K B Jandial
It is equally important to appreciate the evolution and import of Article 370 of the Constitution. It was shrouded with controversies right from the beginning when the Chairman of the Drafting Committee of the Constitution, Dr. B R Ambedkar declined to draft it, forcing Pt. Jawaharlal Nehru to task Sir Gopalaswami Ayyangar, a member of the Drafting Committee, to negotiate it with Sheikh Abdullah who doggedly insisted for the special status to J&K. According to Balraj Madhok, joint founder of Praja Parishad in J&K & President of Jana Sangh, Dr. Ambedkar had told Sheikh Abdullah that you wanted India to protect your borders, build roads, supply food grains, and get equal status as India. But the 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.”
Clause (7) of the uniform Instrument of Accession (IOA) signed by all the Rulers of the Princely states, exempted them from “committing to any future constitution of India or fettering their discretion to enter into arrangements with the Government of India under any such future constitution.” Clause (8) of the IOA provided that it shall not affect the continuance of rulers’ sovereignty in and over the State. The intention was to grant internal autonomy to all princely States under a two-tier Federal Union as suggested by the Cabinet Mission. The Princely States also wanted their separate Constitutions that could form part of the Indian Constitution. But during deliberations, it was felt that separate constitutions would be a legacy of the Ruler’s polity which would be against the democratic set up. But Sheikh Abdullah insisted that the Parliament’s power to make laws should be restricted only to the subjects enumerated in the IOA.
After hard negotiations with Sheikh Abdullah when Pt Nehru was in the USA, Ayyangar moved the draft Article 306-A in the Constituent Assembly on October 17, 1949. He said, “At present, the State is a unit of a federal State, namely the Dominion of India. This Dominion is getting transferred into a Republic, which will be inaugurated on the 26th January, 1950”. It was explained briefly that In view of the special problem with which the Jammu and Kashmir Government is faced, special provisions for the continuance of the State with the Union on the existing basis had become necessary. The mention of “temporary provision” in the Constitution was necessitated as the Jammu and Kashmir Constituent Assembly was being constituted to decide the constitutional relationship between the State and the Union of India. Later on, the J&K Constituent Assembly ratified the Accession of J&K with India and the declaring J&K in its preamble and in section 3 as an “integral part of the Union of India”.
Every political party had exploited Article 370 for vote bank politics. In every election, divergent voices on it would reach to crescendo and unleash the war of words to arouse public emotions for its retention permanently and abrogation. Its exploitation suited all parties with an overwhelming population including leaders remaining ignorant of Article’s real import. Many had not even read it. The politics on Article 370 revolved around the demand for its abrogation on one hand and on the other, charges of its erosion and return of 1953. At least, one myth that “J&K would cease to be a part of India if Article 370 is scrapped” has proved wrong seeing the developments in post-5th August, 2019 period in Kashmir.
What actually was the special status and autonomy that Article 370 had conferred on J&K and how it could benefit the people? This special provision along with 36 other Articles figured in Part XXI of the Constitution with heading “Temporary, Transitional and Special Provisions”, 13 of these were repealed in 1956. Unlike other Rulers of Princely States, the Sheikh insisted to go by the terms of the IOA but agreed to keep it a temporary provision. This is evident from its heading of Article 370, “Temporary Provisions in respect to the State of Jammu & Kashmir” which Sher-i-Kashmir, co-author of Article, had agreed. Let’s examine the provisions of Article 370.
Article 370 Clause 1(b) (i) limited the legislative power of the Parliament over J&K State to make laws only to the subjects in the Union and Concurrent lists that corresponded to the matters specified in the Instrument of Accession. But the very next sub clause (ii) of Clause 1(b), however, extended the Parliament’s power to make laws for J&K on more subjects in both lists but “with the concurrence of the Government of the State”. Over the years, the State Govts had given concurrence on more subjects and ultimately 94 out of 97 subjects in the Union list came under the purview of the Parliament.
Similarly, under Clause 1(c), only two Articles- 1 and 370 were extended to J&K. But again the next clause 1 (d) read with the second proviso, provided that other provisions of the Constitution shall also apply to the State, subject to such “exceptions and modifications” as the President may determine with the “concurrence with the Government of the State”. It is very clear that other Articles of the Constitution shall also be extended to J&K. In this way nearly 90% constitutional provisions had been made applicable to J&K, of course with “exceptions and modifications”.
Moreover, the Indian Constitution is one of the finest and world acclaimed constitutions which meets the aspirations of the people and stood the test of time. The success of the Indian Constitution, for a country as diverse and complex as India, continues to impress and inspire experts around the world but not the political leadership of Kashmir.
The purpose of Article 370 is needed to be critically analyzed. What type of autonomy it provided and to whom? Does it give anything good to its people? First, it restricted the powers of the Parliament but the very next provision over-rode it. Again, one clause stopped applicability of provisions of the Constitution barring two Articles but in the next clause, a mechanism is provided to extend other Articles to J&K as well. The only requirement was “the concurrence of the Govt of the State”. It is obvious that the intention of the framers of Article 370 was to gradually apply the whole of the constitution to J&K but with the concurrence of the State Govt. Isn’t it to satisfy the ego of the rulers as the common man had no say in this process.
Wasn’t it a paradox that State’s ten MPs were party to the passage of all progressing laws in the Parliament but their extension to J&K was resisted? Was the Special status or autonomy meant to deprive the people of J&K of the laws beneficial for the people of the country? Not exactly as Sheikh Saheb he had agreed to the mechanism to extend legislative powers of the Parliament and other provisions of the Constitution to J&K. Otherwise these two provisions should not had been in Article 370. In any case, depriving the people of the benefit of progressive laws was not the spirit of autonomy envisaged by article 370 but it was unfortunately used to strengthen the mindset of a sizable section of Kashmiri population that “J&K is a separate nation” and thus bred separatism.
Many commentators accuse Sheikh Abdullah of desiring to get his status equivalent to the Prime Minister of India, and pretended to have superior status vis-e-vis Head of Governments of other States? How did it benefit the people of J&K? Did he bargain for this exalted status of the PM by exploiting the fact that J&K was the only Muslim State to accede to India and his position had to be different? Or did he plan it to “bully” the Indian Govt if things go bad for him even though he had forcefully defended India at UNO and even logically recommended the Constituent Assembly of J&K to rectify the accession with India?
Be whatever it was, the real issue is which provisions of the Constitution was anti-J&K or anti -Muslims? How could a law made by the Parliament be good for 130 cr Indians including 20cr Muslims but bad for over 125 lakhs people of J&K? How could extension of fundamental rights, jurisdiction of Supreme Court of India, Election Commission of India or CAG like many more provisions be bad for the people of J&K? Then why didn’t Sheikh Abdullah in his second incarnation as Head of Government ask for repeal of any Central law or withdrawal of any Constitutional provisions extended post -1953 which was allowed under Indira-Sheikh accord of 1975 even though two separate Committees went into this issue. Nothing was found to be against the interest of J&K. In fact, he had once publicly said that Article 370 was not ‘khudai kitab’ that cannot be amended. All experiencing different political vagaries in life full of struggle, Sher-i-Kashmir had preferred to die as “proud Indian” with his mortal remains wrapped in the national flag which now evokes hatred in Mehbooba Mufti even though her revered father Mufti Sayeed too had this honour.
The most critical provision under Article 370 was its Clause 3 which linked future changes in Article, commonly known as “abrogation” to the recommendation of the J&K Constituent Assembly which was supposed to, as per popular understanding, recommend changes in Article 370, which aspect it didn’t touch before passing the resolution on November17, 1956 to dissolve the Constituent Assembly on January 26, 1957. In the absence of J&K Constituent Assembly, Modi Govt invoked the provisions of Article 370 and issued Presidential order of 2019extending Article 367 with modification “in proviso to clause (3) of article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”. Since the State Assembly was dissolved at that point of time, its powers were vested in the Parliament which recommended changes in Article 370 and the President issued the Presidential order using the provisions of Article 370 again. Thus, a new provision came into being under Article 370 which says,: “370. All provisions of this Constitution, as amended from time to time, without any modification or exceptions, shall apply to the State of Jammu and Kashmir …”
Article 35A was not directly provided by Article 370 as it came as backdoor entry without the explicit approval of the Constituent Assembly or the Parliament but through Presidential order. It had come under the provision of extension of Article with “exceptions and modifications” but actually it was altogether a new Article which could have come through Article 368. It was brazenly a constitutional fraud and “ultra-virus”.
With this, the concept of “State within the State” ended and the controversial provision was buried forever. The psychological barrier that it created between Kashmir and the rest of India stands removed. Since the matter relating to the Constitutional vires of the procedure adopted by the Parliament on 5th August, 2019 is before the Supreme Court it would not be fair to comment on it. Pro-Article 370 has to wait for the SC to decide this issue rather than taking the issue to the roads.