Abstract

Article 370 is arguably the most contentious provision of the Constitution of India. Controversial from its very inception the Article deals exclusively with the extraordinary Constitutional standing of the Jammu & Kashmir State. In order to study the implications of Article 370, the essay discusses the origin of the Article; the analysis of its provision with respect to: its temporary status, the subjugation of the Indian Parliamentary before the discretion of the state’s government etc; the effects and exemptions of the Article; non-merger with the Constitution of India; the old perception that it is Article 370which prohibits anyone from outside Jammu & Kashmir State from acquiring immovable property in that State; the demand for its abrogation and the wilful neglect from the political corridors; etc.  Throughout the paper the author tries to unveil the awful truths and myths related to Article 370 and suggest possible answer.

INTRODUCTION

“You want that India should defend Kashmir, India should develop Kashmir, and Kashmiris should have equal rights as the citizens of India, but you don’t want India and any citizen of India to have any rights in Kashmir. I cannot betray the interest of my country.”

-Dr.B.R.Ambedkar

Article 370 is perhaps the most controversial provision of the Constitution of India. It deals exclusively with Jammu & Kashmir[1] State that came under the administrative control of the Government of India after the country’s 15-month war that Pakistan started in 1947 to grab sovereignty over that State.[2]

Termed as the ‘umbilical cord’ of the Indian Constitution it is the only link between J&K and India. Under Part XXI of the Constitution of India, which deals with the “Temporary, Transitional and Special provisions”[3], J&K has been accorded special status under Article 370. Even though included in 1^st Schedule as 15th state, all the provisions of the Constitution which are applicable to other states are not applicable to J&K.Further the State has a separate ConstitutionKnown as ‘The Constitution of Jammu and Kashmir’, its own State Flag[4] and its own Anthem called ‘QuamiTarana’[5].In order tounderstand the implications of this Constitutional provision we need to know about the origin[6] of Article 370.

HISTORICAL BACKGROUND

“The dusk here does not arrive on the shoulders of golden sunsets any more, but on the heels of long, encroaching shadows of untraceable trees in the distance, gloomy parallel patterns that cascade over the undulating landscape of unevenly dispersed corpses and other things.– MirzaWaheed

WhenIndia and Pakistan gained independence on 15^thand 14^th August 1947, respectively; J&K chose to remain independent. There were standstill agreements of J&K with Pakistan and India.This procrastination was ended with the invasion by some 5,000 Pathantribesmen followed by Pakistani soldiers looting, killing and raping on the way to Srinagar.

Sheikh Abdullah describes the state of affairs as,“The invaders, who came in the name of Pakistan to make us believe that they were true servants of Islam, scorched our land, ruined our homes, despoiled the honours of our women and devastated hundreds of our villages. These lovers of Pakistan dishonoured our mosques which they turned into brothels to satisfy their animal lust with abducted women”[7]

To save his state,Maharaja Hari Singhaccede J&K to India by signing the prescribed Instrument of Accession on October 26, 1947surrenderingjurisdiction of threesubjects: Defence, Foreign Affairs and Communication to the Central Government.

While there was a common consensus for an integrated Constitution of India, J&K decided to have its own separate State Constitution[8]. This was because Government of India had given an undertaking that people of J&K could frame their own constitution and because Government of India could not force the State to accept the Constitution of India,[9] for that would violate the agreed terms of association with India.[10]While Indian Constitution was to become applicable to all constituent units of the Union, the Indian Constituent Assembly was compelled to make a special provision to coverparticular and exceptional case of J&K. Thus Article 370 was sown out of the draft Article 306-A.[11]

Article 370: An analysis

The grammar of Constitutional relationship and the way inwhich the relation between the Union of India and the State ofJammu and Kashmir will be governed are embodied in Article 370 of theIndian Constitution. The very object of this temporary provision is to givethe Kashmiris an opening to connect with the free, democratic andsecular India and let them appreciate that their future is safeby becoming an integral part of the Union.Article 370 is the sole repository of the constitutionalmorality governing the relationship with the State ofJammu and Kashmir, therefore it would be significant to mention theprinciples embodied therein.

Article 370 falls under the Indian Constitution’s Part XXI called ‘Temporary, Transitional and Special Provisions’, the term special enacted bythe 13^th Amendment 1962. Subsequent Constitutional Amendments were enacted as Special Provisions of one kind or other for various States. However, Article 370 has continued under ‘Temporary status’ from its very inception. It is Article 371 and Articles 371A to 371I which are designated as ‘Special Provisions’.

According to the speech by Dr.Shyama Prasad Mookerjee at Kanpur (29th December 1952),[12]GopalaswamiAyyangar had made a statement in the Constituent Assembly that with the intention of keeping the door open for the day when J&K would merge with India and fully accept the Constitution of India, he had categorized Article 370 as a ‘Temporary’ provision. On 27th November 1963, Pandit Nehru confirmed on the floor of the Parliament his earlier made statement:

“Samvidhankidhara 370ghisteghisteghisjaayegi.”

“Article 370 of the Constitution would disappear by being eroded progressively.” That hope of Nehru hasn’t been fulfilled till date. Instead, Article 370has become permanently ‘Temporary’.[13]

The prelude‘Notwithstanding anything in this Constitution’ indicates that Article 370 applies without having to depend on any other provision of the Constitution for its enforceability. This prelude has been rarely used in the rest ofthe Indian Constitution.

The reference in clause (1) (a) of Article 370 to the non-application of Article 238 to J&K is superfluous today. Article 238 was meant to administer the constitutional relationship between the Union and the princely States; it could not be applied to J&K. Article 238 was deleted by the Constitution (Seventh Amendment) Act, 1956.

The core of clauses (1)(b)(i) and (1)(b)(ii) combined is that laws of Parliament on matters in the Union List and the Concurrent List[14] can be made for J&K only after the ‘consultation’ or  ‘concurrence’ of the State government depending on the subject matter of law. Under (1)(b)(i) Parliamentary laws on the subjects mentioned in the two said Lists conforming to Defence, External Affairs and Communications need ‘consultation’ with State Government; under (1)(b)(ii), Parliament’s laws on all other subjects will require the State’s “concurrence” before they are applied to the State.[15] There is no State List for J&K because it was omitted by President’s order issued under Article 370 in September 1963.

Parliament today cannot extend laws to J&K in respect of 32 entries in the two existing Lists together; neither ‘consultation’ nor ‘concurrence’ enters the picture. Moreover, seven entries in Concurrent List stand substituted for J&K, further diluting the force of the two Lists put together.[16] Clauses (1)(b)(i) and (1)(b)(ii) prevent the possibility of  Parliamentary law being extended to J&K either because the consultation with State Government was not productive or because the State Government denied concurrence to that law. The ruling NCP admitted[17] that, in extendingParliamentary legislations, J&K has been brought within ambit ofover 260 Central laws with, and not without, the ‘concurrenceof the State Government’.[18]In practise any legislation of the Indian Parliament can be applied to J&K only if it receives sanction from that State’s government.

Article 370 asserts that ‘provisions of Article 1 and of this Article shall apply in relation to that State’. The prelude to the Article ‘Notwithstanding anything in this Constitution’ states that (i) Article 370 does not depend on any otherArticle of the Constitution for its enforceability and (ii) it is Article 370 alone which makes Article 1 (enunciating theterritorial components of India) applicable to J&K i.e. in absence of Article 370, Article 1 would also not apply to that State and would exclude J&K as part of Indian territory!

The first paragraph of Clause (3) is a revolutionary provision in a parliamentary democracy which permits a mere executive notification to cease the operation of an Article of Constitution or to restrict its operation in the country.The second paragraph of clause (3) permits the above executive action on the recommendation of an organisation that is today moribund viz the Constituent Assembly of J&K[19].The continued mention of the Constituent Assembly in Article 370 as a recommending authority seems verily like investing a ghost with powers to do this or that.[20]

The Supreme Court five-judge bench without referring to PremNathKaulv. State of J&K,[21] pronounced a strange decision inSampatPrakash v. State of J&K[22]ruled that (i)the wording of Article 370 makes no mention of the completion of work of the Constituent Assembly or its dissolution and (ii) the Constituent Assembly recommendedthat Article 370 should continue with one modification. The modification that the Court alluded to was the ‘Explanation’ of 15th November 1952.The apex court’s verdict implied that just because the J&K Constituent Assembly had so recommended, way back in November 1952, Article 370 should continue. Perpetuating the wish of a political authority long after it was dissolved andleaving no other system for change is an impossible scheme to accept for any Constitution in any democracy.

Article 370: The Effects and Exemptions

The content of Article 370 restricts the applicability of parliamentary legislation on J&K depending either on the consultation or concurrence.This phenomenon of certain laws of the Indian Parliament not being applicable at all or applicable only in part to J&K is extraordinary.[23] Following Parliamentary laws are not at all applicable to J&K:

• Indian Penal Code 1860.[24]
• The Prevention of Corruption Act, 1988.
• The Religious Institutions (Prevention of Misuse) Act, 1988.[25]
• The Delhi Special Police Establishment Act, 1946.[26] — An exclusion which ‘may possibly have serious consequences for India and Kashmir’.[27]
• The Protection of Human Rights Act, 1993.[28]
• The Representation of the People Act, 1950.[29]
• The Representation of the People Act, 1951.[30]

In the same manner certain Constitutional Provisions are exempted from being applicable to J&K:

• Article 31C[31]
• Articles 36 to 51[32]
• Article 51A[33]
• Article 134A[34]
• Articles 153 to 217[35]
• Article 360[36], etc.

Further, the word ‘secular’ was added to the Preamble of Indian Constitution by the 42nd Constitutional amendment in 1976; it is meant to be omitted in respect of J&K. The Constitution of J&K therefore does not proclaim itself to be ‘secular’. What has been ruled by SC as part of ‘basic structure’ of the country’s constitutional framework[37] is thus not true of J&K.

Article 3 of the Indian Constitution provides that Parliament by law may increase or diminish the area of any State or give it a different name. It provides further that no Bill providing for increasing or diminishing the area of J&K or altering the name or boundary shall be introduced in the Parliament without the consent of the Legislature of the State.This most peculiar discrimination in the right to vote has resulted in the most unusual phenomenon that Indian citizens in J&K are eligible to vote for the LokSabhaElections but not for the State Assembly polls! And this forno other reason than that they are not ‘Permanent Residents’under the State Constitution and State laws.

Article 352 of the Indian Constitution empowers the President to make a Proclamation of Emergency when the nation’s security or any part of its territory is threatened, whether by war or external aggression or armed rebellion. However, in its application to J&K the Proclamation of Emergency will have effect if it is made at the request or with the concurrence of the Government of the State.

Indian Parliament is rendered impotent to amend, by itself, any provision of the Nation’s Constitution that impacts J&K. Any amendment of Constitution will not apply to J&K unless it is brought through ‘consultationwith’ or ‘concurrence of’ it’s State Government and issued under Article 370. Article 370 is a special provision for amending the Constitution in its application to the State of J&K. Article 368 does not curtail the power of the President under article 370. Even a radical alteration can be made in a constitutional provision in its application to the State.

In PuranlalLakhanpalv. Unionof India[38] the Supreme Court observed,“In the context of the Constitution we must give the widest effect to the meaning of the word modification used in Article 370(1) and in that sense it includes an amendment. There is no reason to limit the word ‘modification’ as used in Article 370(1) only to such modifications as do not make any “radical transformation”.

Further, Article 370 authorises the President to modify a constitutional provision not only when it is applied to the State for the first time, but even subsequently after it has been applied. An amendment made to the constitution does not automatically apply to the state of J&K. It can apply only with the concurrence of the State Government, and when the President issues an order under Article 370.[39]

J&K is the most autonomous State in India.Prof.M. P. Jain writes, “The two characteristic features of this special relationship are: (1) the State has much greater measure of autonomy and power than enjoyed by the other States and(2) Centre’s jurisdiction within the State is more limited than what it has with respect to other States.”[40] However, political leaders[41] and political writers[42] have frequently raised the demand for even greater autonomy to preserve the so-called ‘KASHMIRIYAT’ culture[43],the other set[44] believes J&K to be ‘the most pampered State in India’[45].Massive financial assistance from the Union Government has promoted the economy of J&K.[46]

Further none of the provisions of Article 370 by itself prevents anyone outside J&K from purchasing immovable property in thatState —perhaps the most resented aspect associated with that Article.Such and other disconcerting restrictions flow onlyfrom authority that Article 370 gives to issuance ofexecutive orders[47] exempting or modifying provisions ofParliament’s laws or Indian Constitution in respect ofJ&K.[48]

Abrogation of the article:

The Union Government can’t apply even the Indian Penal Code to J&Kalthough the State Constitution declares itself to be an integral part of India.National interest has dwarfed in India, playing second fiddle to vote bank politics.Consequently a feeling has spread in J&K that its government and people are privileged.Successive Central Governments have tolerated this ego to appease communal vote banks.Dislike of this elitist stance of the J&Khas often come from its Jammu and Ladakh regions.[49]

A genuine patriotic Indian desirous of integration across the country would only like to abrogate the Article distressed by the fact that he is not allowed to purchase immovable property in J&K, that laws and Constitutional provisions are not uniform throughout the country, that special economic benefits are given to a State where ‘separatists’ are given prominence and where difference is expressed between ‘Hindustanis’ and ‘Kashmiris’. BhartiyaJantaParty has been the only one to demand that abrogation. The Congress and other parties disagree with this view considering it would affect Article 1of the Constitution.[50]

The real problem in abrogating the provision isthe wording of Article which states that the Article can cease to be operative only if so recommended by the Constituent Assembly of J&K which was dissolved in November 1957 but its existence not removed from Constitutional text till date, its recommendation for axing Article 370 is impossible in practice.

Conclusion:

The compromise by political parties ignores the overall ill effects that pampering of one State has brought to the dignity of country’s two supreme institutions—the national Constitution and the Indian Parliament.It is a national humiliation that members of the Legislature of J&K, Chief Minister and ChiefJustice are required to swear allegiance to the State Constitutionand not the nation’s Constitution.This has not only ignoredthe injustices caused by Article 370 to other States but is responsible for the ‘separatists’ and ‘secessionists’ and ‘freedom fighters’talks for last 15 years, thereby inhibiting socio-economicdevelopment. Further this has led to ignoring the grievances of Jammu-Ladakh regions and Kashmiri Pandit community which,forced to live as refugees in their own country since 1989-90.

The Constitutional position of the State has not remained static since it became a constituent unit of the Indian Union. It has been growing with time towards a closer affinity of the State with the Indian Union, and more and more provisions of the Constitution have been applied to it in course of time.[51]Over the last five decadesa considerable number ofParliamentary laws and Constitution provisionshave been extended to J&K but the Parliament still suffers subjugation to the State Government.Moreover, Article 370 cannot be abrogated legally as long as its wording contains “recommendation of the Constituent Assemblyof the State” as the prerequisite for revocation and as longany constitutional amendment relating to J&K itself needs that State Government’s approval. Politically it isdubious with the present attitude of political parties.

Hence, the action must begin with a political and judicialmerge.The judiciary could look upon to secure equal rights to all the Indian citizens in the State. Legal eagles should go to court asserting that Article 35Aviolatesthe principle of equality that is part of the basic structureof our Constitution and that the J&K State Constitution creating aprivileged class of citizens designated as Permanent Residentsviolate the noble principles enunciated in the Preamble ofthat very Constitution. A mechanism for transparent and mutual working of the LokSabha and the RajyaSabha should be evolved.

The need is to develop the  confidence to fight for ‘EkVidhan, EkNishan, EkPradhan’ and the ultimate goal is to bring J&K within the mainstream of the Indian Constitutionwithout Article 370.“If we cannothave confidence in our own strength, we do not deserve tobe a nation.”[52]