Bye Bye Article 370 - A Corrective Action for Historical Mistake

Kunal Bharti
Political and Social Analyst

In an unprecedented move, the BJP led Government of India has announced the revoking of the contentious Article 370 from Jammu and Kashmir with immediate effect. This means that Jammu and Kashmir will no longer be a state and will be considered a Union Territory henceforth. While this move was being contemplated from a long time, it is being put into effect at present. This means that Jammu and Kashmir will no longer hold special rights, and even the Article 35A issued by the President of India on 14 May 1954 would be scrapped. The announcement came after Union Home Minister Amit Shah confirmed in Rajya Sabha that President Ram Nath Kovind has signed an order that would abrogate Article 370 from J&k. As soon as the announcement was made public, it sent social media across the world into a frenzy. Although the revocation of the article sharply divided opinion, it was talked about in every sphere. Revocation of article 370 in auspicious month of shravana. The month of Shravana is very important for the entire sub-continent of India as it is connected to the arrival of the South-West monsoons. For many Hindus, the month of Shraavana is a month of fasting and devotion to lord Shiva. This has remind us the the enthusiasm of 'August kranti' or popularly known as August movement (Quit India movement) was a movement launched at the by Mahatma Gandhi on 8 August 1942, during World War II, demanding an end to British Rule of India.

Jammu and Kashmir consists of three geographically and culturally distinct regions: the Hindu majority Jammu Division (25.9% of total area), the Muslim majority Kashmir Valley (15.7% of total area), and Ladakh (58.4% of total area) which has a combined Buddhist-Hindu majority. J&K acceded to the Dominion of India after the Instrument of Accession was signed by Maharaja Hari Singh, the ruler of the princely state of Jammu and Kashmir, on 26 October 1947. The history of Article 370 can be traced back to British India's partition, when the country was divided into India and Pakistan. Jammu and Kashmir at the time was ruled by a Hindu king, Maharaja Hari Singh. There were about 567 princely states in the country who were given three choices – to join India, to join Pakistan, or to remain independent. An Instrument of Accession (IOA) was to be signed for a princely state to join whichever nation. Maharaja Hari Singh had initially indicated a preference to remain independent. However, communal violence broke out in October-November of 1947 in the kingdom, a few months after India and Pakistan became independent countries. As the violence spread, thousands of non-Muslims, mainly Hindus and Sikhs, were massacred by Pakistani tribes and soldiers in Mirpur (what is today Pakistan occupied Kashmir) and Rajouri (in Jammu). Finally, Hari Singh wrote to the Indian government for military assistance and signed an IOA to join India on October 26, 1947. The IOA allowed Indian legislation in Jammu and Kashmir over three matters – defense, communication, and foreign affairs. This was the case with all princely states which had signed IOAs. However, the princely states were invited to send representatives for the Constituent Assembly which would frame a Constitution for the whole country. The states also had the option of setting up their own constituent assemblies. While most princely states eventually agreed to follow the Indian Constitution as their own, Jammu and Kashmir asked that only those provisions of the Indian Constitution that were included in the original IOA be applicable to the state. Due to the geographical location of Jammu and Kashmir which lies between India and Pakistan, Lord Mountbatten (the then Governor General of India) had accepted Hari Singh's IOA with a remark that a plebiscite must be held after the violence was quelled for the people to determine which country they belong to. While India asserted that the IOA was final, Pakistan said it was a fraudulent accession. The plebiscite never took place – India took the dispute to the UN on January 1, 1948, and was subsequently ready for a plebiscite, but Pakistan continued with the fighting in the region. The two countries agreed to a ceasefire in 1949, with 65% of the disputed territory coming under Indian control and the rest with Pakistan. Finally, Article 370 was included in the Indian Constitution, stating that other articles of the Constitution which give powers to the Union government will be implemented in Jammu and Kashmir only with the consent of the state's Constituent Assembly. This was meant to be a temporary provision, applicable only till the state formed its own constitution. However, the state's Constituent Assembly dissolved itself on January 25, 1957, without coming to a conclusion on what it wanted to be done with Article 370. Since then, Article 370 has been India's Constitutional relationship with Jammu and Kashmir. This means that the state's residents live under their own laws, including matters related to citizenship (Article 35A of the Indian Constitution permits Jammu and Kashmir's state legislature to define "permanent residents" and also provide special rights and privileges to them), property ownership, and fundamental rights. Contrary to popular perceptions that it is Article 370 which prevents outsiders from purchasing land in Jammu and Kashmir, it is technically a treaty between the Dogras and the British in 1846 under the Treaty of Amritsar which doesn't permit this. However, it is true that this law has remained unchanged because of the existence of Article 370 which doesn't allow the Indian government to intervene.

Article 370 of the Indian Constitution provided that only Articles 1 and 370 itself would apply to J&K. The application of other Articles was to be determined by the President in consultation with the government of the state. The Constitution Order of 1950 specified the matters on which the Union Parliament would be competent to make laws for J&K, in concurrence with the Instrument of Accession - 38 Subjects from the Union List were added. Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir. The article is 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 the J&K Constituent Assembly later created the state’s constitution and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution. Till 1965, J&K had a prime minister in place of the chief minister but due to efforts of former prime minister L.B Shastri, the amendment has been done in Article 370.

Where as Article 35A allows the state legislature to define the Jammu and Kashmir's permanent residents. The article had been inserted via the Constitution (Application to J&K) Order, 1954. It was issued by the then President Rajendra Prasad under Article 370 on PM Nehru's advice. The state's Constitution, at the time of its adoption in 1956, defined a permanent resident as someone who was a state subject on May 14, 1954, or who has been a resident for 10 years, and has lawfully acquired immovable property. What this clause means is that no outsider can now own property in J&K or get a state job. The article is also known as the Permanent Residents Law. Among other things, it deprives the state's female residents of property rights if/when they marry an 'outsider'. The provision also extends to children born of any such women. Jammu & Kashmir consists of total 15 percent of schedule caste population, but no reservation facility is provided to them, they can only engaged in scavenging works and sweeping. Apart from that recommendations of Mandal commission were also not applicable in state of jammu & kashmir. Article 243 to 243 (O) of Indian Constitution i .e Panchayati Raj System was very limited in state. In fact in 1976 when India adopted word secular and integrity in preamble of Indian Constitution in 42nd amendment of Indian Constitution, assembly of Jammu & Kashmir simply refused to accept those 2 newly incorporated words i.e 'Secular' & 'Integrity' of Indian Constitution. Instead of Indian penal code, Jammu and Kashmir was administered on the basis of 'Ranbir Penal Code'.

Important provisions under the article 370 were that according to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. Indian citizens from other states cannot purchase land or property in Jammu & Kashmir. Under Article 370, the Center has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.

Under Article 370, the Indian Parliament cannot increase or reduce the borders of the state. The Jurisdiction of the Parliament of India in relation to Jammu and Kashmir is confined to the matters enumerated in the Union List, and also the concurrent list. There is no State list for the State of Jammu and Kashmir. At the same time, while in relation to the other States, the residuary power of legislation belongs to Parliament, in the case of Jammu and Kashmir, the residuary powers belong to the Legislature of the State, except certain matters to which Parliament has exclusive powers such as preventing the activities relating to cession or secession, or disrupting the sovereignty or integrity of India. The power to make laws related to preventive detention in Jammu and Kashmir belong to the Legislature of J & K and not the Indian Parliament. Thus, no preventive detention law made in India extends to Jammu & Kashmir. Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K. Meritorious students are denied scholarships and they cannot even seek redress in any court of law. Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution. It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution. The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).

The text of the article had both positive and negative implications for people of J&K because increased mistrust and violence has stalled the process of debate or policies for Article 370. Separatists often misleading the people of state especially youth that in turn is destabilizing the peace of state. These ''Temporary & Weak'' relationship with J&K may be vulnerable for India as Pakistan has a close eye on J&K. A non resident of the state cannot acquire property in J&K which prevents the local residents from getting dispossessed from their property. 

Kashmiri Pandits suffered and Union govt couldn't intervene due to non clarity of temporariness. Most of the central legislation such as RTI Act is not applicable into J&K, also central government cannot acquire land for developmental purposes such as infrastructure which bypasses people from welfare measures. Growing mistrust among Kashmiris as they feel that encroachment and willful violation of promise of autonomy is being made via AFSPA, use of pellet guns. Temporariness has resulted into conflicts between J&K legislature and the Union govt and thus Concurrence is hardly established and political fortunes are built on the miseries of the people.

Ever since, the Bharatiya Janata Party manifesto for the 2014 general election was released, the contentious issue, the party pledged to integrate the state of Jammu and Kashmir into the Union of India. When the party won the national election, BJP’s parent organisation, the Rashtriya Swayamsevak Sangh (RSS), called for the abrogation of Article 370.  Bharatiya Janata Party has been maintaining its stand that Article 370 should be scrapped. The stand of the party was clear from 1953 onwards . Then great leader Shyama Prasad Mukherjee founded Bharatiya Jana Sangh that later became the BJP. Shyama Prasad Mukherjee, who was known to be a harsh critic of the Congress party in independent India, was against Article 370 and had expressed his displeasure at special status for J&K.The political Right has been opposing Article 370 since the Jan Sangh days. Those days One could not enter Jammu and Kashmir without an official permit. In order to protest and build national awareness for J&K's complete integration, Shyama Prasad Mukherjee, along with Atal Bihari Vajpayee, travelled across the country and entered J&K on 11 May, 1953, without any permit. Mukherjee was arrested there by the J&K Police and later died in the custody on 23 June, 1953. Mukherjee's move ended the permit system for entry into J&K. In early 1950's slogan was coined by Jan Sangh leaders "Ek desh mein do Vidhan, do Pradhan aur do Nishan nahi chalenge [There cannot be two Constitutions, two Prime Ministers and two flags in one nation]". Jan Sangh party always claimed that Constitution  of Jammu and Kashmir should be declared as “arbitrary, unconstitutional and void”, claiming that it was against the supremacy of the Indian Constitution and contrary to the dictum of “One Nation, One Constitution, One National Anthem and One National Flag”. They questioned that some provisions of the Jammu and Kashmir Constitution, which deals with permanent residency and flag of the valley among other issues, for being violative of the Preamble and the Indian Constitution. BJP often raised slogans in memory of shayama pd. mukherjee while opposing article 370 and promoting nationalism that "JAHAN DIYA BALIDAAN MUKHERJEE NE, WO kASHMIR HUMARA HUMARA HAI".

After revocation of article 370, mass will be connected to mainstream and trust will be built then complete peace will be established in the state. Women of state can now live their life with full dignity. The repeal of AFSPA, reduction of troops and providing economic support to people are some steps that might help. Now after Kashmir's special status is gone, people from anywhere in India be able to buy property and permanently settle in the state. This has fueled fear in the mind of Kashmiris — they think it would lead to the state's demographic transformation from majority Muslim to majority Hindu. A separate Union Territory will be created for Jammu & Kashmir with legislature, The Ladakh region is also being given the status of a Union Terrority, without legislature. "The Ladakh division has a large area but is sparsely populated with a very difficult terrain. There has been a long-pending demand of people of Ladakh to give it a Union Territory status to enable them to realise their aspiration. Basically it's a great diplomatic move by government of India because if we analyze the strategical location of Jammu and Kashmir, we would notice that newly form union territory Jammu & Kashmir has borders with Pakistan whereas newly formed union territory Ladakh has borders with China. Now 2 separate union territories are created to deal with with two neighboring countries i.e Pakistan & China. Both newly created UT's will now have different policies and defense strategies to deal with there respective international borders. Now It is necessary to give confidence to the residents of J&K that any alteration in status quo will not take away their rights but will boost J&K’s prosperity as it will open doors for more investment, resulting in new opportunities. Standard operating procedures must require the use of lethal force only when there is an imminent threat to life and property, force should be used proportionately and not as a punitive measure. Deployment of new socio-cultural resources, and a new operational culture to wind down the militancy without alienating more locals who could either join or influence their relatives and friends to join various terrorist organisations. Lethal force should be the last resort, used only when lives are threatened. Promptly investigating allegations of abuses and prosecuting those responsible is key to resolving this mess. Externally, wide-ranging peace talks between India and Pakistan, the Indian administration and ‘azaadi’ groups is needed and internally, peace-building on the ground by multiple stakeholders involved is necessary.

There's dilemma kind of situation for some section of Kashmiris because they are claiming that their sentiments were attached with this Article. They are claiming that they lost their identity and it is very unfortunate that the government has taken a decision which is going to create more resentment among the masses rather than bringing peace, but these things are the propaganda of separatists who don't want development in valley. Although in long term decision will give benefits to both kashmir and kashmiriyat (ethno-national and social consciousness and cultural values of the Kashmiri people). Government will give full efforts to promote Kashmiriat through cultural activities, social programmer and literature have increased throughout Jammu and Kashmir and amongst expatriate Kashmiri communities.