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The recent suggestion of the Gujarat chief minister and BJP’s Prime Ministerial candidate Narendra Modi at a rally in Jammu that the nation should debate the usefulness of the Article 370 of the Indian Constitution that grants special rights to the state of Jammu and Kashmir has caused a hue and cry in the political circles. It has particularly angered the anti-BJP politicians, activists and intellectuals, who, in turn, are unanimous that the BJP through this demand has injected communal elements into the national politics and strengthened the hands of the Kashmir – separatists and their masters in Pakistan. Jammu and Kashmir Chief Minister Omar Abdullah has interpreted Modi’s suggestion to be unfortunate and unnecessary. In an answer to question at a media enclave on December 4, he said that that there was a lot of confusion among the masses regarding Article 370. He said that “the law unites J&K with the other states and it serves as a bridge between the state and the rest of the country”.
Omar’s father and Union Minister Farooq Abdullah has gone even a step further to say, “Whether it is Narendra Modi or anybody else, nobody can abrogate Article 370, which is here today and would be here tomorrow.” He apparently was “sad that in order to fool people, Narendra Modi is speaking of issues like Article 370. If he wants to become the Prime Minister of India, he must think of uniting India and not of dividing it.”
What exactly did Modi say at the rally? Going by the press reports, he said that the BJP would carry forward the initiatives in Jammu and Kashmir on the principles of “Insaniyat, Jamhuriyat and Kashmiriyat” as envisioned by former Prime Minister Atal Bihari Vajpayee, that “whether Article 370 has done anything good or bad should be discussed, but has Omar Abdullah’s sister got the same right as him?”( Omar’s sister is married to junior Union Minister Sachin Pilot, hailing from Rajasthan), that “despite huge natural resources, the state government has always been approaching the Centre with a begging bowl, that corruption is rampant in Jammu and Kashmir, that it was time that there should be laws to prevent corruption be there in the state something that is not possible as the rules made by the centre are not applicable in the state because of Article 370, and that “Article 370 of the constitution grants special status to Jammu and Kashmir. The BJP has always advocated for scrapping the Article.”
Most of the reactions that followed Modi’s suggestion centered round why, how and if the women in the state of Jammu and Kashmir do not enjoy the same property rights as that of the men. Omar termed Modi’s view on the subject was factually wrong. As Prof. Rekha Chowdhary rightly says, “Article 370 has nothing to do with this issue. It is the issue of Permanent Residents of the state. This was a local law passed in 1927 by Maharaja Hari Singh. According to this law, only the state subjects were entitled to certain privileges including state employment and ownership of property. The discrimination against women was a later phenomenon. The Permanent Resident Certificate (a terminology used for ‘state subjects’ in post-1947 period) for women was stamped ‘valid till marriage’. After their marriage women, in order to enjoy the rights of Permanent Residents of the state had to be reissued the certificate, in case they married the Permanent Residents. Women who were married outside the state were not issued such certificate. This administrative practice was challenged in the High Court of the state and in 2004 decision came in favour of women. As per the present legal position, no distinction is made between men and women in their right to be the Permanent Residents. This is despite the fact that the then ruling PDP (under Mufti Mohammad Sayed)tried to undo the High Court decision by introducing a bill (twice) for disqualifying women to be the Permanent Residents of the state if they marry outside the state. However, the bill could not be introduced due to the vehement opposition within the Assembly and outside. Hence women even if they marry outside the state continue to be the Permanent Residents of the state”.
It may be noted here that the PDP was not alone in making laws to overcome the High Court judgment. The National Conference of the Abdullahs was also very a party to it. In that sense, Modi’s suggestion resulted in a categorical statement of Omar Abdullah that his party was wrong and would not challenge in future the majority Jammu and Kashmir High Court judgment that favoured property rights of the women married outside the state. But then, the fact remains that there are still plenty of hurdles for women of the state in acquiring property. For instance, even if a woman from the state marrying outside the state is able to acquire property as per the High Court ruling, her children will not be able to inherit that property as they cannot be “the permanent residents” of Jammu and Kashmir.
Take the case of Sunanda Pushkar, wife of another Union Minister Shashi Tharoor. In an interview to a television channel she said, “I want someone to re-look at this article (Article 370). I am not asking to abolish it but please give us back our home also,” adding, “I have not benefited from this article. Kashmiri Pandits have not benefited from this article many Muslim girls have not benefited from this article.” While being questioned about Article 370, Mrs Tharoor said, “Actually I am quite sure my husband would be annoyed with me answering this question but I do also have a voice. I am a woman I am a Kashmiri, very proudly Kashmiri, and I do beg pardon of my husband if I say this but because he is a very big fan of Jawaharlal Nehru but what I don’t understand when this accord was formed ……. why is about Kashmir that we can’t do it.”
Ms. Tharoor explained the ordeals which she had experienced when she wanted to buy a property in the valley in 2006-07. She told her interviewer how she was denied permission to buy land as she is married to a non-Kashmiri. She even told how chief minister Omar Abdullah had tried to help her out but had alerted her that her son might not able to inherit the land!
Whatever the critics of Modi may say, the fact, however, remains that if there are certain rules or laws in Jammu and Kashmir that are not in tune with the laws prevailing in the rest of the country, it is precisely because of the Article 370, whether directly or indirectly. In its essence, the Article 370 limits on the legislative power of the Union over Jammu and Kashmir. There are strict limits to what Parliament can legislate for the state. The state has a separate constitution and a separate flag, something no other state has. The tenure of its Assembly is six years, whereas in the rest of the country it is five years. An Indian citizen who is an ordinary resident of Jammu & Kashmir is not allowed to contest elections here. Even the Supreme Court has only appellant jurisdiction here as it is not vested with the jurisdiction of a Federal Court and can only hear cases on appeal. These provisions give a large measure of autonomy to the state.
The Article 370 article specifies that except for “Defence, Foreign Affairs and Communications”, (matters specified in the instrument of accession) the Indian Parliament needed the State Government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. Of course, similar protections for unique status exist in Himachal Pradesh, Arunachal Pradesh, and Nagaland and under Article 370 certain safeguards are envisaged for the backward regions of some states such as Maharashtra and Andhra Pradesh in the matter of development and also in the matter of employment opportunities and educational facilities for the residents of that area. But the difference lies in the fact while the Parliament amend these laws on its own, in Jammu and Kashmir nothing can be done without the consent of its Assembly.
However, it must be noted that the incorporation of Article 370 in the Constitution of India was purely a temporary measure and that it was incorporated in a specific situation that no longer remains valid. In fact, when in the wake of aggression from Pakistan on October 24 1947, the then Maharaja Hari Singh signed an “Instrument of Accession” on October 26, 1947, he had empowered the Union of India to have absolute jurisdiction in respect of three subjects namely defence, foreign affairs and communication. The idea was to save Kashmir from Pakistan. The Maharaja and the Government of India were clear that as regards the full integration was concerned, the final decision would be taken through the “Constituent Assembly” of Jammu and Kashmir, and that till then the state will have a special status as enshrined in Article 370.
Some historians argue that the Maharaja would not have minded the unconditional accession with India but for Nehru. The then Indian Prime Minister wanted the power to be handed over to late Sheikh Abdullah, not to the Government of India as such. And it was on Abdullah’s request that it was agreed that the State’s Constituent Assembly would take the final decision on the accession. Be that as it may, after the execution of the Instrument of Accession, the Constituent Assembly of Jammu & Kashmir on November 17 1956 “adopted, enacted and gave to themselves (the people of Jammu and Kashmir) a new constitution which they called the Constitution of Jammu & Kashmir” and made a written commitment in the Preamble to its newly framed Constitution that “Jammu & Kashmir is and shall be an integral part of the Union of India.”
As historian Suryakrishna Pillai rightly argues, “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.” But unfortunately, the Nehru government “evolved the obnoxious and unwise policy of appeasement of Muslims in the Kashmir valley and thus committed the blunder of making a non-issue an issue. It is also true that the subversive elements were active even at that time, both in Pakistan and India, but who prevented the then Prime Minister Nehru to crush them with the help of the armed forces which were always at his disposal. Nehru went on committing one blunder after another. Even today the Centre is pursuing the same cowardly and conciliatory policy towards the enemy”, according to Pillai.
The most important reason cited in favour of the retention of the Article 370 is that but for it India will not be able to retain a Muslim majority state. But if that is so, how come Christian majority- North eastern states and the Sikh majority-Punjab do not have special Articles for themselves? The question is also not related to the principle of secularism, something that the “secularists” point out whenever the question of abrogating this temporary Article arises. In fact, contrary to the spirit and content of the Indian Constitution, there is no mention of the word of “secularism” (or for that matter socialism) in preamble of constitution of Jammu and Kashmir. And it is well known how the non-Muslims in the State have been suffering in the state over the last few years. The real problem in Kashmir today is the growing “Islamisation” of the Valley, which, in turn, makes any negotiated settlement of the Kashmir issue almost impossible. An “Islamic Kashmir” will have nothing to do with India, whether there is Article 370 or not.
Over the years, Kashmir has been witnessing what Bangladeshi scholar Abu Taher Salahuddin Ahmed says are three principal trends – Indianness, Kashmiriness and Muslimness. The Indianness has been propagated by the federal forces, be it the Central Government or national parties such as the Congress and the BJP. However, the problem in the State is due to the tussle between those believing in Kashmiriness and those loyal to Muslimness.
Kashmiriness is an offshoot of the much-talked about Kashmiriyat, which, while co-existing with Indianness, talks of inclusive or composite identity, binding all groups together and not offending any section. No wonder why despite being a Muslim-majority area, beef-eating, until recently, was virtually non-existent in the Valley. Of course, some scholars now point out that there were always differences between Muslims and Hindus (essentially Kashmiri Pundits) in their interpretation of the concept of Kashmiriyat. But undeniably, the concept did promote coexistence. Majority of the Kashmiri Muslims, therefore, had no problems with the Hindus or for that matter with the Buddhists. And, the key factor to the success of Kashmiriyat was the fact that the overwhelming majority of the Kashmiri Muslims believed in Sufism or what is said the “Rishi tradition” that believed in saint and shrine worships. Of course, it was greatly facilitated by the fact that as was the case in other parts of the subcontinent, Muslims were essentially converts from the fold of Hinduism.
In contrast, the “Muslimness” always advocated the exclusive concepts in the Valley. Promoted by the Wahhabi and Ahl-i-Hadith sects, this school relies more on the authority of the Quran and Hadith and is totally opposed to the concept saints and shrine worships. This tradition or school has always been in minority in Kashmir, but has been there always. It was behind organisations such as the Muslim Conference and the Kashmir Jamaat (KJ).
Needless to say that almost all the separatists and terrorists, including the so-called moderate elements like the Hurriyat Conference, belong to the school of Islamness. They have nothing to do with India. No amount of appeasement will ever impress them to stay with India. They believe in the theory of “Kashmir for Muslims” and their essential argument is that they cannot co-exist in a Hindu-dominated India. Viewed thus, the separate treatment of Jammu and Kashmir through Article 370 has increased the distance between the state and rest of the country, not brought them closer.
In fact, as political analyst Prashanth Vaidyaraj argues, Article 370 has not been beneficial to the people of the state themselves either. “As the People representation act does not apply to the state, the center has no power to enforce delimitation of the constituencies in the state. As a result, even though Jammu has more population, has a larger area and more voters, Kashmir has more assembly seats. While Kashmir has 47 assembly seats, Jammu has only 37. If proper delimitation takes place Jammu should have 48-50 seats and Kashmir would have 35-36 seats. There is no record of the number of OBC’s in the state. Mandal commission report has not been implemented and hence the backward classes here have no reservations in various fields. Deprived sections of the society like SC/STs did not have any reservation in J&K till 1991. Though in 1991, they were provided reservation in employment and education they still do not have any representation in politics and in the state assembly. It’s surprising that the Dalit and ‘Bahujan Samaj’ leaders have been silent on this”.
Vaidyaraj also has a valid point when he says that “It’s worth noting that the per-capita subsidy provided to J&K is 16 times more than West Bengal and 12 times more than Bihar. Allocation of financial resources for the Kashmir valley varies between 65-69 percent, whereas both Jammu and Ladakh divisions put together get about 31-35 percent. J&K also gets special employment packages and prime ministers packages regularly but there is no accountability as none of this information is made public or is available under J&K’s RTI Act”.
This brings to the last point in this essay whether the Article 370 can be abrogated by the Government of India? As has been pointed out earlier, the Article in strict sense of the term died the very moment the Constituent Assembly of Jammu and Kashmir was wounded up in 1950s. According to Pillai, Article 370, which according to part XXI of the Constitution of India, was a temporary, transitional and special provision ought to have been firmly annulled either by invoking Presidential power under Clause (3) of the same Article or through constitutional amendment under Article 368 read with Article 355. When the Instrument of Accession was executed on October 26, 1947 and the Constituent Assembly acting on behalf of the people of Jammu & Kashmir accorded final sanction to the said accession on November 17, 1956, the Kashmir chapter was closed for ever. “Why a closed and concluded matter was made a subject of controversy again? Clause (3) of Article 370 of the Constitution of India clearly states, ‘Notwithstanding anything in the foregoing provisions of this article the President may, by public notification, declare that this article shall cease to be operative only with such exceptions and modifications and from such date as he may specify’”, he argues.
Siddharth Singh is Editor (Views) of the Mint newspaper has also a way out. He writes: “In May 1954, the President used his powers under Article 370 to extend a number of provisions of the Constitution of India to J&K. Among these was a proviso to Article 368—the feature that allows amendments to the Constitution—which limited its applicability to J&K. That is a red flag waived against any attempt to repeal Article 370.
“Again, this is a questionable interpretation. The order is mere executive order that applies to J&K and is not a constitutional amendment. It has no bearing on what exists in the Constitution and what can be amended. There are, of course, limitations to what Parliament can amend. In addition, the Supreme Court through the basic features doctrine has imposed limitations on this power of Parliament. The basic features of the Constitution (for example, the secular nature of the Republic and the separation of powers) cannot be changed.
Article 370—a temporary provision—is certainly not a basic feature and as such there ought to be no bar against its repeal.”
Farooq Abdullah is, thus, wrong that Article 370 is permanent. It depends on the political will of a central government to abrogate it. But he may be right that no central government, even if it is led by Narendra Modi, will dare to do so.
Article 370
{Temporary provisions with respect to the State of Jammu and Kashmir}
(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.
Explanation: For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948;
(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 (46) 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. { ICL-Note: In exercise of the powers conferred by this article, the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that, as from the 17th day of November, 1952, the said article 370 shall be operative with the modification that for the Explanation in clause (1) thereof, the following Explanation is substituted namely: “Explanation: For the purposes of this article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Governor of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.” }
(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. In exercise of the powers conferred by this article the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that, as from the 17th day of November, 1952, the said art. 370 shall be operative with the modification that for the explanation in cl. (1) thereof the following Explanation is substituted namely:
Explanation—For the purpose of this Article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-I-Riyasat of Jammu and Kashmir, acting on the advice of Council of Ministers of the State for the time being in office.
Consequences of Article 370
1. Secessionism spread to other states
The venomous tendencies of secessionism and separatism, strengthened by those, who incorporated the baneful Article 370 in the Indian Constitution, later on spread to Nagaland, Meghalaya, Mizoram and Punjab.
2. Regionalism and parochialism
The Article 370 tanned and fed the forces of regionalism, provincialism, parochialism and obscurantism. It created regional conflicts, collisions and controversies in truncated India.
3. Denial of fundamental right to settle permanently
Under Article 19 (1) (e) and (g) of our Constitution, it is fundamental right of the citizens of India to reside and settle permanently in any part of the country, and to practice any profession or carry on any occupation, trade or business. But Article 370 deprived the citizens of India of the right to settle permanently in Jammu and Kashmir. Is it not a strange discrimination that citizens of Jammu and Kashmir could settle in any province of India but the citizens of India could not settle in Jammu and Kashmir, because of this discriminatory Article 370? Even Pt. Nehru, the Prime Minister of free India, could not settle in his own ancestral land Jammu and Kashmir, because of the baneful barrier of Article 370. No citizen of India could go to the state of Jammu and Kashmir without a permit issued by the state government, headed by Sheikh Abdullah. Dr. Shyama Prasad Mookerjee, the founder of Bharatiya Jana Sangh (the progenitor of BJP) defied the permit system and entered the territory of Jammu and Kashmir without permit. He demanded from Nehru Government the abrogation of the detrimental Article 370, which smacked of secessionism. Consequently he was arrested on May 11, 1953, and detained in Srinagar Guest House. On June 23, 1953, Dr. Mookerjee breathed his last, while in police custody in the Srinagar Hospital under suspicious situation: The unofficial probe pointed to medical murder. Thus the founder of Bharatiya Jana Sangh sacrificed his life for the abrogation of the venomous Article 370.
4. Denial of Fundamental right to purchase property
Under Article 370, citizens of India cannot purchase immovable property in the State of Jammu and Kashmir, but the people of Kashmir can purchase property in other states of India.
5. Deprivation of the right to vote
The citizens of India cannot become the citizens of Jammu and Kashmir. Due to Article 370, they are deprived of their right to vote in the elections to the state assembly or municipal council or panchayats.
6. Denial of Jobs
On account of Article 370, Indian citizens cannot get jobs in the state of Jammu and Kashmir. All the jobs in the state are reserved for the citizens of the state.
7. Detrimental to women of the state
Article 370 is highly detrimental to the women, who are even born and brought up in the state of Jammu and Kashmir. If a woman, who is permanent citizen of the state, gets married to a man who is not a citizen of the state, she loses her property. She is deprived of even her ancestral property. In the state of Jammu and Kashmir, domicile certificates issued to women are valid up to their marriage only. They have to acquire fresh ‘Permanent Residence Certificate’ after their marriage.
8. Denial of admission and job to Kashmiri women after marriage
If a woman, who is born and brought up in Jammu and Kashmir and is permanent citizen of the state, marries a citizen of India, she cannot get a job in the state, nor can she get admission in medical, engineering or agricultural colleges established with the financial aid by the Union of India.
9. Victimization of Hindu Immigrants – Supreme Court helpless:
On account of unholy partition of our holy Motherland, unfortunate Hindus were ousted from their ancestral homes in West Pakistan. A few thousand Hindu families migrated to Jammu and Kashmir and settled there. Though, fifty five years have elapsed since their migration, yet they, their children and even grand-children have not been granted citizenship on the ground that outsiders cannot settle permanently in the state on account of Article 370. Consequently, these unfortunate Hindus are deprived of their fundamental rights. They cannot purchase land for construction of their houses. Their names are not included in the electoral rolls of the state assembly. Hence, they cannot exercise their franchise in elections. They cannot get Government or semi-government jobs. They are not sanctioned loans by the state government. They are not granted government licenses for the purpose of business. Their children are not granted admissions in medical or engineering colleges of the state, though the Government of India bears most of the expenses of the said colleges. Thus, they are treated as second-class citizens in a state, which is declared as an inseparable part of India. Having seen no other alternative, the unfortunate displaced persons knocked the door of the Supreme Court. It is a matter of irony, agony and astonishment that though the Supreme Court realized the injustice rendered to them; yet, it could not give any relief to them because of the discriminatory Article 370. It is a heartrending tale that the honorable judges of the Supreme Court, in spite of having recognized their grievance as justifiable, expressed their inability in their judgment to give any relief to the unfortunate Hindu immigrants in view of the peculiar constitutional position prevailing in the state.
10. Incapability to alter the boundaries of Kashmir
Under Article 3 of the Indian Constitution, the Parliament has the right to change the boundaries of any province, provided the President consults with the authorities of the concerned province before signing the bill. But, on account of Article 370, the Parliament of India cannot alter the boundaries of Jammu and Kashmir. For doing so, it has to seek approval from the Constituent Assembly of Jammu and Kashmir. It indicates that the Constituent Assembly of Jammu and Kashmir is above the Parliament of India. Had Pt. Nehru not applied Article 370 to the state of Jammu and Kashmir, the Indian Parliament could have split Kashmir into various parts and annexed the said parts to the adjoining provinces. The only solution to the problem of Kashmir is to abrogate Article 370, split Kashmir into parts and annex the said parts to the adjoining provinces in such a way that the Muslims may lose the majority, and Hindus may be induced to settle permanently in the said parts with overwhelming majority. The well-planned systematic dispersal of Muslim population and settlement of Hindu population in its place is the only remedy to the malady of Kashmir.
11. Non-acceptance of Hindi
The decision of the Union of India pertaining to Hindi as National language could not be applied to Jammu and Kashmir because of Article 370. No member could speak in Hindi in the State Assembly without prior permission of the speaker.
12. No CBI in Kashmir
On account of baneful barrier of Article 370, Central Bureau of Investigation (CBI) was not allowed to work in Jammu and Kashmir. Thus Sheikh Abdullah and his accomplices were let loose to collude with Pakistani conspirators and infiltrators. The reports of his collusions and conspiracies with Pakistani agents and spies could not reach the ears of the ruling leaders of India.
(Based on A SECULAR AGENDA by Arun Shourie and HORRENDOUS CONSEQUENCES OF ARTICLE 370 by Kanayalal M. Talreja, RASHTRIYA CHETANA, March2004)
Understanding the Article 370 » Indian Defence Review
............All it really requires is Political Will.
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