Understanding Article 370

By Divya Murugesan

Edited by Nidhi Singh, Junior Editor, The Indian Economist

Where the mind is without fear and the head is held high
Where knowledge is free
Where the world has not been broken up into fragments
By narrow domestic walls…
…Into that heaven of freedom, my Father, let my country awake.

–Rabindranath Tagore

The burning issue of Article 370 is back into the picture again, with many in the newly formed Modi government talking of revoking it. The common feeling is that Article 370 goes against the romantically envisaged India that ‘hasn’t been broken up into fragments by narrow domestic walls’. Given the clear majority of the NDA (336 0ut of 543 seats) in the Parliament, their whims and wishes will surely be carried out. In light of this, it has become highly imperative to scrutinize the provisions and the implications of this article before we make up our minds about whether such accommodative provisions encourage or impede secessionist tendencies.

UNDERSTANDING ARTICLE 370

HISTORY

Article 370 is one of the ‘Temporary and Transitional Provisions’ of Part XXI of the Constitution. It came into existence in 1949 when then Prime Minister, Jawaharlal Nehru directed Sheikh Abdullah, to consult Dr. B.R. Ambedkar to frame a suitable article regarding Kashmir, to be inserted in the Constitution. Behind this demand for a ‘special status’ for Kashmir, Abdullah gave the reasons of occupation of one-third of J&K by Pakistan, referring of Kashmir to UN by Nehru and the plebiscite that was never conducted in the state.

Upon hearing the request of Article 370 from Sheikh Abdullah, Ambedkar, advised him against it, arguing that for Kashmir to be fully integrated with India and for it to develop at the same pace as the rest of India, it shouldn’t be given a special status.

Since Nehru had given his word to Sheikh Abdullah regarding autonomous provisions and a special status to the state of J&K, he directed him to Gopalaswamy Ayyangar, who then asked Sardar Patel to handle this issue of Nehru’s ‘prestige’. It was Ayyangar and not the principle drafter of the constitution, Ambedkar, who drafted Article 370. The Article was passed by Patel when Nehru was on a foreign trip.

PROVISIONS

The Temporary provisions with respect to the State of Jammu and Kashmir mean that though J&K forms a part of the Indian Union, the provisions of Article 238 don’t apply in the state. The power of Parliament to make laws for the said state shall be limited to 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 State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State.

Hence according to this article, except for a few subjects like Defence and foreign affairs, the Centre needs the state’s concurrence for application of all laws, giving it ‘veto power’ of sorts.

Articles 352 and 360 which pertain to the declaration of national and financial emergencies respectively do not apply to this state. The laws of Anti-Defection along with others like Wealth Tax, Gift Tax & Urban Ceiling Act are also not applicable here.

Moreover, article 365, which provides for imposing President’s rule in states, cannot be applied here without the consent of the Governor, who himself is an appointee of the President. The centre, also, cannot alter the border of the state.

A major point of criticism has been the property laws by which a woman loses her right to buy property in this state upon marrying a non-resident of this state while, a man doing the same, still retains his rights as a citizen of J&K. In 2004, the J&K High Court upheld that there was no legal basis of the provision of a female losing her permanent resident status after marrying outside the state, in the State of J&K vs Sheela Sawhney case; but soon after, the People’s Democratic Party led by Mehbooba Mufti passed a law to overturn the court judgment by introducing the Permanent Residents (Disqualification) Bill, 2004 which was further backed up by Omar Abdullah’s National Conference.

This article was given due importance by Indira Gandhi too, who in 1974 signed an accord with Sheikh Abdullah stating, “The State of Jammu and Kashmir, which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India.”

Given such provisions, many feel that it conveys the wrong signal to separatists as the special status or differential treatment to the residents of this state alienates them and fuels their secessionist tendencies further.

AN ALTERNATIVE VIEW

What many people fail to acknowledge is that it may be the erosion of the said article and its diminishing relevance, which fuel the secessionist tendencies. Article 370, today, lacks the essence it had at its birth, with a series of Presidential Orders eroding it substantially.

The most important prerequisite for any separatist tendency to develop is a vulnerable population, as it is usually only when the majority of the population is unhappy with the existing system, for various social, political and economic reasons, that such ideas manifest in the minds of the populace.

There can be striking similarities drawn between the Naxalism affected areas and the terrorism/ insurgency affected areas of Jammu and Kashmir and the north eastern states. All the above said regions have very poor human development and demographic parameters and the same theory of a vulnerable population can be applied to all these states. As separatism in this region has grown with Kashmiris feeling alienated from political and decision-making processes, it is devolution of power which will help them regain faith in the democracy of India.

Those who blindly blame Article 370 for the rise of separatist movements in J&K must comprehend that such movements are usually won or lost through the will of the population and hence, the most successful counteracting forces should be focused on meeting the economic and political needs of the populace in order to win back their support. Since such movements attempt to win the support of the population by either promising a better life or coercing them through terror, assuring them that it is more beneficial to be an integral part of the Indian Union, rather than to secede, is a better way of securing their trust and curbing the rise of any alienation.

In such circumstances, the revocation of article 370 will not achieve the purpose of integration that we dream of, as this article is the sole surviving proof of the accommodative and decentralized nature of efforts that India is putting in for the integration of J&K. Also, in the presence of the so-called ‘draconian’ AFSPA and little talk about amending it, this article provides some sort of respite and a degree of non-intervention of the centre in state matters. With the continuation of AFSPA as well as the revocation of the special status of J&K, Tagore’s envisaged integrated and harmonious country will remain a far-fetched dream.

Also, the difficult and challenging integration of this state lies in the fact that it is a bordering area with Pakistan and is highly prone to terrorism. The inaccessibility to basic living conditions like healthcare, safe drinking water and sanitation, education etc. has amplified the voices demanding ‘Azad Kashmir’. The lack of employment and connectivity, again, contributes majorly to the woes of the residents.

The literacy rate in 2011 in J&K was 68.74%, lesser than the all India average of 74.04%. The statistics don’t paint a promising picture with the sex-ratio being 883 in the same year as compared to an all India figure of 940. Also, among a total of 451.4 million jobs created in 2009, J&K’s fraction was a dismal 4.7 million.

Moreover, since this region has great potential for tourism, areas like Kashmir Valley, Ladakh, and Jammu can be developed in order to get a flow of revenue as well as provide employment to the locals there. This achieves the twin goals of tourism and infrastructure development as well as improving human development parameters.

It is only by addressing these issues and taking affirmative steps like providing good education, proper public healthcare facilities, viable roads, and most importantly, a safe environment to live in, can one think of making J&K as much a part of India as any other state.

The removal of this article is again, not a cake-walk, without the consent of the state government. According to Clause 3 of Article 370, the President may declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. Of course, the Parliament too, has the power to amend the Constitution in order to change this provision. But this could be subjected to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and hence, cannot be amended.

Though many provisions of this much disputed article- like that of females seeking fresh permanent residency after marriage (which reflects gender bias), non- applicability of various laws and the ‘veto power’ of the state has over the decisions of the elected law-makers of this country- come across as undemocratic, it is in the best interest of J&K as well as India to secure the well being of the residents and to free their minds from fear before thinking of revoking this article as fear cuts deeper than swords!

References:

1) Wikipedia

2) Understanding Article 370 By Amitabh Mattoo

3) Article 370: The untold story By Maj Gen Sheru Thapliyal

4) Statistical data obtained from Planning Commission website

Divya Murugesan

The author is currently pursuing B.A. (Hons) Economics at St Stephens College. She is a zealous writer who likes to share her political and social opinions. She holds prior experience as an editor at Sanskriti School, Chanakyapuri, writes regularly at The Stephanian Forum and has also contributed as an editor to Eureka Wow. A music lover and an enthusiastic reader among many other things, she also likes to spend her time, sketching and painting. She believes in taking each day as it comes and living life to the fullest!