Article 370 has been in the news for several year. The Constitution of India came into force on 26 January 1950 and with it, this unique provision Article 370. It is a temporary provision with respect to the state of Jammu and Kashmir. The Article 370 was clearly meant to be a temporary provision included in the Constitution to cater for the specific requirements of the troubled times immediately after India’s independence and the state’s accession to India. It was meant to remain in operation during the existence of the State’s Constituent Assembly. In this essay I would explain, what is this article 370? The significance of the article, implication of this article, impact of this article. I will cover the period from 1946 to 2010.
Key words- Constitution of India, article 370, implication, provision.
INTRODUCTION- The Instrument of Accession of Jammu and Kashmir to India was signed by the Maharaja Hari Singh in October, 1947 and a special status was given to the State through the Article 370. Article 370 is a special clause in constitution of India, a prize that was extracted out of India in 1950 by Sheikh Mohammed Abdullah for throwing his lot with India, after lengthy negotiations with Indian leaders. Article 370 made Jammu and Kashmir a country within a country, with its own flag, emblem, constitution and Sadr-i-Riyasat (Prime Minister). The architect of the Indian Constitution, Dr. Ambedkar, opposed granting Article 370 but it was on India’s first Prime Minister Jawaharlal Nehru’s insistence and personal guarantee that it was granted to the state. Article 370 also opposed by right wing parties like BJP, Shiv sena, Akali dal etc., brazenly threatens the nationalistic stature of unity of India. Jammu Kashmir is the only state of India that has its separate flag. Article 370 has built emotional and psychological barriers between the people of Kashmir and the rest of India, thus fostering a psychology of separatism. 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. The wordings of Article 370 and its title “Temporary provisions with respect to the State of Jammu and Kashmir” are both significant as they imply that it was designed as a temporary or provisional arrangement. Thus, among the main aims of granting a special status were, (a) to ensure the Kashmiris that their distinct identity would be preserved and (b) to placate the Muslims of the Valley who were felling uncertain over their future.
HISTORICAL BACK GROUND OF ARTICLE 370-
Historical aspect When India and Pakistan gained their independence on 15 and 14 August 1947, respectively; J&K chose to remain independent. There was an agreement by J&K with Pakistan and India that none of them will attack J&K. While India respected the agreement and exercised restraint, Pakistan attacked Kashmir in a bid to annex it by force. On 6 October 1947, Kashmir was attacked by “Azad Kashmir Forces” supported by Pakistan. To save J&K, Maharaja Hari Singh (the then ruler of J&K) chose to accede J&K to India. In October 1947, the accession was made by the ruler in favour of India in consideration of certain commitments made by Pt. Jawaharlal Nehru (the then Prime Minister of India). It was in the pursuance of those commitments that Article 370 was incorporated in the Constitution.
The Ruler of Jammu and Kashmir signed the instrument of accession whereby only three subjects were surrendered by the State to the Dominion of India. External affairs Defence and Communications The State enjoys a greater measure of autonomy and the power of the Union of India is restricted, as regards other States. Article 370 is a special clause in Indian Constitution, a prize that was extracted out of India in 1950 by Sheikh Mohammed Abdullah for throwing his lot with India, after lengthy negotiations with Indian leaders. Article 370 made Jammu and Kashmir a country within a country, with its own flag, emblem, constitution and Sadr-i-Riyasat (Prime Minister). The architect of the Indian Constitution, Dr. Ambedkar, opposed granting Article 370 but it was on India’s first Prime Minister Jawaharlal Nehru’s insistence and personal guarantee that it was granted to the state. Article 370 specified that except for Defence, Foreign Affairs and Communications, the Indian Parliament needed the State Government’s concurrence for applying such laws to Jammu and Kashmir as did not fall under the heads of Defence, Foreign Affairs and Communications. Parliamentary laws pertaining to these three subjects required consultation with the J&K State Government. Over the years, this procedure was followed to bring the state under the purview of Article 356, the Supreme Court, the Election Commission, the Comptroller and Auditor General, thus providing some level of order in the state. Article 370 was temporary arrangement. The Constituent Assembly was dissolved in 1957 prior to the first State Assembly elections and after it ratified the state’s accession to India and framed the state’s constitution adopted on 17th November and coming into full force from 26thJanuary 1957. WHAT IS THERE IN ARTICLE 370? – Original Article 370 (without amendment) 1. notwithstanding anything in this Constitution: a. the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir, 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. IMPLICATION OF ARTICLE 370- This article specifies that except for Defence, Foreign Affairs, Finance and Communications,(matters specified in the instrument of accession) the Indian Parliament needs the State Government’s concurrence for applying all other laws. Thus the state’s residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
the citizens of J&K are citizens of India, but citizens of the rest of India cannot be citizens of J&K!!!! He/She does not have a right to any property in J&K. He/She does not have the right to vote in J&K, even if one has migrated there. The Urban Land Act 1976, which is in force across the whole of the country, is not applicable to J&K. This means, all the rich landlords, belonging to the majority community in J&K, can freely indulge in economic exploitation of the poor. The Indian citizens, who are not state subjects, & living in J&K, cannot even get loans & financial aids from various institutions, as the State Laws debar them. If a girl, belonging to J&K, marries a boy who is not a state subject, she loses her all her rights to the state!!!!! The Wealth Tax cannot be enforced in the state. The State Govt did not accept the Anti – Defection Law, adopted by the rest of the country, & brought in several amendments.
Our Constitution gives equal rights to all citizens, but this right is not applicable in J&K. It is a case of Locals vs non Locals who are not state subjects. They do not enjoy any political or economic rights. Their children cannot get admission in colleges in Kashmir. In other words, Article 370 violates the very principle of Indian Citizenship The vested interests in Kashmir, be these politicians, bureaucracy, businessmen, judiciary, etc., have misused Article 370 for their own nefarious purposes, by exploiting the poor and the down-trodden people of the state. The rich have consistently used Article 370 to ensure that no financial legislation is introduced in the state, which would make them accountable for their loot of the state treasury. These include the provisions dealing with Gift Tax, Urban Land Ceiling Act, Wealth Tax, etc. This has ensured that the rich continue to grow richer and the common masses are denied their legitimate share of the economic pie. Article 370 has also helped create power elites and local Sultans, who wield enormous power, which they use to trample upon the genuine demands of common people for public welfare. As no outsider can settle in the state and own any property there, the politically well-connected people stand to gain enormously. It is these influential people who make the rules, decide the price and determine the buyer, since any competition from an outsider is completely ruled out. The fact is that Article 370 is the only legal window through which the Republic of India maintains its territorial link with J&K and extends it jurisdiction to the State. To scrap this special provision would mean reverting to the Instrument of Accession. Such reversion would merely offer an opportunity to the secessionists in Kashmir to demand a plebiscite and proved further ground to those seeking to internationalize the issue. After Kashmir’s accession, this state was permitted to enjoy two special rights – a separate Constitution and retention of Kashmir State subject laws, in vie the unusual historical circumstances leading to the accession.
The continuation of Article 370 under whose cover the state of Jammu & Kashmir enjoys a special status, is totally unjustified and it is within the power of the President of India to make it inoperative. An Indian citizen who is an ordinary resident of Jammu & Kashmir is not allowed to contest elections there. Does it not show that Jammu & Kashmir has become virtually an oligarchic state?
There was no question of retaining Article 370 in the Constitution after the Constituent Assembly acting on behalf of the people of Jammu & Kashmir finally decided that Jammu & Kashmir was an integral part of India.
The matter ended there for good and the only task left before the Centre was, and still is, to amend the Constitution for abrogating Article 370 and to repeal the constitution of Jammu & Kashmir which grants special status to that state. There are two options for the abrogation of Article 370-
The first option is to invoke Presidential power exercisable under that Article itself. Article 370 lays down: “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 enforce the President issues such a notification.”
The consent of the Constituent Assembly of the state of Jammu & Kashmir for the exercise of the Presidential power is not required because the said Constituent Assembly is no more in existence.
The other efficacious remedy is to abrogate Article 370 and declare the constitution of Jammu & Kashmir null and void being ultra vires the Constitution of India by amending the Constitution under Article 368 read with Article 13(2) and Article 355. Section 18 of the Indian Penal Code framed by Macaulay doesn’t regard the state of Jammu & Kashmir as a part of India. It says: “India” means the territory of India excluding the state of Jammu & Kashmir. Why has not this utterly false, unlawful and objectionable section been repealed by the Indian Parliament as yet?
The continuance of this section speaks to the ignorance, selfishness and callous indifference of politicians in power to the interests of our nation.