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Analysis Share This Page
Article 370: A Discriminatory Law Junked
by Dr. Jaipal Singh Bookmark and Share

Article 370 of the Indian Constitution granting special status to the state of Jammu & Kashmir and Article 35A added subsequently through a Presidential Ordinance have been one of the most debated and controversial subjects in the country. So much so that even Dr Bhimrao Ramji Ambedkar who is often cited as the father of the Indian Constitution is widely known to have opposed this discriminatory provision but was prevailed upon by Jawaharlal Nehru who was leading the nation as prime minister following the independence in 1947 largely with the blessings of Mahatma Gandhi who was undisputed leader of the freedom movement. Therefore, it is not surprising that the nation is passing through a critical phase with bitter and bloody interference externally from Pakistan and opposition internally from the Congress after annulment of these articles by Prime Minister Narendra Modi led NDA government by two-third majority in both the houses of Parliament in early August 2019.

There is a long history of opposition granting special status to J&K within the Congress itself since the inception of the Article 370. While Ambedkar’s stand is well known and documented, Syama Prasad Mukherjee was another Minister for Industry and Supply in Nehru's cabinet who vehemently opposed it so much so that he quit the Congress due to his differences with Nehru on the same issue. He founded Bharatiya Jana Sangh in 1951 and strongly raised voice against Article 370 as he considered the provision was a threat to national unity. Later he died in mysterious circumstances under the custody of Sheikh Abdulla led government in J&K in 1953 who had the support of the Congress and Nehru at the Centre. The erstwhile Jan Sangh, and later its successor Bhartiya Janta Party, constantly opposed the provision of the Article 370 with a resolve to end it. Even a mention of the provision for a debate generated strong reaction and protest from few Kashmir Valley based political parties and Congress all these years. Notwithstanding, the Modi led government finally did it what was something unimaginable by all till recently.

Article 370 & Its Implications


Under Part XXI of the Constitution of India that deals with "Temporary, Transitional and Special provisions”, Article 370 accorded special status to the state of Jammu and Kashmir (J&K). Under this article barring some exceptions, all the provisions of the Constitution which were applicable to other states were not applicable to J&K until and unless such provision was separately passed by the State Constituent (now Legislative) Assembly. The original text of the article is reproduced here:

“370. Temporary provisions with respect to the State of Jammu and Kashmir:-

(1) Notwithstanding anything in this Constitution,-

(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to -

(i) 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 the State to 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.

Explanation.-For the purposes of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948;

(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 paragraph (i) of 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 that clause 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.

(3) 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.”

While including the Article in Constitution, it was very clearly provided that it was a temporary and transitional provision and it is beyond any logic and rationale that a temporary and transitional provision should continue to exist even after lapse of more than six decades. Clause (1) (a) of the Article provides that provisions of Article 238 of the Constitution of India shall not apply in relation to the State of Jammu and Kashmir. Ironically, Article 238 relating to states had been repealed way back from the Constitution of India through seventh Amendment Act with the reorganization of states in 1956. Despite this fact, the Article continues to find a reference in the text of Article 370. Similarly, Dominion of India and Dominion Legislature referred to in Article (1) (b) (i) have since transformed into the Sovereign Social Secular Democratic Republic of India and Houses of Parliament - Lok Sabha and Rajya Sabha, respectively.

The above illustrations are suffice to indicate redundancy of the Article and how it has lost its relevance over a period of time. At the same time, Article 370 remained a hindrance in full integration of the State of J&K into the Indian Republic. According to this article, except for defence, foreign affairs, finance and communications, Indian Parliament needs the state legislature's concurrence for applying all other laws. Temporary provisions in the Article that the Central Government could make laws only with the concurrence of the State government, in effect gave the latter a decisive edge and veto power exploited constantly by a handful of separatists and political families of Valley with divided loyalty.

Yet another Article 35A allowed the J&K legislature to define permanent residents of the state. It was added through the Constitution (Application to Jammu and Kashmir) Order, 1954, which was a presidential order on the advice of the Nehru-led Union Government. This article empowered the J&K state's legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. This provision was added in violation of the norm that any amendment to the Constitution shall be done with the majority vote in both houses of the Parliament. While this article served political and other interests of a section of politicians and people in the Valley, it was clearly discriminatory against non-permanent residents and women of Jammu and Kashmir as also a hurdle in smooth integration and development of the state.

All the people of India have one citizenship while persons living in Jammu and Kashmir technically had two citizenships. Articles 352 and 360 of the Constitution provided for the declaration of national and financial emergency respectively but the same were not applicable to Jammu and Kashmir. A person, who was not a domicile of J&K, could not buy property in the state. Article 356 under which President of India can impose his rule in any state, is not enforceable in J&K without the consent of the Governor, ironically who himself is an appointee of the President. These are a few illustrative and not comprehensive discriminatory provisions. In a way, the Article was a constant reminder that J&K was yet to become integral part of India, giving leverage and opportunity to separatists and few political parties with vested interests as also the international community to consider it a disputed territory. In a nutshell, Article 370 only continued to give special privileges to a small territory and population, hindered the integrated development of state and created a sense of alienation, separatism, and secessionism in the minds of elements inclined to destroy the secular and democratic fabric of India.

How This was Done in Parliament!


This started with the Central Government taking a rather unprecedented decision to abruptly curtail the holy and prestigious Amarnath Yatra to Kailash Mansarovar and deploy several additional companies of paramilitary forces in the state of J&K during the first week of August 2019. This unprecedented action incensed political leaders and public leading to irrational outburst and reaction from many opposition leaders across the country in general and Kashmir Valley in particular. Nobody had any inkling about what was on cards and among tightening security they kept on guessing and speculating that something big and unexpected was going to happen in Kashmir. This inter alia included outcry and open threat of dire consequences from the leaders two political families of J&K, which have traditionally dominated and ruled the state since independence with or without cooperation of the Congress.

On 5 August 2019, Home Minister Amit Shah introduced two Resolutions and Bills each in the Rajya Sabha (Upper House) seeking scrapping of the parts of Article 370 and Article 35A simultaneously bifurcating the state into the union territories of Jammu and Kashmir which will have legislature and Ladakh which will be without legislature. Obviously, the bills aimed at gaining greater legislative and executive control of Centre in the region with a view to resolve the seventy years long Kashmir imbroglio. The legislation was passed by the Rajya Sabha with two-third majority through a voice vote with 125 being in favour and 61 against it. This was a significant development as the ruling political party, the Bhartiya Janta Party, did not have even a simple majority in the upper house. Such a massive mandate implied that the many members cut across the party lines to support the legislation in the upper house.

The Home Minister introduced the relevant bills and resolutions in the Lok Sabha (Lower House) on 6 August 2019. As the ruling NDA dispensation already has a comfortable majority in the lower house, hence the fate of bill was never in question. Accordingly after a day long debate, relevant resolutions and bills were passed in the Lok Sabha too with more than a two-third majority despite vehement opposition from the Congress and some other political parties. While the resolution on abrogation of the special status was passed in Lok Sabha by division of votes with 351 members in support and 72 opposing it, the Reorganisation Bill was passed with 370 members in favour and 70 against it. Thus ending the uncertainty over the J&K, the government finally succeeded in fulfilling its long-held promise on the state. The legislation removed the special status of the state thereby eliminating J&K’s right to its separate constitution and decision making in all areas except defense, foreign affairs and communications, paved way for its reorganization and uniform application of federal laws and schemes in the region.

In a nutshell, the relevant bills and resolutions were as under:

  • Constitution (Application to Jammu & Kashmir) Order, 2019 issued by President of India to supersede the 1954 order related to Article 370.
  • Resolution for Repeal of Article 370 of the Constitution of India (discriminatory clauses)
  • Jammu & Kashmir (Reorganisation) Bill, 2019
  • Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019

During the passage of bill, the support of crucial opposition parties and split within the Congress emboldened the BJP led ruling NDA in the Parliament. The chief opposition came from the Congress but the debate on the abrogation of Article 370 in the Lok Sabha left the Congress top leadership red-faced and embarrassed because many party members openly spoke in favour of repealing the discriminatory provision. Senior Congress leaders Jyotiraditya Scindia, Janardan Dwivedi, Milind Deora, Deepender Hooda and Ashwani Kumar were among those who favoured of the revocation of Article 370. In response to some opponents charging the move as a historical blunder, the Home Minister Shah defended the legislation by saying that this was not a historical blunder but they were rectifying the historical blunder now.

Almost simultaneous precautionary and preventive measures were taken by the Central Government by deploying troops, restricting mass assembly and movement, curtailing internet and phone facilities in J&K and house arrest of the leaders of the two prominent political parties of Kashmir Valley. The government made it clear that these measures were intended only to prevent certain nefarious elements from instigating violence in the State and thereby maintaining peace and order in the country. The Government also made it clear that henceforth they will not talk with the separatist elements and those who support cross border terrorism; instead, they would remain committed to talk to anyone who swears allegiance to the Indian Constitution and is committed for peace and development in J&K.

Response of Political Parties and People


The kind of support received in both houses of the Indian Parliament from the members cutting across the party lines to vote in favour of the abrogation of Articles 370 and 35A suggests that an overwhelming majority felt that these articles were indeed discriminatory in nature and hurdle in the development of the state and its integration with the nation. The relevant bills and resolutions received the support of many opposition parties, including the Biju Janta Dal, YSR Congress, Telugu Desham Party and Bahujan Samaj Party. On the other hand, the main opposition came from the Congress with other parties including the Dravida Munnetra Kazagam, Nationalist Congress Party, Revolutionary Socialist Party and the Samajwadi Party too opposing it. The Janta Dal (United), an ally of the National Democratic Alliance, opposed the move but did not participate in voting along with opposition Trinamool and Samajwadi parties. In general, the common people across the country felicitated the government and celebrated the legislative success.

In a healthy democracy, dissent and difference of opinion is given due weightage and deference. However, after any legislation is passed or a decision is taken on the basis of a majority vote, it is accepted and implemented uniformly by everybody. However, it appears that the central leadership of the Indian National Congress is unable to reconcile with the fact that the Parliament has passed certain resolutions and bills in respect of the erstwhile state of J&K with an overwhelming majority. A veteran Congress leader from Kashmir Valley, was found engaged in disinformation and inciting people charging the government of having destroyed the state of J&K. Another senior Congress leader from Tamil Nadu alleged that the ruling party would not have gone for the abrogation of Article 370 in case Kashmir had a majority Hindu population. While the J&K administration has constantly maintained that there has not been even a single civilian casualty since imposition of the preventive restrictions in the state, the Congress leader Rahul Gandhi stated that things were going very wrong in the state of J&K and people were dying there.

Reaction of International Community and Pakistan


In response to India's move to end special status for J&K and split it into two union territories, the most critical and sharpest reaction came from Pakistan, unnerved and frustrated, when its Prime Minister Imran Khan called for a special session of parliament and launched an all-out campaign against India at all possible forums. He downgraded diplomatic relations with India by recalling his ambassador home and asking Indian ambassador to leave his country, immediately sent out emissaries to the UN, China and several Islamic countries in order to up ante against India besides giving an open threat of another Pulwama like terror attack. Pakistan's biggest failure was its disappointment with the Organization of Islamic Countries (OIC) comprising of 57 Islamic nations, which contrary to Pakistan’s expectations merely called for resolving Kashmir issue through bilateral negotiations.

In another new low in bilateral trade relations, Prime Minister Imran Khan personally announced suspension of trade relations with India on 8 August 2019. As per available data, the bilateral trade between India and Pakistan in 2017-18 stood at $2.4 billion with India’s exports worth $1.9 billion and Pakistan’s imports merely at $0.5 billion, which amounted to just 0.3 per cent of India's overall merchandise trade. Similar tentative estimates of India's exports stand at approximately $2.06 billion and Imports from Pakistan at $0.5 billion in 2018-19. Besides, as per the World Bank reports the informal trade between India and Pakistan stands almost at 91% of formal trade. Thus the available data suggests that suspension of trade is likely to hit Pakistan hard while India will have minimum impact. India had granted most favoured nation status in trade to Pakistan in 1996 while the latter had never reciprocated to this gesture.

As a gesture of peace and cooperation, India and Pakistan had agreed in the past to run two trains namely Samjhauta Express between Lahore and Delhi, and Thar Link Express between Jodhpur and Karachi for the ease and convenience of the travellers of two countries. Following the repealing of Article 370, Pakistan unilaterally announced stoppage of these trains between the two countries and the trains now stand cancelled sine die. After Balakot strikes, Pakistan had closed its air space for India including all international flights and they have done it again despite clear indications that the earlier closure had adversely hit cash starved Pakistan economy more compared inconvenience caused to India. A for more dangerous development in the region is the rhetoric and false propaganda of the Pakistani prime minister and other Pakistani leaders, who are constantly threatening a nuclear war with India and invoking Islamic countries to stand up for Muslims brethren in Kashmir.

As for the United Nations (UN), it stopped any mediation on Kashmir after 1962 and, instead, has repeatedly advised both nations to settle dispute through bilateral talks despite Pakistan raising the issue every off and on apart from their yearly chorus in the UN General Assembly, a stand consistently taken by India during the last five decades. Just to recapitulate the thrust of failed UN resolutions on Kashmir in 1948 and afterwards, three main points suggested in the same order were the withdrawal of all Pakistani nationals and tribesmen from the illegally occupied Kashmir territory, progressive reduction of the Indian troops to the minimum level in Kashmir and finally carry out a free and impartial plebiscite. Both countries had some reservations on conditionalties but the main reason for the failure remained non-fulfillment of the very first point by Pakistan i.e. withdrawal from the occupied territory.

In the instant case too, Pakistan gave an immediate call to the UN to intervene citing a risk of a possible nuclear war in the event the world community failing to ensure status quo by the Indian government in J&K. They did not receive any favourable response from the UN other than the usual advice of resolving the issue through bilateral talks. Among the world community, only China appeared to support Pakistan’s stand by resorting to its usual trick of initially endorsing the line of resolution of dispute raised by Pakistan by exercising mutual restraint and negotiations, then giving surprise by calling for an urgent discussion of the issue in the UN Security Council and separately raising concerns about Ladakh. The Security Council indeed held a closed door meeting without inviting the affected parties despite China’s push to allow Pakistani representative to participate but the Council concluded without issuing any press note or resolution. As nothing was officially shared, it is difficult to say what actually transpired but it is generally believed that the move of China against India did not receive support from any other permanent or non-permanent members.

The above position is vindicated by the fact that the Russia openly supported the legislation on Kashmir citing it an internal matter of India and that no other country had any locus standi in the matter. Russian Foreign Ministry unequivocally said that the changes associated with the status of the state of Jammu & Kashmir and its division into two union territories, were carried out within framework of the Constitution of the Republic of India. This position has again been reiterated by the Russian Ambassador recently in Delhi and a similar stand has been taken by France, another permanent member country in the UN Security Council. The United State President had created flutter sometime back when he made a statement that Indian Prime Minister was keen for his mediator role in Kashmir, a position that was immediately refuted by the Indian External Affairs Ministry spokesperson. Such speculations were more recently put to a conclusive rest during the meeting of G-7 nations wherein India was also invited. The Indian Prime Minister categorically ruled out role of any third country in the Kashmir issue in the presence of US President who simultaneously endorsed the Indian position. Earlier the US States Department had already announced that there was no change in US official policy in respect of the Kashmir issue.

Kashmir in the Aftermath of Legislation


Even before moving the relevant bills and resolutions in the Parliament, the Central Government had taken drastic and rather extraordinary measures to ensure that there is no trouble or violence in the valley and other parts of the state. By the time of writing these lines, almost a virtual communications blockage remains in most of the sensitive districts of Kashmir Valley. While the situation across the three regions Jammu, Kashmir and Ladakh is largely peaceful and people are allowed to move for urgent work and emergency needs, considerable restrictions are still enforced on routine business and assembly of people. Barring exceptions, the educational institutions have been opened in phases but considerable restrictions on internet and mobiles exist. Special precautions are being taken in Srinagar where the majority roads are barricaded and traffic carefully regulated. Besides, the political leaders of Kashmir Valley namely Mehbooba Mufti, Omar Abdullah, Sajjad Lone and several separatist leaders have either been arrested or put under house arrest.

As for the rest of Indians, most of them rejoiced, celebrated and returned back to their usual routine. The fact is Kashmir is still under restrictions in varying degree at varying places and the normalcy in day to day life and restoration of internet, mobile services and free movement needs no over emphasis. To that extent, those who are constantly raising these issues are not entirely wrong. However, this reminds me the saga of Kashmiri Burhan Wani, who was young, smart, bold and social media savvy but was misguided and resorted to terrorism. He became a hardcore terrorist and met a nemesis of terrorist at the hands of security forces. Separatists and even mainstream political parties tried to project his death as a sacrifice and, consequently, thousands of people participated in his funeral. Security restrictions were not in place, so miscreants and rumour mongers had their way leading to protests and violence that took a toll of over hundred lives and thousands injured in the Valley. Finally, curfew was imposed, internet and mobile services remained curtailed for over seven weeks and restoration of normalcy took many months. We have many such precedents as learning lesson; hence people opposing security restrictions must be patient and allow the Union Territory administration and security forces the requisite time to ensure normalcy without loss of life and damage to property.

The Government aggressively maintains that the constitutional changes will usher in an era of prosperity and progress for the people of Kashmir. A massive investment including considerable job opportunities is being planned for the union territories of Jammu & Kashmir and Ladakh to be implemented in a short timeframe. The Government has also planned to launch a month long campaign to educate people about the benefits of the legislation on J&K which was passed in both houses of Parliament with two-third majority of members present and voted. The overwhelming support to this legislation in the Parliament also vindicates the view that the majority of people and political parties were against this discriminatory provision in the Constitution but it was the lack of political will, courage and initiative that this temporary and discriminatory law lasted for so many decades after independence. Accordingly, when Prime Minister Modi and his party took this initiative, members of parliament cutting across the party lines voted for its abrogation.

Three most important organs of a parliamentary democracy are the legislature, executive and judiciary. The members of Parliament represent the legislature and wish of the people while the government represents the executive responsible for the execution and implementation of laws and policies. The Parliament has passed needful legislation for the repeal of Articles 370 and 35A as also reorganization of the erstwhile state of J&K with the requisite majority and the government is dutifully engaged to take all necessary measures to maintain peace and prosperity in the region. In the meantime, more than a dozen suits have been filed in the Supreme Court challenging the legislation. The litigants are members of the political parties, activists and individuals, who are unhappy with the legislation; some of them even working on proxy at the behest political parties which want to avoid direct involvement. Only time will tell the correctness or otherwise of the legalities of the government decision which has been welcomed and hailed by Indian masses.

Epilogue


Pakistan’s claim on Kashmir is based on the premise that the state has a majority Muslim population while it was legally integrated with India through an instrument of accession after Pakistani army backed tribals and mercenaries attacked Kashmir to forcibly capture it in 1947-48. It was clear from the beginning that the Two-Nation Theory was erroneous and not tenable in the long run yet its fallacy was badly exposed again in the sub-continent when the commonality of religion could not hold West and East Pakistan together even for few decades. Today, India as a secular democracy has almost equal Muslim population compared to Islamic Pakistan and religion can no more be a basis for further partition of the country. As Pakistan constantly refused to reconcile with the realities and actively engaged in terror and LOC violations, the state of J&K could not stabilize even after seventy years of independence. Instead, it remained a constant sore point for the peace and prosperity of the region and a recurring trigger point for escalation of hostilities. Difficult problems require an out of box thinking and a bold initiative, and Modi government has shown their grit and resolve to overcome the Kashmir imbroglio by taking such an initiative. The decision should be welcomed and it should be left to time to reveal its efficacy in due course.

As in the past, Pakistan, the Western media, some political parties and English speaking elites of the country are indulged in a tirade against the Government in an endeavor to demonize it for every move in the troubled region. Besides Kashmir, many other parts in the country with a troubled history have had curfews, civil restrictions and shutdown of internet and mobile services in the past. So it is not something unusual to take preventive measures in Kashmir to keep miscreants at bay in their designs of fomenting trouble, thereby preventing any loss to life and property of the people. After the life returns back to normal routine, the Government may have to work hard for introducing and implementing multiple welfare schemes in both Union Territories to improve the quality of life there while simultaneously striking a balance with adequate security. The Government has already committed in the Parliament that the status of a full state would also be restored back to Jammu and Kashmir as soon as the situation there is secure and conducive enough for a normal business.
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31-Aug-2019
More by :  Dr. Jaipal Singh
 
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