Ar­ti­cle 370 and its Rel­e­vance To­day

SP's LandForces - - FRONT PAGE - Gen­eral V.P. Ma­lik (Retd)

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’!

A panoramic view of Sri­na­gar

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