Should Article 370 abrogated?!

Facts

Any discussion on Article 370 would be incomplete without a glimpse into its history. When the Indian subcontinent was partitioned into the two nations of India and Pakistan along religious lines, the princely states-over 650 in number, had the choice of opting to be part of either India or Pakistan. Maharaja Hari Singh, the Hindu ruler of the Muslim majority state of Jammu and Kashmir chose to join neither India nor Pakistan. However, when Pakistan sent in Muslim Tribesmen into Srinagar, the Maharaja had no choice but to seek military assistance and aid from India. On October 26,1947, he signed the Instrument of Accession(IOA),ceding Jammu and Kashmir to India. Originally, Kashmir had acceded only the three matters of defense, foreign affairs and communications to India.

At the time of signing the IOA, another agreement was made wherein Kashmir could have its own constituent assembly for the creation of a separate constitution. As a result the constituent assembly of Kashmir was created in 1951 and a separate constitution was created. Due to the request of the Kashmir Constituent Assembly that only those provisions of the Indian Constitution mentioned in the original IOA should be applicable to Kashmir, Article 370 was drafted (By Gopalaswamy Ayyengar since B.R Ambedkar, the principal drafter refused to do the same). According to this article, articles of the Indian Constitution on subjects not mentioned in the original IOA, would be applicable to Kashmir with the concurrence of the state’s Constituent Assembly.

As can be understood from its title (Temporary provisions with respect to the State of Jammu and Kashmir), Article 370 was meant to be a temporary provision meant to last only till the constitution of Kashmir was formed and adopted. The self-dissolution of the Kashmir Constituent Assembly in 1957 without recommending either abrogation or amendment of Article 370, has led it to become a permanent feature of the Indian Constitution.

Article 370 allowed Kashmir to have its own constitution and thus exempting the State from the complete applicability of the Indian constitution. Only the subjects of foreign affairs, defence and communication could be dealt with by the Centre. Other constitutional powers were subject to the approval of the Kashmir State Legislative Assembly (Even this concurrence was provisional, for it still needed the ratification by the Constituent Assembly) Hence, once the Constituent Assembly dissolved itself in 1956, the state government lost its authority to give concurrence. Both amendment and abrogation of the Article is possible only upon recommendation on the state’s Constituent Assembly.
 

 

Side (Article 370 to be scrapped)

Section 370 was only intended as a temporary measure to restore peace and harmony to the state of Kashmir. It promotes the idea of a Union existing within a Union and is hence against the very spirit of the collective harmony and fundamental unity of the nation. The article is against the dictum of One Nation, One Constitution, One Anthem and One National Flag.

It is contrary to the hallowed principle of Equality before law. All of India should function under one law and in this sense it is perfectly understandable why the principal drafter of the Indian Constitution, Dr. B.R Ambedkar refused to draft Article 370 stating that he did not want to “be a traitor” to the new-formed India. Pt. Jawaharlal Nehru who was the prime minister of the Interim Government at the time tried to persuade him, but he remained resolute in his stand. Under duress, even though the Congress Working Committee unanimously rejected the proposal, Gopalaswamy Ayyengar of the Indian Constituent Assembly drafted the Article, explicitly specifying that it would only be a temporary provision. There is clearly a vested political interest in the fact that this temporary article is still remaining in force even after 70 years of Indian independence.

There is no reason why the constitution of India should not be applicable to the state of Jammu and Kashmir in its entirety since four representatives of Jammu and Kashmir were part of the Constituent Assembly of India, which had drafted the Indian Constitution.

Jammu and Kashmir, can be treated as a part of India both through the preamble of its constitution and through the IOA. Hence, Article 370 leads to the creation of unnecessary doubts among the people of Kashmir and encourages separatist tendencies and movements, backed by Pakistan, further escalating the situation of unrest in Kashmir.

A question which can be asked at this juncture-What has Jammu and Kashmir done with the autonomy they enjoy? The Directive Principles of State Policy and the Fundamental duties are not applicable to Kashmir. Not all fundamental rights are offered to the people of Kashmir. Due to these issues, along with the lack of having a normal relation with the rest of India, the people of Kashmir feel alienated and are more vulnerable to separatist forces

Article 35 A is a result of Article 370 and because of it, people from other states of India cannot go to Jammu and Kashmir and expect to be treated as a citizen of India. This law is very restrictive since does not permit people from outside the territory of Kashmir to purchase property in the state, hence reducing the chances for development and growth of industries. While separatist agitations of the state are much highlighted by media, the protests by the youth of Kashmir against unemployment and less number of jobs is not given attention. The lack of job opportunities to the required extent is indeed a legitimate issue and the fact that the laws make it very difficult for companies and industries from outside Kashmir to operate within Kashmir does nothing to improve the situation. Scrapping of Article 370 and integration of Kashmir with the rest of India can do a lot to reduce the woes of the Kashmiri youth.

Article 35 A further imposes several restrictive provisions such as the violation of the right of a woman to marry a person of choice since heirs don’t have any right to property if the woman marries a man who is not a permanent resident of Kashmir, the violation of rights of SC and ST workers and settlers who have lived in Kashmir for decades(A notable example is the case of the Valmikis who were brought to Kashmir in 1957.These people were given permanent resident certificates on the condition that they and all their future generations continued to be safai-karmacharis aka scavengers. Even after 60 years, their children have been denied the right to quit scavenging and choose any profession of their choice), the fact that children of non-state subjects are not given admission to state colleges etc. to name a few.

Another noteworthy group of supporters of the abrogation of Article 370 besides the BJP are the Kashmiri Pundits who wait for the day they can return to their homelands. Panun Kashmir,a representative body of the migrant Kashmiri Pundits opine that unless the article is abolished, the movement for repeated partitions of India will remain alive and potent.

To conclude with, there is no scarcity of reasons for why Article 370 should be deleted from the constitution of India at the earliest. After all, a fully United India is every true Indian’s dream.

The Flip Side (Article 370 to be retained)

Article 370 of the Indian Constitution provides special status to the state of Jammu and Kashmir. By doing so, it was trying to restore peace to Kashmir, which was in a state of turmoil. The situation in Jammu and Kashmir is still nowhere near perfect, since there is still a state of unrest. This causes a feeling of insecurity to linger and reside in the minds of the people of Kashmir and thus a call to scrap this article would be repressive and an instance of India playing dictatorial politics.

The article in discussion gives a special identity to Kashmiris, who are indeed a unique population and hence a move to remove it from the Constitution of India, thereby causing it to not be legally valid anymore, is not going to go down well with the people of Kashmir. There is sure to be a lot of bruised egos and it will not be an easy task to deal with the same. It will also lead to feelings of ill-will towards India and people from other Indian states.

Unlike Article 369 (also temporary)which specifies a time frame within which it will lapse, no deadline is mentioned under Article 370.Hence,the premise that it is a temporary law and hence should be scrapped, is not really sound since there is no explicit definition of “temporary” under this article.

Additionally under Article 370(3), the provisions for amendment or abrogation of the Article are clearly stated. It can be done by the president of India on the recommendation of the Kashmir Constituent Assembly. However, this is not even legally possible since the Constituent Assembly of Jammu and Kashmir dissolved itself way back in 1957 and does not exist now.

Back when Nehru was the Prime Minister of the Dominion of India, the Indian government was of the following stand:

In order to avoid any possible suggestion that India had taken advantage of the State's immediate peril for her own political advantage, the Dominion Government made it clear that, once the soil of the State had been cleared of the invader and normal conditions restored, its people would be free to decide their future by the recognised democratic method of a plebiscite or referendum, which, in order to ensure complete impartiality, might be held under international auspices.

[Telegram, dated the 31st December 1947, from Foreign, New Delhi, to Indian embassy, Washington]

However, such a plebiscite has never been held-for ‘normal conditions’ have never been restored till date. Even in the event of a government in Jammu and Kashmir wanting to give its consent to secession of the state, something not permissible under the Constitution of India, the state government would be prohibited under Section 3 of its own constitution to give such consent. Section 147 of the constitution of Jammu and Kashmir accepts Article 370 of the Indian Constitution and prohibits any amendment of Section 3, which is a basic feature of the state constitution. Thus, holding of a plebiscite would be repugnant to the constitutions of India and Kashmir.

Another feature of Article 370 is that an amendment of Indian Constitution becomes applicable to Kashmir only after the president issues and order stating the same. Hence, without the clause, there can be no possibility for events like reservation in promotions for Government employees in Kashmir (Clause 4A of article 16, introduced by the Indian constitution by the 77th amendment to protect reservations in promotions, was not applicable to Jammu & Kashmir)

High courts and the Supreme Court have reiterated the validity of Article 370 in the Constitution of India. It is important-as the courts have recognised, to allow the president the power to issue orders making several laws and provisions of the Indian Constitution applicable in Kashmir too. Article 370 protects this power.

Article 370 is of much importance and scrapping it will weaken the special status enjoyed by the state of Jammu and Kashmir. Even the Kashmir Committee is of the same view explaining that the demand for abrogation of this constitutional provision must be abandoned since it not only fails to serve any significant Indian interest, but also causes unnecessary suspicion in the people of Kashmir.

Since the princely state of Jammu and Kashmir never signed the Instrument of Merger besides the Instrument of Accession unlike the other princely states, Article 370 is the only link between India and Kashmir. Doing away with the article would hence result in separation of the state from India. Though the state already has its own constitution, separate flag and state government, whether it is ripe enough to break off from the huge tree that is India is debatable.

About the Author

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Riya Santhosh loves coffee, cats and friendly pet roosters.

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