Article 370 and its Relevance Today
ELECTIONS TIME IN A democracy are sensitive. Controversial issues get raised, and challenged. If that leads to emotional debates, old scars get uncovered and the healing process is further delayed. When the Bharatiya Janata Party (BJP) called for removal of Article 370 in its general election manifesto, there were strong protests from their rivals and in the Jammu and Kashmir (J&K) Valley. Political parties in J&K were quick to take up cudgels with the new NDA Government as this gave them a rabble-rousing issue for exploitation in the forthcoming state elections. The main issue now is how to handle Article 370 in the coming years. But before that, it is necessary to understand how Article 370 came about and what its real status is today.
The State of J&K joined India as per the Instrument of Accession signed on October 26, 1947. When the Constitution of India was being framed, the Maharaja of J&K issued a proclamation on November 25, 1949, stating: “That the Constitution of India shortly to be adopted by the Constituent Assembly of India insofar as it is applicable to the State of J&K, govern the constitutional relationship between this state and the contemplated Union of India and shall be enforced in this State by me, my heirs and successors in accordance with the tenor of its provision; that the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other provisions inconsistent therewith which are at present in force in this State.”
This proclamation makes it clear that there were no pre-conditions from the Maharaja of J&K or from Sheikh Abdullah, then Prime Minister, when J&K acceded to India.
Then why was Article 370 added to the Constitution of India? Evidently, Sheikh Abdullah thought about it after November 1949. He was able to convince Pandit Nehru who was known for his idealist and romantic notions about Kashmir and several other tribal border states. Nehru did not want culture and traditions of the people of these states to be disturbed. However, when viewed strategically through hindsight today, that notion has been responsible for the delay in the integration of these states with the rest of India.
Experts justifying Article 370 give two other important reasons: (i) it was politically expedient to establish credibility of secular India wherein a Muslim majority state could enjoy same status and privileges as the rest of India (thus trashing the ‘two nation’ theory), and (ii) to avoid international pressure due to the self-inflicted wound of taking the J&K issue to the United Nations which had passed the plebiscite resolution. It would have been difficult to win the plebiscite in J&K-if that was to be heldwithout the support of Sheikh Abdullah.
In my view, the Government of India made two strategic errors in 1948-49; unnecessarily taking J&K issue to the United Nations in January 1948 when the India-Pakistan war was going in our favour, and including Article 370 in the Constitution despite strong opposition from Dr Ambedkar and some other members of the Constituent Assembly.
Article 370 defined the special status of the J&K State in the Union of India and specified that except for defence, foreign affairs, communications and ancillary matters (as specified in the instrument of accession), the Indian Parliament needed concurrence of the State Government for applying all other laws. The Article was inserted as a ‘temporary provision’, to be replaced as and when ‘the wishes of the people of J&K had been ascertained on the larger issue of merger.’ It must be noted, however, that Article 370 notwithstanding, Article 1 of the Indian Constitution made it abundantly clear that J&K was/is an integral part of India.
The J&K State held its first elections along with rest of India in October 1951. Sheikh Abdullah’s party won all 75 seats in the assembly. Before working on a J&K Constitution, he negotiated ‘The Delhi Agreement 1952’ with New Delhi. This Agreement permitted the State to have a distinctive identity under its own Constitution, flag, and nomenclature of its Chief Minister and Head of the State. This agreement also brought the State under limited jurisprudence of the Indian Constitution and appellate jurisdiction of the Supreme Court of India. A provision for taking over governance in the eventuality of breakdown of law and order was discussed but could not be finalised due to difference of opinion.
In 1953, Sheikh Abdullah did a volte-face on his relations with India. He attempted to balance greater autonomy for the State and finality of accession with India. This obviously was not acceptable. The Sheikh had to be arrested on charges of ‘inciting communal disharmony; fostering hostile feelings towards India and treasonable correspondence with foreign powers.’ These events sowed fresh seeds of alienation among the masses in J&K till he returned to power in 1974.
Meanwhile, in February 1954, the Constituent Assembly of J&K confirmed the legality of its accession to India and the State accepted the new bi-cameral Constitution which became operational on January 26, 1957. It allowed full jurisdiction of the Supreme Court and the Comptroller and Auditor General, thereby further cementing the ties of the State with the Union of India. In terms of Centre–State fiscal relations, the State was brought at par with all other Indian states.
Since then, a series of Presidential Orders have eroded Article 370. In fact, there is virtually no institution of Indian Republic which does not include J&K within its scope and jurisdiction. The only substantial differences from many other states relate to permanent residents and their rights; the non-applicability of emergency provisions on the grounds of ‘internal disturbance’ without the consent of the State legislature.
There are two issues which often obfuscate perceptions about J&K and Article 370. The first is related to restriction on citizens from outside the State to buy property in Kashmir. This, however, is not unique to J&K. There are similar provisions for sev- eral states which are listed in Article 371 and Articles 371-A to 371-I of the Constitution. The second is about disqualification of women of the State from property rights due to the definition of Permanent Residents given in the State Constitution based on the notifications issued in April 1927 and June 1932 during the Maharaja’s rule. There is no direct provision for it in Article 370 and this matter can be easily resolved through civilian activity and judicial interventions.
In early 1980s, when I was commanding a brigade in Jammu, nobody in that area felt the need for abrogation of Article 370. In fact, at an opposition parties’ conclave in Srinagar in 1982, leaders of national parties, including some which form part of the NDA today, had declared that the special constitutional status of J&K under Article 370 should be preserved and protected in letter and spirit. The abrogation demand is a recent phenomenon; more amongst people of Jammu and Ladakh region. The demand is less due to any restrictions contained in Article 370 and more due to regional polarisation and prejudices which have emerged due to poor governance, communalism and electoral politics in the State. The Central Government is also to blame for creating self-induced doubts about Kashmir in and outside the State, not being able to win the hearts and minds of Kashmiri Muslims of the Valley and delaying physical and mental integration of the State with the rest of India. The relevance of Article 370 as it exists today is more emotional, less substantive. Irresponsible statements and rabble-rousing debates during elections can do more damage to the situation in J&K. Now that the long drawn counter-insurgency and terrorism campaign is about to end and Pakistan seems to be going down the hill, we should avoid raking up this sensitive issue. In the present circumstances, it would be preferable to chip away Article 370, as has been done in the past, instead of rushing for its elimination. ‘Erosion’ may be a better policy than ‘Abrogation’!