TOPIC: ARTICLE 370 OF THE INDIAN CONSTITUTION: AN IMPEDIMENT

IN THE DEVELOPMENT OF JAMMU AND KASHMIR

SUBMITTED BY:

NAME: KOSHA DOSHI

COURSE: BA LLB 1ST YEAR (2019-2024)

SYMBIOSIS LAW SCHOOL, PUNE

 INDEX

1) Introduction
2) Article 370
3) Law & social transformation
4) Cases, incidents & statistics
5) Conclusions
6) Bibliography & Web references
 INTRODUCTION

This article highlights how Article 370 makes a complete mockery of ideas of
democracy. Article 370 has jeopardized the national interest as well as general civil, political and
economic rights of the people. It has caused immense damage to the state and has hampered the
process of the state’s political and constitutional integration. It has spawned the conditions for
inequality in India. The retention implied festering of contentious issues. Major concern is that
Article 370 has alienated the people living in the state. It has failed to take measures for political
and social integration.

Article 370 when being incorporated a question arose, “why this discrimination, please?” 1
Meaning why treat J & K as a special state and not provide it with provisions applicable to other
states. India, that is Bharat, shall be a union of states. 2 J & K as a special state would only create
discrimination which would lead it to be unconstitutional. Article 370 has constantly eroded over
time.

What has article 370 given us? We have got the largely violent story of Kashmir. 4 die
every day in valley violence. There have been 45,187 terror fatalities in J & K since 1990. 1991
to 2001 were the worst years, accounting for over 66% of terror deaths till 2019. Surprised how
there is no mention of the words secularism and socialism in the preamble of the constitution of J
& K. N Gopalswamy Ayyangar being one of the chief architects of article 370.

Article 370 had led to psychological isolation. 3 Kashmir was underdeveloped because of
Article 370 else would have lead to floodgate of developments.

1
Maulana Harsat Mohini, October 17, 1949
2
Article 1
3
Union Minister Jitendra Singh
 ARTICLE 370

Article 370 is drafted in part XXI, under Temporary, Transitional and Special provisions 4.
Article 370 embodies 6 special provisions for Jammu and Kashmir. They are as follows:

 The state is exempted from the provisions of the Indian constitution and has its own
constitution.
 Parliament’s power over the state extends only in 3 matters – defense, foreign affairs &
communication.
 If ‘constitutional provisions’ or union powers were to be extended to the state, the prior
concurrence of the state was required.
 The concurrence was strictly provisional and was to be ratified by the state’s constituent
assembly.
 State government’s authority to give the concurrence lasts only till the state’s constituent
assembly is convened.
 Only the President is to make an order abrogating/ amending it.

“Article 370 in the Constitution is an article of confidence an accordingly the self- rule of J &
K under it ought not to be fooled with.”5

The law in J & K Constitution is drawn from the state subject laws introduced by
Maharaja Hari Singh in the early 20 th century during the Dogra rule. J & K was a princely state
until 1947 when it acceded with India using Instrument of Accession (IOA).

For some 600 princely states whose sovereignty was restored on Independence, the Act
provided for three options: to remain an independent country, join Dominion of India, or join
Dominion of Pakistan — and this joining with either of the two countries was to be through an
IoA. Though no prescribed form was provided, a state so joining could specify the terms on
which it agreed to join. Raja Hari Singh had initially decided to remain independent and sign
standstill agreements with India and Pakistan, and Pakistan in fact signed it. But following an
invasion from tribesmen and army men, he sought the help of India, which in turn sought the

4
Constitution (Thirteenth Amendment) Act, 1962, S. 2 for ‘Temporary and Transitional Provisions’
5
Justice Rajindra Sachar
accession of Kashmir to India. Hari Singh signed the Instrument of Accession on October 26,
1947 and Governor General Lord Mountbatten accepted it on October 27, 1947.

A new era in Jammu and Kashmir has now started. People of Jammu and Kashmir and
Ladakh were deprived of their rights. With the abrogation of Article 370, the dreams of Sardar
Vallabhbhai Patel, B.R. Ambedkar and Syama Prasad Mookerjee have been fulfilled. 
Government eventually decided to create two UTs namely- Jammu and Kashmir and Ladakh
after constructive discussions and weighed options.
 LAW AND SOCIAL TRANSFORMATION

Over the past 70 years, Kashmiris have spent their lives in permanent darkness & under
security threats. Finally due to the abrogation of Article 370 there will be a remarkably
significant social transformation.

Before the abrogation of Article 370, it served the purpose of affecting the social, cultural and
economic lives of people of J & K in the following ways:

 The presence of 370 created a psychological barrier between people of India and those
from J & K.
 People from other states do not have the right to property and right to vote in J & K. If a
girl from J & K marries a boy from another state who is not a state subject she loses all
her rights in the state of J & K. Rights of women are mercilessly violated under
provisions laid down for permanent residents of J & K 6
 The wealth tax cannot be imposed in the state. The Urban Land Act, 1976 is not
applicable in J & K. This caused the rich landlords to indulge in economic exploitation of
the poor.
 Since RTI act does not apply in J & K, it does not provide appointment of Information
Commission therefore scope for misuse of powers.
 Autonomy is supposed to safeguard the interests of the people not the rulers. Good
governance has proved to be a mirage. It reflects the feudalistic mindset of the rulers.
Absence of accountability amounts to anarchy and lawlessness.
 Article 370 prevents the centralized welfare schemes and constitutional safeguards meant
for the deprived to be available for the people of J & K. The social cost of article 370 has
been huge. The vulnerable and weaker section has been rendered voiceless by virtue of
article 370.
 The progressive measures like the Mandal report on the backward classes cannot be
implemented and therefore J & K does not have good industries.
 There is substantial presence of ST and SC in J & K, almost about 20 % of the state
population. 370 has devoid them from direct central assistance.

6
Section 6 of J & K Constitution
  The reservation in recruitment and promotion for SC and ST were on the basis of Census
report 1961 and no efforts were made to revise it because of Article 370.
 The constitutional empowerments of Panchaayat7 are not applicable to the state. It is hard
to imagine an inclusive society by excluding Panchayats and other decentralized organs
of governance.
 11% of the population constitutes of handicapped and suffering location disadvantages
and no protective measure has been undertaken by the state government to safeguard
their interests.
 Article 370 caused the failure to acknowledge the plight of the deprived section in the
state of J & K. Injustice and exploitation would be an understatement with respect to the
vulnerable.
 India has a system of only single citizenship whereas J & K has dual citizenship which
violates the Citizenship Acct.
 Important Indian laws such as CAG, RTE etc. were not applicable to J & K causing lack
of good administration.
 Prevention of Corruption Act of 1988, Indian Penal Code, Domestic Violence Act,
Religious Institutions Act of 1988, Forests Rights Act, Protection of Wild Animals Act
and the Urban Land Ceiling Acts do not apply in J & K. CBI also has limited jurisdiction
in J & K.
 Anti defection laws for anti party activities is also diluted in J & K. While the minister’s
quota for various opportunities is 15% everywhere, it is 30% in J & K. This causes the
few people ruling the state to benefit while causes are wronged.

Article 370 has been misused and abused repeatedly to cater to selfish motives that are against
national interests.

7
73rd & 74th Constitutional Amendment Act
Since Article 370 has been recently revoked it would now cause betterment of society. The
following changes will probably take place:

 The state will be benefited by the central government schemes, especially the
underprivileged.
 Infrastructure of the state would improve; employment would be generated through
schemes like MNREGA.
 Development because of investment would be generated because of peaceful
environment.
 Growth and prosperity would lead to decreased incidents related to militancy.
 Abundant resources both natural and artificial will be explored.
 Development of the state in all aspects leading to foreign investments will occur.
 Law and order will improve as the orders of SC would be valid in the state. Parliament
would be able to make laws on more subjects for the public of J & K.
 Shariat law will be revoked and RTI, CAG and Right to Education will be applicable
causing people to enjoy better fruits of development.
 Abrogation of article 370 would probably cause Terrorism to be reduced.
 Industrial sector would flourish causing increase in GDP as well as revenue i.e. net
income will increase, growth will increase, more jobs and employment indirectly
reducing youth engaging in terrorism.
 Corruption levels may lower facilitating progress in the state.
 Competition will increase, student progress will improve also opportunities will inverse
for the state.
 Basic modern facilities will become available to all, medical facilities will also tend to
improve since government will gain control and policies will be applicable to the state.
 This decision might help in resettling the uprooted Kashmiri pundits back home which
would be a big win.
 No more of discrimination against women who were deprived of property rights after
marrying outside the state.
 CASES, INCIDENTS AND STATISTICS

Ajay Kumar Pandey v. State of Jammu and Kashmir8

In this case an exception was made wherein a criminal case for transfer from J & K to a
court outside the state was permitted by the Sc. But earlier it was held that it had no power to
transfer cases. Under normal circumstances, Section 25 of civil procedure and Section 406 of
Code of Criminal Procedure did allow transfer of cases to take place but this provision did not
extend to the state of Jammu and Kashmir and was considered inapplicable. Article 370 was the
cause which prevented this from taking place. Kashmir Code of Civil Procedure, 1977 has no
such provision and therefore transfer could not be granted in usual cases in the state of Jammu
and Kashmir.

It can be seen that basic laws and rights were getting violated by article 370. Transfer of
cases was prevented earlier which could indirectly cause obstruction of justice.

Incident of Vipul Kaul - Vipul a 13 year old boy, a J & K resident was suffering from
multiple diseases. He was alive due to medication provided to him by his family which costly
them a fortune. In 2001, the family petitioned the J & K government for aid of a certain sum. The
government assured them but eventually the aid stopped because of change in government. The
home ministry intervened and advised the government to resume the aid. They wrote that under
article 370 they were under no obligation to oblige to the home ministry’s instructions.

The life of a 13 year old was at risk only due to this unconstitutional article 370. Basic
values of social justice were unavailable to them due to using article 370 as a tool and as a play
card to their benefits.

Protection of Human Rights Act, 1993 inapplicability in J & K – In one case, Mohan Lal
was inhumanely tortured and eventually killed. When the National Human Rights Commission
(NHRC) tried to intervene, J & K quoted article 370 and refused to participate in the
proceedings. Abuse of article 370 has been evident in various examples, these incidents have
been of deep concern as they have caused several custodian deaths and illegal encounters but

8
19th July, 2016
article 370 has always acted as a veil covering the historical blunder. Over 41,500 people have
lost their lives in J & K due to militancy since 1989. 9

9
Amit Shah in Lok Sabha 2019
 CONCLUSION

Article 370 has acted as a huge barrier between the relationship of the Kashmiri people
and Indian people. In the name of this article people were deprived of their rights which are
guaranteed by the constitution. Kashmir has faced problems due to poor administration of the
state. The grant for special status has done more harm than good.

Now due to the scrapping of article 370, J & K is being brought completely under Indian
union which will help in the proper administration of the state. J & K has always been an integral
part of India this momentous step taken to not provide it with a special status anymore has
provided an opportunity to bring back the socio economic goodwill of J & K.

For a healthy nation, each state including J & K needs to be completely a part and parcel of the
national mainstream. Having suffered three decades of violence, nobody else has a greater vested
interest in peace and development than an average Kashmiri. Doors to private investment in J &
K will be opened which would in turn increase potential for development. Increase in
investments would increase job creation and betterment of socio- economic infrastructure in the
state. Opening of buying land would bring investment from private individuals and multinational
companies boosting the economy.
 BIBLIOGRAPHY

 J & K & the politics of Article 370 : Seeking legality for the illegitimate by Amitabh
Hoskote, Vishakha Hoskote
 Article 370 : a constitutional history of J & K by A G Noorani
 International Journal of Law- Article 370 of Indian constitution : A study in specific
reference to legal dimensions & implications
 International Journal Of Creative Research Thoughts (IJCRT) – Article 370 & its
implementations
 Article 370 of the constitution of India: Need parliamentary Debate by Tarunjyoti Tewari
 Article 370 : Advantages and Disadvantages – a research paper
 The real face of Article 370 of Constitution of India by Daya Sagar
 Economic Times
 The Times Of India
 Indian Expresss

WEB REFERENCES

 Jstor
 www.researchgate.net
 www.thehindu.com
 scholar.google.com
 books.google.co.in