Article 370 failed miserably in its purpose becoming a political tool in the hands of powerful politicians. With battlelines drawn over its proposed abrogation by the central government, the debates are once again hot among the ruling class. But the people of Kashmir suffer on silently.Iftikhar Gilani// Notwithstanding the trial balloon floated by the Union Minister Jitendra Singh on the abrogation of Article 370, the relations between Srinagar and New Delhi are replete with broken promises and a lack of trust, which often manifest themselves in violent outbursts. The lack of spine in Kashmiri leaders, who chose power instead of standing against these breaches, which, at times, paved the way for such infringements has made matters worse.
Article 370 was kept as a temporary provision in the Constitution, because until the 1960s, the Government of India’s stated policy was to conduct a plebiscite to determine the future of Jammu & Kashmir. Accordingly, a white paper on Jammu & Kashmir published by the Government of India in 1948, which was authored by Sardar Vallabhbhai Patel, recorded: “In accepting the accession, the government of India made it clear that they would regard it as purely provisional until such time as the will of the people of the State could be ascertained.” The Constituent Assembly debates show that both Patel and Syama Prasad Mookerjee had fully approved Article 370, which accords special status to Jammu & Kashmir.
Jammu and Kashmir is the only state in the Union of India which negotiated the terms of its membership with the Union. The ruler of Jammu & Kashmir had acceded to India by an Instrument of Accession on October 26, 1947, in respect of only three subjects: defence, foreign affairs and communications. A schedule listed precisely 16 topics under these heads plus four others (elections to the Union legislature and the like). Clause 5 said that the Instrument could not be altered without the state’s consent. Therefore, Article 370 was a solemn compact with neither side mandated to amend or abrogate it unilaterally, except in accordance with the terms of that provision. While all the provisions of the Indian Constitution were debated in the Constituent Assembly after deliberations in its Drafting Committee, Article 370 was discussed for five months by Nehru and his colleagues with Sheikh Abdullah, the then prime minister of Jammu & Kashmir from May to October 1949.
The successive Congress governments in league with those in power in Srinagar have often violated this solemn compact, creating mistrust and an uncertainty in Kashmir. The legal luminary A G Noorani in his book Article 370: A Constitutional History of Jammu and Kashmir documents how the article has been tampered to the extent that only its husk has been left. Way back on December 4, 1964, the then Union home minister Gulzari Lal Nanda had admitted in the Lok Sabha that Article 370 is left only with its shell, while its content is completely emptied. The book mentions first ‘unfortunate breach’ by N Gopalaswamy Ayyanger on October 16, 1949, in unilaterally altering the draft agreed with Sheikh Abdullah. If the original agreed draft had been approved, the ouster of Abdullah from the government later in 1953 would have been impossible.
The state of Jammu & Kashmir has been put in a status even inferior to that of other states. Parliament had to amend the Constitution four times to extend the President’s Rule imposed in Punjab. For Jammu & Kashmir, it was accomplished—from 1990 to 1996—by mere executive orders under Article 370. The article was also used freely not only to amend the Constitution of India but also of the state. On July 23, 1975, an order was made debarring the state legislature from amending the state constitution on matters in respect of the governor, the election commission and even ‘the composition’ of the upper house, the legislative council.
Another case illustrates the capacity for gross abuse. On July 30, 1986, the President made an order under Article 370, extending to Jammu & Kashmir Article 249 of the Constitution in order to empower Parliament to legislate even on a matter in the State List on the strength of a Rajya Sabha resolution. Ironically, concurrence to this was given by the Centre’s own appointee, governor Jagmohan. The former law secretary of the state G A Lone described how the ‘manipulation’ was done ‘in a single day’ against his advice and ‘in the absence of a council of ministers’.
Article 370 cannot be abrogated or amended by taking recourse to amending provisions of the Constitution. For, in relation to Kashmir, Article 368 has a proviso which says that no constitutional amendment ‘shall have effect in relation to the State of Jammu & Kashmir’ unless applied by the order of the President, that requires the concurrence of the state’s government and ratification by its Constituent Assembly. With the Assembly’s dispersal on November 17, 1956, after adopting the constitution of Jammu & Kashmir, there is no authority left to recommend its abrogation.
When the May 1996 parliamentary election in the state, the first since 1989, were marred by the boycott call by separatists and coercive voting, the central government offered a bait to the lone mainstream party, the National Conference, to participate in the assembly poll. Its leader Dr Farooq Abdullah was cooling heels in London and was adamant to seek constitutional changes before committing to take a plunge in the electoral process. His confidence stemmed from the famous ‘sky is the limit’ observation made by the then prime minister P V Narasimha Rao in the African country of Burkina Faso to underline that any kind of future arrangement for Kashmir could be discussed.
In 1994, Dr Abdullah was part of a delegation to Geneva to persuade Iran to drop an Organisation of Islamic Countries resolution at the UN Commission on Human Rights (UNCHR), later rechristened as the Human Rights Council, to condemn India for human right violations in Kashmir. The resolution, with the UNCHR approval, was to be referred to the UN Security Council for initiating economic sanctions and other punitive measures against India.
Privately, Dr Abdullah says that he had been offered restoration of the constitutional arrangement in Jammu and Kashmir that existed prior to 1953, which is a euphemism for greater autonomy, in lieu of saving India from the possible disgrace at a time when the country had mortgaged its gold reserves. Dr Abdullah was, however, persuaded by Rao’s successor H D Deve Gowda to participate in the October 1996 assembly election with the assurance that he was free to pursue legislative process to seek changes in the constitutional relationship between Srinagar and New Delhi. But, ironically, when the state assembly completed the process and adopted a resolution accepting the report of the State Autonomy Committee on June 26, 2000, the Bharatiya Janata Party-led National Democratic Alliance (NDA) had taken charge in New Delhi, which summarily rejected the resolution. It is, however, another matter that Dr Abdullah was sharing power with the NDA, with his son Omar Abdullah as part of the same Cabinet which rejected this resolution.
Much water has flown since then. The argument that Article 370 constitutes a psychological barrier between the governing elite in Delhi and the Kashmiri youth is a false one. The real problem lies in Kashmir’s history of successive rigged elections and foisting unpopular chief ministers on the people. The two-decade long militancy in Kashmir has origins in the massively rigged 1987 election. Delhi needs to address these two areas of anxiety and suspicion, and not Article 370.
K G Suresh //The debate on Article 370 has been revived once again with the assumption of office by the National Democratic Alliance government at the Centre. The abolition of Article 370 has been one of the core demands of the Bharatiya Janata Party since its inception, as was the case with its earlier avatar the Bharatiya Jan Sangh (BJS).
In fact, the BJS founder Syama Prasad Mookerjee died as a detenu on 23 June 1953 under mysterious circumstances after he was arrested while crossing the Kashmir border at Lakhanpur, opposing the Congress government’s decision to grant special status to the state with its own flag, prime minister and constitution. “Ek desh mein do vidhan, do pradhan aur do nishan nahi chalega (a country cannot have two constitutions, two prime ministers, and two national emblems)” was his slogan.
The Abdullah family of Kashmir, which has, of late, threatened to secede from India if the article is revoked, is deliberately misleading the people of India on its special provision.
To begin with, the Abdullahs know very well that Article 1 of the Constitution of India declares India to be a union of states as specified in its First Schedule, which contains the lists of states and union territories and includes the state of Jammu & Kashmir as part of India. The same position finds reflection in Section 3 of the Constitution of Jammu & Kashmir which declares the state of Jammu & Kashmir to be an integral part of the Union of India. Any effort to create doubts with regard to the integration of Jammu & Kashmir with India are contrary to the aforesaid provisions. Hence, it would be a totally invalid argument to say that the Jammu & Kashmir is part of India only because of Article 370.
Coming to history, the state of Jammu & Kashmir acceded to India on 26 October 1947 with the execution/signing of the Instruments of Accession by the then ruler of Jammu & Kashmir and its acceptance by Governor General Lord Mountbatten, even as Pakistani tribal raiders were invading the state.
The advocates of Article 370 among the Indian intelligentsia appear to be unaware that the Instrument of Accession which was signed by the ruler of Jammu & Kashmir was identical to the instruments of accession signed by the other rulers of the states which had acceded to the Union of India.
While in the case of other states, the Constitution of India ipso facto applies to them, Article 370 was deliberately introduced to protect the provisions of the Instrument of Accession in a different manner so far as they pertain to Jammu & Kashmir. This differential treatment to the Instrument of Accession by incorporating its temporary provisions into Article 370 has led to multifarious problems, including a sense of alienation among the people of the state, particularly in the Muslim-majority Kashmir valley. The apologists for Article 370 argue that the provision has nothing to do with laws pertaining to permanent residents of the state. There cannot be a more fallacious argument than this.
The Constitution (Application to Jammu & Kashmir) Order, 1954, says, ‘In exercise of the powers conferred by Clause 1 of Article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir, is pleased to order … (j) After Article 35, the following new article shall be added, namely:— “35A. Saving of laws with respect to permanent residents and their rights.— Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,— (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects— (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.” ’
It was under this article that Jammu & Kashmir was allowed to formulate discriminatory laws for its residents as against the fundamental rights guaranteed to the citizens of India.
Another outrageous argument dished out is that that Jammu & Kashmir laws violate the fundamental rights of Indian citizens since Jammu & Kashmir has a separate constitution. However, this is happening not due to the state having a separate constitution, but because the state had been allowed by the Government of India to violate the rights of the citizens of India and the provisions contained in articles like Article 16. Under the cover of Article 35A of the Constitution of India, the Jammu & Kashmir Constituent Assembly incorporated discriminatory sections in the state constitution, like Section 51 (pertaining to candidature for the state legislature), Section 127 (pertaining to employment in the state government institutions) and Section 140 (pertaining to voter eligibility for assembly elections).
Thus, the power of Parliament to enact law under various articles, including Article 16 and Article 19, was handed out on a platter to the Jammu & Kashmir Constituent Assembly and Legislature under Article 35A. Also, the property rights of Indian citizens who do not hold permanent resident certificates of Jammu & Kashmir have been done away with in a very concealed manner by making reference to existing laws coming from the Maharaja government.
There are other equally important issues, like women’s rights, etc., which are also at stake. While the abrogation of Article 370 may not be immediately possible, it is important that the nation debates this issue extensively and does not dismiss it merely as a Hindutva agenda.