It was intended to be removed once the objective of this arrangement was achieved, but even after 64 years it remains in Indian Constitution.
What Article 370 has contributed towards the cause of the people of State and development of the State? What is the impact of the article on Women, Displaced, Refugees, Tribes, Panchayats and other dimension of development?
Panchayati Raj is cited as the dream of Late Rajiv Gandhi by Congress which is in power for the last 12 years in J&K (first with PDP and then with NC as coalition partner) but has failed to adopt the 73rd and 74th Amendments to Constitution of India concerning Panchayati Raj or to incorporate similar provisions in the J&K Panachayti Raj Act. Elite Ruling class in the State avoids implementation of these amendments citing Article 370 as obstacle. There is no reservation for OBCs in the state of J & K. Political Reservation have not been given to STs in the State, in spite of the fact that their population is around 15%. Clearly Article 370 has proved to be a hurdle in the way of flow of benefits of policies of social justice and equitable distribution of opportunities for the deprived/ weaker sections of people like, STs, OBC, children, women, refugees, etc.
Article-370 has also indirectly provided means (Art-35A) to violate the social, legal and property rights of even the locals – viz. permanent resident woman, West Pak refugees, POJK Displaced and Chamb Displaced. Before 2002 woman used to lose her Permanent Resident (PR) status if she marries to a Non PR. It was only after the verdict of Jammu Kashmir High Court that the local law was turned down. State Government challenged the verdict in the Supreme Court, but withdrew it later on. Then the local leadership made another attempt by bringing “The Jammu and Kashmir Permanent Resident (Disqualification) Bill 2004’’ which was passed by the Legislative assembly but fell in the State Legislative Council. West Pak Refugees (200000) are still facing the heat of inhuman Governance. They are still leading a life of second class citizens. Jammu Kashmir Government does not consider them as PRs. As a result, they have been denied the basic rights in the State.
It is due to the abuse of Article 370 many provisions of Union Constitution and Laws are not applicable in J&K and there is also no equivalent better State law there. The elite ruler class irrespective of which party adopts only those provisions, laws or acts that suits them. Emergency (1975) is remembered as the darkest phase of Indian democracy. In 1976, the then Prime Minister Smt. Indira Gandhi with the help of the then President, Sh Fakhr-ud-din Ali Ahmed, managed the infamous 42nd Amendment (1976) to the Indian Constitution simply to defer elections to Parliament as well as State legislatures and thus to facilitate continuance of her autocratic rule. However the Amendment was promptly reversed when the Janata Party Government took over under Prime Minister Morarji Desai. Ironically, J&K Government headed by Sheikh Abdullah promptly adopted the Amendment extending Assembly’s term from 5 to 6 years, but conveniently turned a blind eye to the 44th Constitution Amendment to restore the term back to 5 years. As a result, the J&K Assembly term continues to be 6 years.
Corruption is being discussed all over but till now Prevention of corruption act, 1989 is not implemented in J&K. The Lokpal too does not seem a priority. No financial accountability is there in the State. CAG has reported it many times. The reports from the Comptroller and Auditor General (CAG) have at occasions pointed to systematic institutional mis-governance in J&K. These factors discourage institutional investments in the State.
The Constitution (86th Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. But this is not implemented in the State; J&K have no such effective provision in force.
The issue of article 370 needs to be seen in the context of development. If it is established that Article 370 has not done any good and has only provided tools to elitist local leaders for their self preservation, then it must be looked through the mirror of only legal documents and constitutional angles for its retention / modification/ repeal.