Article 370 of The Indian Consitution
Ever since Dr. Jitendra Singh, recently elected to the 16th Lok Sabha on a BJP ticket from the Udhampur constituency in Jammu & Kashmir, and appointed by PM Narendra Modi as Minister of State of the Government of India, stirred the hornet’s nest by remarking that the government was in a discussion with the “stakeholders” and that the “process of repealing Article 370” had been initiated, there has been a cascade of opinions and counter-opinions on the subject. The CM of J&K, Omar Abdullah was quick off the block with a tweet: “Mark my words & save this tweet – long after Modi Govt is a distant memory either J&K won’t be part of India or Art 370 will still exist.” The TV channels were also quick to jump in the fray and the different “stakeholders” were shouting and screaming in the studios and outside, adding their two-bits to the already raucous cacophony. One thing that stood out sharply from all this noise was that most of the panellists had no idea about the Article, its origins, and its place in the Constitution of India. A lot of myths that have ossified into belief continue to befuddle the perceptions of people, including senior and seasoned politicians and constitutional experts. It is, therefore, appropriate and necessary to revisit this Article, its genesis, and its position within our Constitution, unemotionally and rationally.
The British ruled over India in two different ways. The first was direct rule through the British Parliament represented by the Viceroy and it extended over almost 60% of the geographical extent of the country, known as “British India.” The second was through the different princely states, totalling 562, known as “Indian States” nominally ruled by the titular Nawab, Raja, Maharaja, etc., but owing allegiance to the British Crown. The Indian States were allowed freedom to govern their territories in internal matters, while matters relating to defence, communications and foreign policy were under the British rulers through treaties of “paramountcy” that were individually signed with each local ruler. The citizens of these princely states were not British subjects but “British protected persons” unlike the citizens of British India. The princes were protected from their neighbours by the presence of British troops in the capital of the state under the control of a Resident. This served the dual purpose of keeping the activities of the prince under constant watch as also providing him protection from his enemies.
On 20th February, 1947 the British government announced that it would be giving freedom to British India by creating two independent dominions of India and Pakistan based on the Hindu and Muslim majority areas of the various provinces that constituted British India. However, with regard to the 562 princely states, the British announced that the political arrangements under the treaties of “paramountcy” would no longer be valid and the powers that the states had given to the British would revert to them. In other words, the Indian States would become independent states on their own and the communal basis of the partition of British India would not be applicable to them. True to their imperial colours, the British had attempted a fragmentation of the subcontinent too mind-boggling to comprehend. With 562 independent countries scattered all across the length and breadth of the country, the British had sowed the seeds of future civil wars and ethnic conflicts. It is pertinent to note that out of the 562 fragments only 14 would have been within the geographical extent of Pakistan, while the remaining 548 would lie within India. Imagine the administrative chaos of dealing with such a large number of independent entities!
Instrument of Accession
The solution to this problem was found in the “Instrument of Accession” proposed by Sardar Patel’s secretary, V. P. Menon, under which the states would hand over the same three functions; namely defence, foreign affairs and communication, to the Central Government, while retaining the other rights that they had under the treaties of paramountcy. The draft instrument of accession was circulated among the princes by the Viceroy, Lord Mountbatten on 25th July 1947, whom he also advised that though legally they were independent, they should accede to one of the two dominions before the official transfer of power, keeping in mind the ‘geographical contiguity of their States’. They would be surrendering to the Central Government only three subjects: defence, external affairs and communications. He also warned the States, “If you do not link with one or other of the dominions, you may be cut off from any source of supply.” In return, the Government was prepared to allow them to keep their titles, palaces, privy purses, and their right to British decorations and other privileges. By August 14th, 1947 Sardar Patel’s “basket of apples” was almost full, and only three States had not signed the Instrument of Accession. These three were: Hyderabad, Junagarh, and Jammu & Kashmir.
How the first two apples fell into the basket is another story and not relevant here. The third apple, which at that time comprised of the largest (in area) of the princely states, had a Hindu Maharaja ruling over a large majority of Muslims, with Hindus and Buddhists forming the rest of the religious entities. Maharaja Hari Singh, a vainglorious individual, had dreams of remaining independent of both India and Pakistan, and therefore held out against signing the instrument. The Pakistani attempt to annex J&K by force through its sponsored tribal invasion in October 1947 forced Hari Singh’s hand and he had no choice but to sign the Instrument of Accession on 26th October 1947, when the raiders were almost at the gates of his palace. The Governor General of India accepted it the next day thereby legally bringing the state of Jammu & Kashmir within the Dominion of India. The Indian armed forces, with a legal mandate to stop the aggression of the invaders, swung into action and were driving the Pakistanis back into their territory when the Indian Prime Minister Jawaharlal Nehru, without consulting Sardar Patel, decided to announce a unilateral cessation of hostilities, and internationalized the dispute by bringing the United Nations in its midst. Within days of the signing of the Instrument of Accession, Nehru betrayed the Dominion’s commitment to the State to defend its territories against external aggression. Pakistan was still in control of 115,669 Sq. Kms. of Indian territory (of which it subsequently ceded 37,555 sq. kms. to China), while India had only 106567 Sq. Kms., or only 48% of the original 222,236 Sq. Kms. of the princely state. This betrayal of Nehru not only lost India a substantial part of the state, but also created a problem of intractable proportions that has bedeviled India ever since.
Perhaps India’s acceptance of the ceasefire line as the effective boundary between India and Pakistan, may have resulted in permanent peace, but for the fact that of all the Indian states that signed the Instrument of Accession, only the state of Jammu & Kashmir under the leadership of Sheikh Abdullah and the inept governance of the Sadr-e-Riyasat, Yuvraj Karan Singh, chose to create a separate Constitution for itself that would define its relationship with India. Though a large number of the Indian States had their representatives in the Constituent Assembly, and the Instrument of Accession gave them the power to draft a separate constitution for internal administration, none of them, barring Jammu & Kashmir, chose to exercise this option, as it was seen as a “Legacy from the Ruler’s polity which could have no place in a democratic set-up.” The rulers of these States issued proclamations making the Constitution of India operative in their States.
Jammu & Kashmir decided to invoke the terms of Clause 7 of the Instrument of Accession under which the State was not obliged to implement the Constitution of India in full. Instead, it decided to draft its own separate constitution. The Yuvraj of Jammu & Kashmir on the advice of his Council of Ministers of his State’s Interim Government led by Sheikh Abdullah told the Indian Constituent Assembly that the Jammu & Kashmir State’s association with India would be based ‘only’ on the terms of the Accession; that the State’s government did not accept the Constitution of India as a Constitution for the State, and that, despite accession, the State was still to be governed by its old Constitution Act of 1939.
Why the Prime Minister of India and Sardar Patel did not pressurize the Sheikh to do what the other States had done, and instead acquiesced to his demand is a mystery for which there are many conspiracy theories but no definite answer. Nehru’s softness towards Sheikh Abdullah is very well known and there are some who believe that Nehru did not want to thwart the Sheikh’s ambition of becoming a Prime Minister instead of a Chief Minister. Another school is of the opinion that Nehru acted under the influence of Lady Mountbatten.
However, as a result of this situation, when the Constitution of India was going to be operative in the entire nation, a special provision had to be made for the State of Jammu & Kashmir. This is the genesis of Article 370.
A Draft Bill labeled Article 306-A, making a special Constitutional provision for Jammu & Kashmir was moved in the Constituent Assembly by Sir Gopalaswami Ayyangar, Minister without Portfolio in Pt. Nehru’s government. Sri Ayyangar had already served as the Prime Minister of Kashmir from 1937 to 1943, and had received multiple honours from the British Government, culminating in a Knighthood in 1941. As Maharaja Hari Singh’s Prime Minister for seven years he was fully conversant with the State, and it is quite possible that he may have nursed the ambition of returning to the state as its Prime Minister when the British departed from the subcontinent, and the titular rule reverted to the Maharaja. Taking advantage of the prevailing hostilities with Pakistan in the area, Gopalaswami Ayyangar made the following argument in favour of his Bill:
“Till India became a Republic, the relationship of all the States with the Government of India was based on the Instrument of Accession. In the case of other Indian States, the Instruments of Accession will be a thing of the past in the new Constitution; the States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of accession for becoming units of the Republic. It would not be so in the case of Kashmir since that particular State is not yet ripe for this kind of integration due to special conditions prevailing in Kashmir. In the first place there has been a war going on within the limits of Jammu and Kashmir State —part of the State is still in the hands of the enemies, and in the second place, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity will be given to the people of the State to decide for themselves the nature of their Constitution.”
The Constituent Assembly recorded that since the debate regarding Jammu & Kashmir had reached a stalemate in the United Nations, it was decided to have an interim arrangement in the Constitution of India regarding Jammu & Kashmir. Sardar Patel, the then Minister of States in India, declared in the Constituent Assembly, “In view of the special problem with which the Jammu and Kashmir Government is faced, we have made special provisions for the continuance of the State with the Union on the existing basis.” Draft Article 306-A was subsequently added to the Constitution of India as Article 370. It is worth noting that the debate never became heated and even though Mahavir Tyagi wanted to move a couple of amendments, he never pressed them. Maulana Hasrat Mohani of U.P. was the only one who spoke that while he was “not opposed to all the concessions being granted to my friend Sheikh Abdullah,” he wanted to know “why make this discrimination about this ruler? If you grant all these concessions to the Maharaja of Kashmir, you should give all these and more concessions to the Baroda ruler.”
However, within the Congress Party there was a lot of dissent and members expressed their opposition to the Draft Article 306-A in no uncertain terms. A strong opinion existed against any suggestion of discrimination between Jammu & Kashmir State and other States as members of the future Indian Union. The party was not prepared to go beyond certain limits in making the special provision for Jammu & Kashmir. Cleverly, Pt. Nehru had entrusted this task to Gopalaswami Ayyangar at a time when he would be out of the country. When Ayyangar saw the opposition to his proposal, he went to Sardar Patel for help. The Sardar too had seen the draft proposal only in the meeting of the Congress Parliamentary Party. Although he was of the same opinion as the majority, being a gentleman, he is reported to have said: “Gopalaswami had acted under Panditji’s advice. How could I have let him down in the absence of his Chief?” L. K. Advani has recorded that “Patel asked the Congress Party Chief Whip to convene a Party meeting to discuss the matter. That meeting was stormier than the earlier one. Opposition was forcefully and even militantly expressed. It was left to the Sardar to plead that because of the international complications, a provisional approach alone could be made. The Congress Party reluctantly fell in line. Article 306-A was to be allowed to go through by Patel against his better judgment and because of his belief that the future would depend on the strength and guts of the Indian Government.”
Dr. B. R. Ambedkar, the architect of the Constitution too had his reservations about this provision. Initially Nehru had sent Sheikh Abdullah to Dr. Ambedkar to explain to him the position and draft an appropriate Article for the Constitution. He is reported to have told him, “Mr. Abdullah, 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 am the Law minister of India. I cannot betray the interest of my country.” It was only after Ambedkar’s refusal that Nehru approached Ayyangar to draft the proposal.
With Article 370 embedded in the Constitution of India, Jammu & Kashmir announced the formation of a State Constituent Assembly to draft a Constitution for the State. The Drafting Committee’s report was adopted by the Constituent Assembly on 15th February, 1954. The report embodied the ratification of the State’s accession to India. The State Constitution was formally established on 17th November 1956 and came into full force on 26th January 1957. It consisted of 158 Sections, of which Section 3 says, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.” Further, in Section 147 of the Constitution that deals with amendments, it is made quite clear that Section 3 is not amenable to any change. Yet, there is hardly any mention of this section in national debates.
Labeled as ‘Temporary provisions with respect to the State of Jammu and Kashmir’ right from the time it came into effect, the mischief lies in the interpretation of Sardar Patel’s statement in the Constituent Assembly regarding ‘special provisions for the continuance of the State with the Union.’ The article continues to be ‘temporary’ in our Constitution and Patel’s use of the word ‘special’ does not confer any permanence to it. Actually, it is Article 371 that specifies any “Special Provisions” and not Article 370. Even Pt. Nehru had declared on the floor of the Parliament on 27th November 1963 that “Samvidhan ki dhara 370 ghiste ghiste ghis jaayegi.” (“Article 370 of the Constitution would disappear by being eroded progressively.”)
Ayyangar’s draft of Article 370 contains one major blunder that seems to have escaped all the legal luminaries who finally approved it. After drafting the State’s Constitution and its adoption, the Jammu & Kashmir State Constituent Assembly was disbanded. However, Article 370 states that, “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.” This exception gives permanent life to an extinct body while it leaves no other mechanism for change. The far-reaching meaning of this blunder is that the President of India can make any amendments to the provisions of Article 370 only with the permission of a long-defunct and impossible-to-revive State Constituent Assembly. The introduction of the State Constituent Assembly instead of the State Legislative Assembly in the Article makes its repeal or amendment not only impracticable, but also impossible. So, before any attempt is made at repealing or amending Article 370, the Government should first correct this lacuna. How that can be done is for constitutional experts to determine!
Divergence In Laws
The resultant consequence of this defective Constitutional Article has, over the years, created a vast gap between the laws of our Republic and the state of Jammu & Kashmir. To list just a few of them:
- As per the Third Schedule mentioned in Article 188 of the Indian Constitution, the oath sworn by every member of the State Legislature before assuming office requires the member to “bear true faith and allegiance to the Constitution of India.” This is true of the affirmation by every High Court and Supreme Court judge as well. In Jammu & Kashmir however, every legislator and every judge, including the Chief Minister and the Chief Justice, is required to swear only by ‘the Constitution of the State’ as mandated in the Fifth Schedule referred to in Sections 64 and 97 of the Jammu & Kashmir State Constitution.
- While Article 172 lays down five years as the normal duration of a State Legislature, that stipulation is six years in Jammu & Kashmir as laid down in Section 52 of its State Constitution.
- Jammu & Kashmir is excluded from the application of Article 360 under which the Union Government can give directions to that State to observe canons of financial propriety and such other measures deemed necessary when a Proclamation of financial emergency is issued under that Article.
- Any law, if and when enacted about a Uniform Civil Code, will not be applicable to the State.
- Any law passed by the Parliament on Family Planning is not applicable to the State.
- The state is exempted from the law that requires a legislative assembly to not have more than 15% of its strength as ministers. Omar Abdullah’s cabinet at present consists of 24 members when it should have no more than 13.
- Refusal or failure to comply with any direction given by the Union Government under any provision of the Constitution of India applicable to Jammu & Kashmir will not be held as a misdemeanour by that State because the relevant Article 365 has not been extended to that State.
A detailed study of the relationship of the state with the Union will reveal many more areas of divergence that are only possible in other states as special provisions. Only in J&K the “temporary” Article 370 has become “immortal” due to the deliberate or genuine mistakes of the framers of our Constitution. M. P. Jain, a constitutional expert has neatly summed up this special relationship: “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.” The state has its own flag and an anthem called “Qaumi Tarana,” It is perhaps pertinent to point out here that the word ‘secular’ that was added to the earlier Preamble of the Indian Constitution by the 42nd Constitutional amendment in 1976, it has been omitted in respect of Jammu & Kashmir State. The latter’s Constitution of November 1956 therefore does NOT proclaim the State’s basic structure to be ‘secular’ in nature.
Jammu & Kashmir is the most autonomous of all the states in India, and one cannot understand the clamour for Azadi from the disgruntled Kashmiris. It is not as if Jammu & Kashmir is a very prosperous and financially robust state. The British, who had sold the state to Gulab Singh for Rs. 75 Lakhs in 1846, extracted an annual payment from the Maharaja in return for giving him protection against external enemies. The state was poor and the Maharaja taxed his subjects to the utmost. Under the Instrument of Accession, the Government of India was obliged to provide all the facilities at no cost to the state. Jammu & Kashmir depends heavily upon the Government of India for financial assistance, and yet it cannot be questioned for any profligacy. It is the most pampered state in the country. According to Arun Shourie ‘the per capita Central assistance to Kashmir is 14 times that to Bihar, it is 11 times that to Tamil Nadu, it is 6 times that to even a beleaguered State like Assam.’ Journalist V. Shankar Aiyar, writing “The Great Sop Story” in India Today of 14th Oct. 2002, says: “For all that talk of autonomy or azadi the fact is that Jammu & Kashmir cannot sustain itself without the Centre’s support.” According to him 3.48% of people of Kashmir are living below the poverty line, as against 26.10% across India. This, he avers, is because of the extraordinary amount of financial assistance the Centre gives to the state. Kashmiris have been surviving and living a rather luxurious life compared to the rest of India solely due to the largesse bestowed upon them by a munificent Centre. The statistics in Aiyar’s article make for very disturbing reading.
The Defective Article 370 of The Indian Constitution
Coming back to Article 370, there is a misconception among a number of people that this article prevents people from the rest of the country to purchase immovable property within the state. There is nothing within the article that points towards this restriction. The truth is that the Article 370 is the enabling Constitutional Article that allowed the State of Jammu & Kashmir to frame and adopt its separate Constitution, and it is that instrument, particularly Article 35A of the same that has these restrictions imposed upon the citizens of India. This article deals with laws with respect to the permanent residents of the state and their rights. Permanent residents, defined as “State Subjects” were set out in the State Maharaja’s Notification of 20th April 1927 read with the Notification of 27th June 1932. They were chosen on the criteria of year of birth in the State, on the period of permanent residence in the State and on the acquisition of immovable property in the State. It is Article 35A that forbids those who are not “permanent residents” from:
a) Acquiring immobile property.
b) Securing employment with the state government even though they may be citizens of India.
c) Becoming a member of a village Panchayat.
d) Being eligible for a State Government scholarship.
e) Being eligible to vote in the Assembly elections, even though they may vote for the Lok Sabha in their constituencies.
This perverse article of the State Constitution continues to bedevil the relationship between India and Jammu & Kashmir while Article 370 keeps bearing the brunt of the blame.
With this rather unavoidably long background history into the genesis and development of Article 370, I hope the reader is more enlightened about its role in our polity. The contingency of vote bank politics has put personal and party interests above national interest, and permitted the continuance of this fraud upon the poor people of India. No doubt the Government of India honoured the Instrument of Accession in both letter and spirit, but even after half-a-century, we are continuing to permit a temporary measure to hold us to ransom. The attitude of the powerful people in Kashmir and the general public is one of supreme disdain for India and it is doubly galling to see them extending their begging bowls expecting India’s largesse as some kind of divine right. They have forgotten that it was they who in 1947 had implored India to save them from the marauding Pakistanis who were pillaging the countryside, burning, looting, raping and destroying the very culture of Kashmir. The arrogance with which Omar Abdullah and his father speak is totally dependent upon the undeserved support they have been receiving from successive governments at the centre. Jammu and Ladakh have already distanced themselves from the valley in the manner in which they have voted in the latest general election. But as things are, it is the valley that will continue to call the shots in the State.
If Narendra Modi and his government wish to remove this dichotomy and fully integrate the state within the Union of India, he will first have to amend the provision that requires the concurrence of the defunct Jammu & Kashmir Constituent Assembly to make any changes in Article 370. To expect that the State Government will cooperate in this endeavour is going to be a dream. There is no other alternative but to use coercive methods to make the state fall in line. All the talk about the resettlement of Pandits in their original homes is so much baloney. The Pandits will not go back as there is no guarantee of their safety as also of employment. Too much water has flown down the Vistasta and they have built their lives elsewhere. Their children, born in refugee camps, are now adults with no memory of Kashmir or what is euphemistically called ‘Kashmiriyat.’ Even prosperous Muslims of the valley have found greener pastures outside Kashmir, and though they may have their links with the valley, they are spending more and more time away from it. Lack of educational infrastructure is taking most young people away from the valley and a lack of employment opportunities will perforce make them settle elsewhere. Also, to think that the removal of Article 370 will lead to a rush of immigration from the mainland into Kashmir is downright foolish. The religious demography is not going to change and Kashmir will remain a Muslim majority state. However, it is certainly desirable and advantageous for all to revoke Article 370 and bring the state into the Indian Union as an equal and full partner.
The way forward should begin with the lifting of the state of siege by sending the security forces into their barracks and by strengthening the military presence on the Line of Control. As a confidence-building measure, this is of paramount importance. The Armed Forces (Special Powers) Act also must be withdrawn. No doubt Pakistan and its sympathizers within the state will try to disturb the peace but our paramilitary forces should be able to anticipate and deal with them without letting them go out of hand.
The state cannot progress without investment in employment generation schemes. Polluting industries should be discouraged. Electronics could be given priority as the climate suits this type of industrial activity. Kashmir could be made into a knowledge centre and institutes of higher learning like an IISER could be opened there, attracting students and teachers from all over the country. More such institutes should be planned during the next five years. Kashmir can become an education hub with world-class institutes attracting teachers and students from all over the globe.
Tourism provides the biggest economic opportunity for the state. Infrastructure with regard to tourism must get top priority. All weather roads, linking every part of the state with adequate transport facilities must be on top of the agenda. The Railway connection that has been made at an enormous cost should be expanded, bringing more and more areas within its ambit. Srinagar Airport could become an international airport bringing in flights from friendly countries without the passengers having to transit through Indian airports. Religious tourism to ancient shrines like Amarnath and Vaishno Devi can earn huge revenues for the state.
I would leave Article 370 as it is because the current political atmosphere is not right and the state legislature is too arrogant to cooperate in this endeavour. Emotional integration must precede any political integration. However, to revive the economy of the state, massive investments will have to be made by the Centre. These investments should not be left to the mercy of the corrupt state government but should be disbursed and supervised by a competent Central Ombudsman, someone like the British Resident, who would be responsible for the deployment of central funds within the state and have no political role to play. Narendra Modi is perhaps the best person to undertake the task of reviving the economy of Kashmir because he does not subscribe to vote bank politics and is personally incorruptible. India has given itself a chance to redeem the freedom it won at such a heavy cost 67 years ago. It is now for Kashmir and especially for the residents of the valley to understand that history has given them a chance to jump back from the brink and to make that leap of faith.
Read More By Vijaya Dar