Under the shadow of Article 370

By Adarsh Aravind

In his book Kashmir Behind The Veil, author MJ Akbar argued how in the deepening shadows of a bitter partition, Kashmir gave a ray of hope. He says how Kashmir guards the frontiers of ideology and that India cannot lose in her Kashmir. Recent events are a pointer to the fragile relationship India has with her Kashmir. This article is a reality check of the state breathing under ‘autonomous status’ which has an indirect impact on the lack of nationalism and rise of separatist tendencies among the population. Article 370 is an exceptional temporary provision in the constitution of India which allows special status to the state of Jammu & Kashmir. This article is labelled in the Part XXI of the Indian constitution, which deals with ‘Temporary, Transitional and Special provisions’. Article 370 checks the parliament of India from taking decisions regarding to Jammu & Kashmir without the correspondence of the state government. But the parliament can make and apply decisions in the state when it comes to provisions like defense, foreign affairs, communication etc. The parliament is also restricted from modifying the borders of the state. The state of Jammu & Kashmir has a special constitution and thus special set of laws, its own flag and an anthem. Article 370 can be said as a document which binds India with Jammu & Kashmir state which came under India’s administrative control after the 15-month long war against Pakistan in 1947.[1] Article 370 has played no less a part in preventing J&K from becoming an ‘integral part of the Indian Union’ and it prevents the government of India to intervene into the state’s internal affairs. The constitution of India came into force on 26^th January 1950 and Article 370 was included with it. So it is over 65 years old now, and over this time it has turned into one of the most controversial provisions in the Constitution of India. Therefore, it’s vital to know the social, political and economic scenario of Jammu & Kashmir which is breathing under the umbrella of Article 370.

The Genesis

Article 370 is perhaps one of the most controversial articles in the constitution of India started facing hubbubs and criticisms during its drafting itself. To know the characteristics of Article 370, one should go back to the British rule period. During the British rule, the Indian subcontinent was divided into two regions. British India, the parts ruled by the British rulers directly which consisted about 60% of the total land. And the remaining 40% was a collection of 562 princely states which was ‘Indian States’ according to the British rulers. All the princes of these princely states in ‘Indian India’ enjoyed full control in internal matters under the supremacy of the British crown. But the British had control over some aspects mainly defense, foreign policy, and communications. The British gave protection to all these states from foreign attack and intervention by camping the British forces in each capitals under the control of a British resident. At the same time, the British residents in each capital also kept the rulers in line and collected tax for protection of the state.

While coming to the state of Jammu and Kashmir, in 1846, under the treaty of Amritsar, the state was transferred to Maharaja Gulab Singh granting full authority over his territory. But an annual payment had to be paid by the king to the British for the protection of Jammu & Kashmir from foreign attacks. But there was a provision in the treaty which allows the British to appoint a resident who have influential powers. By using that loophole, British continued to influence the future rules of Jammu & Kashmir. On 20^th February 1947, after the announcement of Independence, the plan was set to create two dominions, the dominion of India and the dominion of Pakistan. According to the cabinet mission policy which was proclaimed on 12th May 1946, the powers surrendered to the British crown would get returned back to the princely states. Lord Mountbatten on 25th July 1947 while addressing the chamber of princes, advised the princes to accede to any dominions although they became legally independent. Before distributing the draft of the instrument of accession, he also presaged the princes that, the states will be imposed with sanctions if they decide to stay independent. The states were given three choices. 1) To accede to the dominion of India, 2) To accede to the dominion of Pakistan, 3) To stay independent without joining either of the dominions. As expected, most of the princely states were interested in joining India and only 14 states showed their affinity towards Pakistan.[2] By the day of independence, Sardar Vallabhai Patel successfully united almost all princely states to the dominion of India except 3 states. They were Junagadh, Hyderabad and Jammu & Kashmir. Later Junagadh and Hyderabad joined the dominion of India after numerous events and exertions, and the one left was the state of Jammu & Kashmir.

Jammu & Kashmir was a state with distinct demographic features and Muslim majority though the state then was ruled by a Hindu ruler, Maharaja Hari Singh of Dogra dynasty. Hari Singh decided to remain as an independent state instead of joining either dominions, which later proved to be one of the biggest political slipups of that time. The amity in Kashmir vale ended in 2 months after the British withdrawal. A group of 5000 tribesmen infringed to Kashmir through the western borders from Pakistan. The Pakistani army started attacking, prowling, raping and they were nearing Srinagar. Maharaja Hari Singh got panic and he begged to India for help. He wrote a letter to the Governor General of India, Lord Mountbatten seeking help and the letter was attached with the signed instrument of accession on October 26, 1947. Lord Mountbatten accepted the instrument and thus Jammu & Kashmir was acceded to the dominion of India. By this instrument accession, all the powers which were surrendered under the British crown, i.e., defense, foreign affairs and communication, officially got transferred to the central authority of India.

The factor which made the state of Jammu & Kashmir different from other states was, they chose to have their own constitution. When the rulers and officials of all states recognized constitution of India which is going to be operative in their states, Jammu & Kashmir took a different stand. The representatives of Jammu & Kashmir in the constituent assembly claimed that, according to the clause 7 in the instrument of accession, the states were ‘not loyal or compulsory to accept the constitution of India’. Instead they chose to have a different constitution. This situation created a blockade to the vision of an integrated India and an integrated constitution. This lead to extensive discussions and debates in the constituent assembly. But as the situation was delicate and touch frosty, the constituent assembly was forced to give an exception to the state of Jammu & Kashmir and they made a special provision in the constitution of India giving special exception to the state of Jammu & Kashmir. It gave birth to Article 370.

In the constituent assembly, the discussion about giving exception to the state of Jammu & Kashmir was placed as article 306-A. This discussion was initiated by Gopalaswami Ayyangar and the special provision to Jammu & Kashmir was added to the constitution of India as Article 370. On 15 February 1954 the state of Jammu & Kashmir made it clear in their state constitution that the state will be an integral part of India. And this provision was made ‘unamendable’ in future according to section 147 of the constitution. Unlike other states, as J&K chose to have a separate constitution, the powers which can be enjoyed by India got limited to defense, foreign policy and communications according to the instrument of accession.

On 8^th August 1953 Sheikh Abdullah got dismissed from the prime minister post reproving that he lost the confidence in the cabinet. He immediately got arrested accusing him on the Kashmir Conspiracy Case and jailed for eleven years. Pandit Jawaharlal Nehru was the mastermind behind this arrest. On 8^th April 1964 he got released from jail as the state dropped all cases against him. For the next one decade he was away from front politics and was in exile for 18 months after Nehru’s death. After the Bangladesh war, Sheikh Abdullah who analyzed the alarming events happening in the region started talks with Indira Gandhi for normalizing the situation of the region and came to ‘1974 Indira Sheikh Accord’ giving up the plea for plebiscite. Sheikh Abdullah came to power after 11 years by becoming the Chief Minister of Jammu & Kashmir. The Indira – Sheikh accord of 1974 was a milestone in the history of Jammu & Kashmir.[3]

The text of Article 370

370. Temporary provisions with respect to the State of Jammu and Kashmir.

” (1) Notwithstanding anything contained in this Constitution,—

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;^[a]

(b) the power of Parliament to make laws for the said state shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”[4]

An Autonomous Region in India

Article 370 offers mainly six provisions for the state of Jammu & Kashmir. The First provision allows the state of Jammu & Kashmir to have a special constitution and exempts the state from provisions of the constitution of India. The second provision describes that the powers of the Parliament’s legislative authority over the state of Jammu & Kashmir is limited to defense, foreign policy, and communications. ‘Concurrence’ of state is not needed to take decisions and actions on these subjects. Only ‘consultation’ is needed as the state had already recognized the instrument of accession. But for other powers in the union list, the parliament needs the concurrence of state government, which is explained in the third provision in Article 370. The fourth provision labels that the process of concurrence is austerely provisional. The fifth provision explains that the state government’s authority for concurrence is valid only till the constitutional assembly of Jammu & Kashmir is assembled. And the sixth provision allows the president to amend the article with the recommendation of the constituent assembly.[5] All these provisions combined to form an umbrella which protects the state of Jammu & Kashmir from losing its self-governance. Under the canopy of article 370 and the constitution of Jammu & Kashmir, the state enjoys freedom in many facets unlike other states. The people are living under a separate set of laws. They are,

• The state has a separate constitution, flag and an anthem
• The citizens of the state have dual citizenship. i.e. citizenship of India and citizenship of Kashmir
• Even if the Hindu population is the minority group in Jammu & Kashmir, they don’t have minority rights.
• The state has the authority to decide the permanent residents of the state.
• A lot of rules are created against the non-permanent residents and the other Indians.
• Those who are not citizens of Jammu & Kashmir cannot purchase any immovable property in the state
• They will not get state government jobs
• They cannot become a member of a village panchayat and they cannot vote in the state legislative assembly elections [6]
• Prior permissions should be taken before hoisting the Indian flag and the state flag should be hoisted along with the National Flag.
• Insulting the national symbols is not considered as a serious offence in Jammu & Kashmir
• If a woman marries a non-permanent resident of Jammu & Kashmir, she loses her citizenship of Jammu & Kashmir
• According to Article 370, parliament cannot change the borders of the state.[7]
• It is a public secret that women of Jammu & Kashmir lives under Sharia Laws due to social circumstances even if the state doesn’t recognize it.[8]

Proponents of article 370 argues that this was crucial for the security of the state and the Muslim majority of J&K. Considering the real estate restrictions, if the non-residents were allowed to buy and manage properties in Kashmir, a huge crowd of people from different parts of the country would have glided to buy properties in that beautiful region. This could damage the highly sensitive nature and ecosystem of Kashmir valley. Its blind removal might also lead to public protests and separatist ferocities asking for disintegration. The special status of Jammu & Kashmir also favors them in getting aid from central government. As a part of the central government’s effort to increase influence in the state of Jammu & Kashmir, the state is getting fair amount of aids continuously. This is why Jammu & Kashmir can be said as a ‘pampered’ state. In 2009 – 2010 period, Jammu & Kashmir got 13,252 crore Rupees as fund from the central government on India. This amount comes up to 60% of the state’s total outflow. Between the period of 1989 and 2010, Jammu & Kashmir got a total of 94,409 crore Rupees fund from the central government of India.[9] And in 2014 the Prime Minister of India, Narendra Modi announced a 1000 crore rupees in September[10] and 745 crore in October[11] as a rehabilitation aid for the state of Jammu & Kashmir. Also there are undisclosed reports from New Delhi that central government is planning for a huge development package in Jammu & Kashmir.[12] In an interview with Jagmohan, the former governor of Jammu & Kashmir, he elucidated numerous facts about Jammu & Kashmir. He said,” The poorest State in India is Bihar, but today Kashmir gets 11 times more Central assistance than Bihar. If ‘self-rule’ means self-sufficiency, all this support from the Central government will stop. But the problem is that nobody, none of the Kashmiris leaders will tell you this. If you ask them, they will say, “the finances will come”, but they will remain vague. That is for development.”[13] Jammu & Kashmir today is the most subsidized state in India. This itself shows the amount spent by the central government in Kashmir and the autonomous status for Jammu & Kashmir is playing a major role in this.

But the negative facets of Article 370 should also be bought into limelight. The need for a special status to Jammu & Kashmir is always questionable if the state is considered as an integral part of India. Article 370 contradicts the notion of ‘freedom of movement and settlement’ in the nations territories which is guaranteed by the constitution of India. The real estate restrictions in the state also resulted in the monopoly of few business houses in Jammu & Kashmir. No major, medium or small private firm can invest there, which creates an influx of investments. Due to the socialistic nature of government, the economy has also turned out to be a socialist economy which made J&K one of the worst performing economies in India. While all the other states in India are reaping the benefits of capitalism and global market, the socialistic culture and Article 370 is crippling the economy of Jammu & Kashmir. Due to the high unemployment rate and lack of good education system, the state is also going through innumerable complications like migration and brain drain which leads to deficiency in human resources which can make the ailment of Jammu & Kashmir’s economy worse. These outdated economic policies are in the interest of some high class people in Kashmir who took advantage of Article 370 to gain monopoly over the state’s economy. One of those people was Sheikh Abdullah himself who was a power loving personality. He exploited article 370, not allowing external investments and allowed his family to create their own ‘sheikdom’. [14]

According to Mr Arun Jaitley, the finance minister of India, “Article 370 hampers the progress of the state in many ways.”[15] So, Article 370 should be modified or abrogated and the ideology of Kashmir’s economy should be changed in no time to save the citizens of Jammu & Kashmir from poverty and migration. To continue as a permanent resident of J&K and to enjoy exclusive rights, one should marry a permanent resident of the state and the women are not allowed to own property.[16] The Sharia customs prevailing in J&K is another major issue which is not publicized due to the clandestine support of the state government of J&K. According to Article 370, the central government have no right to take actions in these issues.[17] The discriminations faced by the Hindus in the Kashmir valley is another vital subject to converse about. The Pandits of Kashmir, also known as Kashmiri Hindus are facing brutal discriminations, attacks and forced conversions in the state of Jammu & Kashmir. After 1947 when the whole nation started enjoying religious equality and secularism, the state of Jammu & Kashmir was turning into a state which nurtures Islamic fundamentalism. With the support of Article 370, state authorities always used to exclude the Hindus from all ‘state stuffs’ including politics, economy, society etc.[18] According to article 370, the minority rights of India are not applicable in the state of Jammu & Kashmir and the parliament have no voice on this. The Jammu & Kashmir state did several astute acts in the state to prevent the rise of Hindu community. The state combined the Hindu majority districts with Muslim majority districts so that no Hindu will ever get elected to the state assembly. In academic institutions, the admission for Hindus is circumscribed perceptively to stop Hindus from getting educated. According to the reports available, the percentage of Hindu students studying in the state schools of Jammu & Kashmir is just two to eight percent of the total seats.[19] This ‘anti-Hindu and pro-Muslim’ approach of the state government had direct impact on Jammu & Kashmir’s economy in such a way that, the 95% of Jammu & Kashmir’s total business outlets are in Islamic hands. So the misuse of article 370, helped the Muslims to dominate in every domains of Jammu & Kashmir’s society. Central investigation crews are not always permitted in J&K and the state is not in the array of Indian penal code. Jammu and Kashmir uses a different penal code known as Ranbir Penal Code (RPC) which was introduced during the rule Ranbir Singh of Dogra Dynasty.[20] Bharathiya Janata Party argued that Article 370 can be ‘comparable to the Berlin wall’ which separates the state from other parts of the nation ideologically, economically, culturally and politically.[21]

Provisions for Modification or Repeal

Numerous debates and arguments are taking place in the country recently on the relevance of article 370. The need of a special status and a separate constitution for an ‘integral part of India’ is questioned all over the nation. The whole debate on article 370 can be understood only through article 368. Article 368 allows the parliament of India to amend the constitution keeping its basic structure intact. The parliament has the authority for addition, repeal and modification of any provisions of the constitution. But the amendment procedures vary from category to category. According to the norms, parliament can amend article 370 by following the specific amendment processes or remove that temporary article completely. But this is not an easy task like other temporary provisions. Because, the clause A370 (3) says,

            “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”[22]

The mention of ‘Constituent Assembly’ which is not existing now creates a mix-up. This clause means either two of the following

1. As the constituent assembly is not surviving currently, its recommendation is not needed and thus the parliament of India can amend article 370 through the President of India.
2. Considering legislative assembly as an equivalent to the constituent assembly, the recommendation of legislative assembly is needed for amending article 370. So the parliament is required to seek the recommendation of the legislative assembly to amend the article.

The Jammu & Kashmir High court on 11^th October 2015 made a statement that article 370 ‘cannot be abrogated in any circumstances’. Article 370 has gained immovability when the constituent assembly got dissolved. The high court said that Article 370 is beyond “amendment, repeal or abrogation”.[23] Though it’s a temporary provision in the constitution, it is permanent in its characteristics. According to the clause A370 (3), the president can amend the article only with the recommendation of the constituent assembly, which got dissolved in January 25, 1957 and the constituent assembly has never made a recommendation to repeal the article before its dissolution.[24] So one of the possibility for abrogation of article 370 is by creating a new constituent assembly for the state of Jammu & Kashmir and that constituent assembly should recommend to repeal the constitution. But, albeit a new constituent assembly is formed it may still generate questions as Article 370 says about the first constituent assembly which got dissolved in January 25, 1957. Many law experts are pointing out that, even if a new constituent assembly is formed, that cannot replace the old one. Nevertheless, this is one of the few possibilities to amend article 370. Another possibility is the blind repeal of the article directly by the President of India, which may subject to judicial review and the court intervention. Though Article 1 of the constitution of India which explains the union of India covers Jammu & Kashmir, Article 370 says, ‘Article 1 is seen through article 370’. So blind repeal of article 370 may question Article 1 and can lead to the interrogation of the instrument of accession and thus, touching article 370 should be done with utmost care and inclusivity. It is necessary to develop nationalism among the population of Jammu & Kashmir to suppress the separatist tendencies and an exclusive provision like Article 370 will always stay as a blockade for the spread of nationalism in Kashmir valley. For the development of Jammu & Kashmir on par with other Indian states and to spread the idea of nationalism in Kashmir valley, the citizens of the state should be influenced politically, economically, culturally, and ideologically. And Article 370 which persists as a blockade to this should either be repealed or modified. The central government should approach towards it with extreme care as it can lead to severe consequences and can even cause the disintegration Jammu & Kashmir from India.

References:

1. Lavakare  Arvind, The Truth about Article 370 (Rambhau Mhalgi Prabodhini: Mumbai, 2005), p. 7
2. Ibid
3. “Sheikh Abdullah”, Wikipedia, See https://en.wikipedia.org/wiki/Sheikh_Abdullah#Prime_minister, Accessed on 9 December, 2015.
4. “Constitution Of India”, Ministry of Law and Justice, Government of India, 2015, http://lawmin.nic.in/coi/coiason29july08.pdf
5. A G Noorani, “Article 370: A Constitutional History of Jammu & Kashmir”, (Oxford University Press, New Delhi, 2011)
6. n. 1, p. 48
7. Pravin Singh, “Article 370: Facts you should know”, OneIndia, 19 August, 2014, See http://www.oneindia.com/feature/article-370-facts-you-should-know-1505275.html, Accessed on 9 December 2015.
8. Shikhar Jiwrajka, “Article 370: All you want to know about the controversial article that gives Jammu & Kashmir special status”, India, 28 May, 2014, See http://www.india.com/loudspeaker/article-370-all-you-want-to-know-about-the-controversial-article-that-gives-jammu-kashmir-special-status-66117/, Accessed on 9 December 2015.
9. Ayushman Jamwal, “The Article 370 debate: Why are the Kashmiri parties spooked?”, IBN Live, 31 May, 2014, See http://www.ibnlive.com/blogs/india/ayushman-jamwal/article-370-3-11302-748475.html, Accessed on 9 December 2015.
10. IANS, “PM Narendra Modi announces Rs 1,000 crore aid for Jammu and Kashmir”, The Economic Times, 7 September, 2014, See http://economictimes.indiatimes.com/news/politics-and-nation/pm-narendra-modi-announces-rs-1000-crore-aid-for-jammu-and-kashmir/articleshow/41944638.cms, Accessed on 9 December 2015.
11. “PM Modi Declares 745 Crore Aid for Jammu and Kashmir”, 24 October, 2014, See http://www.microfinancemonitor.com/pm-modi-declares-745-crore-aid-for-jammu-and-kashmir/19394, Accessed on 9 December 2015.
12. Suhasini Haidar, “J&K to get a huge development package”, The Hindu, New Delhi, 12 July, 2015, See http://www.thehindu.com/news/national/modis-outreach-jammu-kashmir-to-get-a-huge-development-package/article7411822.ece, , Accessed on 9 December 2015.
13. Claude Arpi, “Article 370 is a very misconceived Article”, Indian Defence Review, 28 May, 2014, See http://www.indiandefencereview.com/interviews/article-370-is-a-very-misconceived-article/, Accessed on 9 December 2015.
14. Ibid
15. “Article 370 doing more harm than good to people of J-K: Arun Jaitley”, The Indian Express, 22 July 2012, See http://archive.indianexpress.com/news/article-370-doing-more-harm-than-good-to-people-of-jk-arun-jaitley/977917, Accessed on 9 December 2015.
16. Amitabh Matoo, “Understanding Article 370”, The Hindu, 6 December, 2013, See http://www.thehindu.com/opinion/lead/understanding-article-370/article5426473.ece, Accessed on 9 December 2015
17. Ibid
18. Sunil Fotedar, Subodh Atal and Lalit Koul, “Living Under the Shadow of Article 370”, Kashmir Herald, January, 2002, v. 1, n. 8, See http://kashmirherald.com/featuredarticle/article370.html, Accessed on 9 December 2015.
19. Ibid
20. “Ranbir Penal Code”, Wikipedia, See https://en.wikipedia.org/wiki/Ranbir_Penal_Code, Accessed on 9 December 2015.
21. Ibid, p. 19
22. n. 9
23. Majid Jahangir, “Article 370 can’t be changed, abrogated: J&K High Court”, The Tribune, 12 October, 2015, See http://www.tribuneindia.com/news/jammu-kashmir/article-370-can-t-be-changed-abrogated-j-k-high-court/144930.html, Accessed on 9 December 2015.
24. Bashaarat Masood, “Art 370 permanent…cannot be repealed or amended”, The Indian Express (New Delhi), 12 October 2015