The moment the Instrument of Accession was signed by the Maharaja and was accepted by the Union of India, the whole state of Jammu and Kashmir became an integral part of India like other princely states. It became constitutional and legal duty of the Union of India to get back the whole of the territory which had been illegally occupied by Pakistan. The condition of acceptance of merger of Jammu and Kashmir after its acceptance by the people of J&K made pro-Pakistanis to hold plebiscite under the auspices of UN. Art.370 gave special status to the state of Jammu and Kashmir. It says that the provisions of act (repealed by the constitution 7th Amendment Act, 1956) shall not apply in relation to the state of Jammu and Kashmir. Sub Cl. (a) is discriminatory and against the constitutionalism. The law made by Parliament is applicable to the whole country, law making powers of parliament are unlimited and even they have extra territorial application. But in case of the state of Jammu and Kashmir law making powers are limited by (a) Sub-Cl. (b) of Art 370.
- Union list and Concurrent list in Constitution with the government of the state matters specified in the instrument of Accession. Such other matters in the said list with the concurrence of the state.
- Clause (1) of Act 370 is against sovereign law making authority of parliament and in violation of principles of constitutionalism. This article gives superior power to the state of Jammu and Kashmir over the parliament of India which is to obtain concurrence of the state before legislating for her
On January 17, 1956 new constitution was adopted in J&K Assembly. The Constitution of the state was enforced with effect from 26 January 1957. Constitution shaped as a republican democratic state within the Union of India, with its own separate flag, official language and elected head of the state called Sadar-i-Riyasat.
In 1958, constitutional amendment was brought under the purview of Central administrative services. Indus Water treaty and Indus Basin development agreement was signed between India and Pakistan with World Bank mediation and facilitation in September 1960.
Issues due to Article 370
- Affects unity and integrity: It wreaks havoc on the unity and integrity of the country as it creates boundaries for the people of J&K by providing them with separate constitution and rights. It builds emotional and psychological barriers between the people of Kashmir and the rest of India, thus fostering a psychology of separatism.
- Rising militancy and separatism: The separatist lobby in the state has used this barrier to build a mindset of alienation among the people. The poor and the down-trodden people of the state were exploited by the separatist leaders to keep this special status alive. It has led to rising militancy in the region. Most of youth take to stone pelting, remain unemployed and are devoid of welfare development.
- Violation of Right to Equality: No outsider can settle in the state, own any property and cannot vote in the state. Article 35 A had been used to define permanent residents. This violates the fundamental right to equality for Indian citizens and creates barriers for investment and thus development.
- Corrupt and radical administration: The state administration had been completely subverted from within by the separatist leaders who had infiltrated into the system over a period of time. This has led to government resources being used to further promote the propaganda of separatists.
- Affects International image: Existence of this statute is used by Pakistan and its proxies in the valley to mock at the very concept of ‘India being one from Kashmir to Kanyakumari. This affects India’s image on the international platform.
- It bars the people from outside the state to buy immovable and movable property here, set any industry or manufacturing unit, while no other state bars any state subject of J&K to invest there, acquire land or set business establishment.
- It act as obstacle in attracting the flow of investment from big business houses which are running mega projects and giving employment to thousands of educated youth according to their academic, professional, skilled, and non-skilled capabilities.
- Due to this lack of job avenues to the educated unemployed youth of state is forcing them to move out to other states for finding suitable source of bread earning. If this silent migration of youth continues, it will convert the state into a land of old and aged people in next 15-20 years, which is indeed a very serious matter and need to be taken note of by the government.
- Unemployment in J&K has promoted militancy. A poor youth after completing education with limited resources, after sitting idle for long, gets easily lured by the people who push them into anti-national activities by giving few thousands of rupees.
- It is a source of gender bias in disqualifying women from the State of property rights.
- It was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services.
- It is synonymous with decentralization and devolution of power, phrases that have been on the charter of virtually every political party in India.