Suddenly after so many years we find ourselves incessantly debating over the article 370 with the 2014 Lok Sabha elections. A BJP minister brings the topic in the fore front, making us think over the 65 year old law of giving special status to Jammu and Kashmir. So, what is Article 370? Why and when was it incorporated? What is all this debate about? In this article I will try to answer these questions in as unbiased way as possible.
What is Article 370?
As written in the constitution of India,
Temporary provisions w.r.t to the state of Jammu and Kashmir—
(1) Not with standing anything in this constitution—
(a) the provision of article 238 shall not apply in relation to the state of Jammu and Kashmir;
(b) the power of the Parliament to make laws for the State shall be limited to—
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State of 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.
(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 specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in the paragraph (i) of the 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.
(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 the clause 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) Not with standing 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 notification.
In simple words:
- Jammu and Kashmir can have its own constitution and need not follow the constitution of India.
- The Parliamentary power over this state is restricted only to defence, external affairs and communication. For any other exercise of the central government’s power, the government needs ‘concurrence’ from the State government.
- This ‘concurrence’ of the central government with the State government is not indefinite and works for only an interim period.
- The article cannot be amended or altered with any amendment in the Constitution which applies to all other states. Amendment of Article 370 requires concurrence from state government and ‘the recommendation of the Constituent Assembly of the State’.
- The non-Kashmiri native cannot get a permanent residence in Kashmir and cannot buy property here whereas J&K citizens can buy property anywhere in India.
- Originally, due to gender bias, women who married outside the state had to forfeit their hold on family property to their next kin or had to sell it. Though, Jammu and Kashmir High Court denied any such constitutional law hence rejecting the controversial ‘Permanent resident status (disqualification) bill 2004’.
Why and when was it incorporated?
The Article 370 was formed in late 1947 between Sheikh Abdullah, the then appointed PM of J&K by the Maharaja, and Jawahar Lal Nehru. Sheikh’s ambition to be the sole ruler of J&K and his hatred for the Maharaja is at times quoted as the reason for Nehru to give special status to J&K. Nehru, on the advice of Mountbatten, went to the UN dragging the internal affairs of J&K despite immmence objects from the then Home Minister Sardar Patel and many other cabinet ministers. B.R. Ambedkar, who made the constitution of India, was against including Kashmir as a part of India and even more against article 370. Balraj Modhak said that Dr Ambekar had clearly told Sheikh Abdullah,”You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India. But Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal, would be a treacherous thing against the interests of India and I, as the Law Minister of India, will never do it.” Then the Sheikh went to Nehru who directed him to Gopal Swami Ayyagar who later dealt with this matter in the constituent assembly despite opposition from Patel who then resigned. Nehru was abroad when the final draft was being worked up in the assembly and was torn to pieces by the members. Nehru had to then contact Patel again to persuade him to get the article 370 passed in the Constituent Assembly. Though Patel managed to convince the Assembly he said to V Shankar, “Jawaharlal Royega.” Dr Ambedkar was so against this article that he never answered questions related to it even though he participated in arguments on other articles.
What is all this debate about?
The article came into existence to assure the citizens of Jammu and Kashmir of their freedom and to prevent their identity. But the biggest debate is how can they lose their identity by being a part of India? The right to education does not apply to Jammu and Kashmir. The state does not have to submit records of inflow/outflow of money. The special status of J&K instead of giving freedom and identity to the people is actually secluding them. The article hinders any industrial growth in the state and leads to unemployment. It is said that this unemployment and lack of resources pushes the youth into the hands of anti-nationalist activities for money. It is said that the article has only lead to discrimination between citizens of India and that the Kashmiris do not enjoy the rights of a normal citizen of the country. Many claim that the article is a harsh reminder that Kashmir is not a part of India and never will be. Many say that the existence of the article being a tactic for political supremacy in the state veiled by high flying statements of ‘freedom’ and ‘identity’. But then there also is the opposition which does not want this article to be scraped off. Chief Minister Omar Abdullah says, “Article 370 was the only constitutional link between Jammu and Kashmir and the rest of India” thus threatening a separation of the state from India if any changes are made.
All this makes us question if the ‘temporary’ article needs to be continued any more? But that will lead to extreme resistance. Nehru is blamed for his foolish decisions he made time and again despite objection from wise men but if past could be changed, we won’t be having this debate.