Article 370: Law and politics

 Article 370: Law and politics 

Article 370 of the Indian constitution gave special status to Jammu and Kashmir and a part of the larger region of Kashmir, which has been the subject of dispute between India, Pakistan, and China since 1947 allowing it to have a separate constitution, a state flag and autonomy over the internal administration of the state. 

The article was drafted in Part XXI of the Constitution :Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After consultation with the state's Constituent Assembly, the 1954 Presidential Order was issued, specifying the articles of the Indian constitution that applied to the state. Since the Constituent Assembly dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.

This article, along with Article 35A, defined that the Jammu and Kashmir state's residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to resident of other Indian states. As a result of this provision, Indian citizens from other states could not purchase land or property in Jammu & Kashmir.

On 5 August 2019, President Ram Nath Kovind issued a constitutional order superseding the 1954 order, and making all the provisions of the

Indian constitution applicable to Jammu and Kashmir. On 5 August 2019, the Home Minister Amit Shah introduced the Jammu and Kashmir Reorganisation Bill, 2019 in the Rajya Sabha to convert Jammu and Kashmir's status of a state to two separate union territories, namely Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The union territory of Jammu and Kashmir is proposed to have a legislature under the bill whereas the union territory of Ladakh is proposed to not have one. By the end of the day, the bill was passed by Rajya Sabha with 125 votes in its favour and 61 against (67%). The next day, the bill was passed by the Lok Sabha with 370 votes in its favour and 70 against it (84%). The bill became an Act after it was signed by the President.

The two union territories will come into existence on 31 October 2019, which is birthday of Sardar Patel, who unified all the princely states except Jammu and Kashmir (princely state) in independent India.

The suzerainty of the British Crown over the Princely States

Prior to partition in 1947, British rule over India comprised two separate categories of geographical regions. One comprised various provinces administered by the Viceroy of India and the other comprised provinces ruled by Maharajas, Princes, Nawabs, etc. There were 565 princely states existed in India during the period of British rule. These were not parts of British India proper, having never become possessions of the British Crown, but were tied to it in a system of subsidiary alliances. All of these were collectively designated as "Indian States”. For these states the British looked after the areas of defence, foreign policy and communications while they were allowed governance in internal matters such as law and order, civil liberties, health, education and economic development. The state of J&K was one of them.

The Government of India Act 1935 introduced the concept of the Instrument of Accession, wherein a ruler of a princely state could accede his kingdom into the 'Federation of India'. The federation concept was initially opposed by the Indian princes, but accession of all the princely states was almost complete when World War II occurred. In 1947 the British finalised their plans for quitting India, and the question of the future of the princely states was a conundrum for them. As they were not British, they could not be partitioned by the British between the new sovereign nations of India and Pakistan. The Indian Independence Act 1947 provided that the suzerainty of the British Crown over the princely states would simply be terminated, effective 15 August 1947.

On 20 February 1947, His Majesty's Government announced that British India would become independent. Facing the state’s rulers on 11 July that year, Lord Mountbatten, the Viceroy, said: “The Indian Independence Act releases the states on 15 August from all their obligations to the Crown. The states have complete freedom - technically and legally they are independent’. At a meeting held on 25 July 1947, Mountbatten advised the princes that they should accede to one of the two dominions, keeping in mind the ‘geographical contiguity of their states’, while surrendering power over three specified subjects, without any financial liability.

By 14 August,1947 most states had signed the instrument of accession (IoA) – either with Pakistan or India and the era of the princely states effectively ended with Indian independence in 1947. The accession process was largely peaceful, except in the cases of Jammu and Kashmir which opted for independence but decided to accede to India following an invasion by Pakistan-based forces.

The Crisis of Jammu & Kashmir

On 12 August 1947 the Maharaja of Jammu & Kashmir proposed a Standstill Agreement with India and Pakistan on matters, pending his final decision regarding the future of the state. Pakistan accepted this while India asked the Maharaja to send its representative for discussions. The Pakistan government then started putting pressure on the Maharaja to join Pakistan. It also started an economic blockade from Pakistan, while the government was pleading special reasons for its inability to supply Kashmir with essential commodities, The Muslim League’s official organ The Dawn, wrote on 24 August 1947, -The time has come to tell the Maharaja of Kashmir that he must make his choice and choose Pakistan”. Should Kashmir fail to join Pakistan, “the gravest possible trouble would inevitably ensure.” Pakistan had made its intent clear.

Twice, in September 1947, the Maharaja offered accession to India on the condition that his reservations with respect to Sheikh Abdullah – then under arrest be respected. On both occasions, Jawaharlal Nehru insisted that Abdullah be released to head a popular government. As Hari Singh did not accept Abdullah the initiative proved abortive. The reason to his dislike was that Abdullah had launched the ‘Quit Kashmir Movement’ against Dogra rule and was tried for treason and jailed for nine years on 20 May 1946. As a lawyer, Nehru wanted to represent Abdullah but was stopped as he crossed into the state at Kohala. On account of Nehru’s friendship with Abdullah the Maharaja did not trust Nehru.

On the fateful night of 21/22 October,1947 some 5,000 Pathan tribesmen invaded the state; looting, killing and raping along the way. The Maharaja wanted the Indian Army to drive out the invaders for which he needed to sign the IOA. This he did on 26 October 1947 which was accepted the very next day by India’s Governor General, Lord Mountbatten. Subsequent to Accession, Lord Mountbatten wrote a personal letter to the Maharaja saying “it is my government’s wish that, as soon as law and order is restored in Kashmir and its soil cleared of the invader, the question of the state’s accession should be settled by a reference to the people.” However, Pakistan refused to recognise this accession.

In the early hours of 27 October 1947, India began an operation.By 7 November,1947 Indian troops won the battle of Shaltang, thereby removing all threats to Srinagar. Three days later, Baramulla was recaptured. The process of retreat by the enemy on all fronts began. The Indian Army soon realised that the only way to completely remove the raiders was by attacking their bases and sources of supply in Pakistan. On 22 December 1947, India warned Pakistan that unless Pakistan denied her assistance and bases to the invaders, India would be compelled to take such action.

At that critical stage, Lord Mountbatten urged Nehru about “the overwhelming need for caution and restraint”. He stressed that “embroilment in war with Pakistan would undermine the whole of Nehru’s independent foreign policy and progressive social aspirations.” On Mountbatten’s advice, Nehru decided to lodge a complaint to the United Nations Security Council. That was done on 1 January 1949.

On 5 January 1949, the UN Commission for India and Pakistan proposed a resolution whereby the future of J&K would be determined by a democratic method of a plebiscite conducted by India under the UN’s auspices but after Pakistan withdrew its troops from the state and disbanded its Azad Kashmir forces. India declared a ceasefire on 1 January and areas occupied by Pakistan were not recovered resulting in creation of Pak Occupied Kashmir (PoK)

Framing of Article 370

Article 370 was worked out in late 1947 between Sheikh Abdullah, who had by then been appointed Prime Minister of J&K by the Maharaja and Nehru, who kept the Kashmir portfolio with himself and kept Sardar Patel, the home minister, away from his legitimate function. 

While it was Mountbatten who persuaded Nehru to take the J&K issue to the UN, it was Sheikh Abdullah, who, driven by his ambition to be ruler of an independent Kashmir and his hatred for the Maharaja, persuaded Nehru to give special status to J&K. Among his reasons were- occupation of one third of J&K by Pakistan, reference to the UN and plebiscite. The most sinister aspect of proposed Article 370 was the provision that any changes could be brought about in it only by the concurrence of J&K assembly.

Nehru’s promise that Article 370 was a temporary provision and will get eroded over a period of time has turned out to be a chimera. The first thing that Sheikh Abdullah got done was to abolish hereditary monarchy and re-designate him as Sadar-e-Riyasat who was to be elected by the Assembly. The accession of J&K State into Indian Union was approved by J&K Assembly only in 1956. 

This was in tune with Sheikh Abdullah’s long ambition. On 30 October 1947, The Maharaja had issued an order appointing Sheikh Abdullah as the Head of the Emergency Administration. The National Conference leaders rejected the model and wanted power to be transferred to them without any reservations. On 2 December 1947, Nehru wrote to Maharaja Hari Singh asking that Sheikh Abdullah be appointed as the Prime Minister of J&K and he should be asked to form the government.

On 5 March 1948, the Maharaja appointed an Interim Government with the Sheikh as Prime Minister.

Negotiations were held on May 15 and 16, 1949 at Vallabhbhai Patel's residence in New Delhi on Kashmir's future set-up. Nehru and Abdullah were present. Foremost among the topics were "the framing of a Constitution for the State" and "the subjects in respect of which the State should accede to the Union of India." On the first, on May 18,1949  ,Nehru recorded in a letter to the Sheikh that both Patel and he agreed that it was a matter for the State's Constituent Assembly. On June 16, 1949, Sheikh Abdullah, Mirza Mammad Afzal Beg, Maulana Mohammed Saeed Masoodi and Moti Ram Bagda joined the Constituent Assembly of India.

Article 370 embodied six special provisions for Jammu and Kashmir. It exempted the State from the provisions of the Constitution providing for the governance of the States. Jammu and Kashmir was allowed to have its own Constitution within the Indian Union.

Second, Parliament's legislative power over the State was restricted to three subjects - defence, external affairs and communications. The President could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the Instrument of Accession. For this, only consultation with the State government was required since the State had already accepted them by the Instrument. But, third, if other constitutional provisions or other Union powers were to be extended to Kashmir, the prior concurrence of the State government was required. The fourth feature is that that concurrence was provisional. It had to be ratified by the State's Constituent Assembly. Article 370(2) says clearly: "If the concurrence of the Government of the State... 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."

The fifth feature is that the State government's authority to give the concurrence lasts only till the State's Constituent Assembly is "convened". It was an "interim" power. Once the Constituent Assembly met, the State government could not give its own "concurrence". Still less, after the Assembly met and dispersed.

Moreover, the President cannot exercise his power to extend the Indian Constitution to Kashmir indefinitely. The power has to stop at the point the State's Constituent Assembly drafted the State's Constitution and decided finally what additional subjects to confer on the Union, and what other provisions of the Constitution of India it should get extended to the State, rather than having their counterparts embodied in the State Constitution itself. Once the State's Constituent Assembly had finalised the scheme and dispersed, the President's extending powers ended completely.

The sixth special feature, the last step in the process, is that Article 370(3) empowers the President to make an Order abrogating or amending it. But for this also "the recommendation" of the State's Constituent Assembly "shall be necessary before the President issues such a notification".

Article 370 –An impediment

The ruler of Jammu and Kashmir acceded to India by an Instrument of Accession like all other Princely states of India. All the princely states were invited to send representatives to India's Constituent Assembly, which was formulating a constitution for the whole of India. They were also encouraged to set up constituent assemblies for their own states. Most states were unable to set up assemblies in time, but a few states did, in particular Saurashtra nion, Travancore,Cochin and Mysore. Even though the States Department developed a model constitution for the states, in May 1949, the rulers and chief ministers of all the states met and agreed that separate constitutions for the states were not necessary. They accepted the Constitution of India as their own constitution. The states that did elect constituent assemblies suggested a few amendments which were accepted. The position of all the states (or unions of states) thus became equivalent to that of regular Indian provinces. In particular, this meant that the subjects available for legislation by the central and state governments was uniform across India.

In the case of Jammu and Kashmir, the representatives to the Constituent Assembly requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State's constituent assembly. This was a "temporary provision" in that its applicability was intended to last till the formulation and adoption of the State's constitution. However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370.

Article 370 has been the biggest impediment to integration of J&K State into Indian Union. That it was incorporated in the Indian Constitution by the machination of two individuals – Sheikh Abdullah and Nehru is all the more regrettable. Though Nehru had to eat the humble pie when he had to arrest the Sheikh for his divisive and anti-national stance on 8 Aug 1953 but he did not let go of his concept of keeping J&K a separate entity. In 1957, some top leaders of National Conference led by Mr Qasim split the party and formed a group called Democratic National Conference (DNC). 

Why is Article 370 detrimental to the full integration of J&K state into Indian Union. Firstly, the Central Govt can make laws only with concurrence of the State govt, practically giving it the Veto power. Article 352 and 360 for declaration of national and financial emergency respectively cannot be applied in Kashmir. While a citizen of India has only Indian citizenship, J&K citizens have two citizenships. Anti-Defection Law is not applicable to J&K. No outsider can buy property in J&K state. The beneficial laws such as Wealth Tax, Gift Tax & Urban Land Ceiling Act and intermarriage with other Indian nationals do not operate in J&K State. Even Article 356 under which President of India can impose his rule in any state cannot be enforced in J&K without consent of the Governor who himself is an appointee of the President. State of J&K can refuse building of any cantonment on any site or refuse to allot land for defence purposes.

In a recent interview to a TV channel, Prime Minister Narendra Modi stated that Article 35A and 370 held back development in Jammu & Kashmir "There must be investment and job opportunities in Jammu and Kashmir. Article 35A, 370 have been standing in the way of development. No one goes there to invest. We can build IIMs, but professors are not ready to go there as their children don't get admission in schools. They can't find homes. This ends up harming the interests of J&K. Pandit Nehru's policies stand as an obstacle for J&K today. It needs to be reviewed," the Prime Minister said.

It is often forgotten that J&K state is not a homogeneous entity. Apart from Valley Muslims, Jammu has a predominantly Hindu population while Ladakh has a mix of Buddhist and Muslims. Then we have the Gujjars & Bakarwals. The crisis of J&K has remained only in valley and is untouched at Jammu and Ladhak regions.

But when some vested interests raise an outcry that legitimate rights of Kashmiris are being trampled upon with the stated agenda of National Conference to return to pre 1953 status, the question remains as why should a state of Indian Union have a special status? It conveyed a wrong signal not only to Kashmiris but also to the separatists, Pakistan and indeed the international community that J&K is still to become integral part of India , that makes abrogation of Article 370 an imperative.

Kashmir is not the valley alone, it encompasses vast land inhabited by follower of all faiths and has been an important centre of Hinduism , of Buddhism and Sufism and deeply connected with soul of India. Its integration is towards making of one land , one law , one nation.