This Article which contains provision for Jammu and Kashmir was added temporarily and was to be removed within a time- period but it didn’t happen till. This Article was inserted and it provides a special status to Jammu and Kashmir by which it has a separate state and separate laws for itself. Besides, this the area under the occupation of Pakistan and known as “Pakistan Occupied Kashmir (POK)” is developed by the Government of India only but we don’t have any type of control over it.
There are two main issues which prevails regarding the Kashmir problem-
- Whether Pak occupied Kashmir (POK) is a legal part of it?
- Whether Pakistan’s claim on POK can be entertained?
The Kashmir problem arise way back in 1947 when India gained Independence from the British and the states which were under the British control were to be divided into two dominions i.e. India and Pakistan and the princely states were given the right to choose the country in which they wanted to merge themselves.
There were three states which either didn’t want to merge with India or wanted to remain independent. These were Junagarh, Hyderabad and Kashmir. Junagarh and Hyderabad wanted to merge with Pakistan and Sardar Patel merged them in India but Pt. Jawahar Lal Nehru took the Kashmir matter in his own hands and it proved to be a fatal blow to the newly born republic.
In October 1947, Pakistani tribal attacked on Kashmir and Maharaja Hari Singh asked Mr. Nehru to help and he proposed to help him conditionally. As soon as Maharaja signed the accession papers, Mr. Nehru ordered the army to attack the tribal. In between the war, he declared cease-fire and the war ended and the part which was under the tribal, that is what we know as “Pakistan Occupied Kashmir (POK)” came under the occupation of Pakistan.
Now coming to the issues, Kashmir never was a part of Pakistan & never will be. Some people may say that Pakistan didn’t get equal part in the partition then. But Pakistan never was entitled to it since the partition was to be of the states administered by the British and not of the princely states that were given the right to merge in any of the states they wished to join. Kashmir being one such state was free to merge either in India or Pakistan and the ruler there decided to merge the state in the Union of India, so, Pakistan cannot have a claim over a territory which was never a part of the partition which took place in the year 1947. Besides this, we had liberated Goa, Daman and Diu, and Pondicherry (now Puducherry) from the Portuguese and the French since they were the settlement of the Portuguese and the French. So, it can’t be fair that Pakistan demand something from us to which he was never entitled.
The claim of Pakistan stands rejected because it did not have any right over POK and it does not do anything there. Even it did not bother to hold elections there. India does everything for the development of Kashmir but can’t hold elections in Kashmir. Even then, 36 seats are always vacant in the legislative assembly of J&K which signifies the 36 constituencies in which the POK is divided.
Article 370 is a blot which is needed to be removed from the Constitution as soon as possible because only the removal of this Article from the Constitution can help the state to come on equal footing with other states in the matter of development.
Yatharth Nath Pathak
Student, B.A.LL.B. (Honors)
Dr. Ram Manohar Lohiya National Law University, Lucknow
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]