Article 370 and the demand for greater autonomy

Author: Radha Rajan
Publication: Vijayvaani.com
Date: October 26, 2013
URL: http://www.vijayvaani.com/ArticleDisplay.aspx?aid=2992

The BJP impacted upon the political scene of this nation as a champion of Hindu political interests; because it owned up as its agenda, the demand of Hindu religious leaders for a temple in Ayodhya and also for the removal of the mosques from the temple premises in Kasi and Mathura. The other issues which the BJP took up and which distinguished it from the Congress and other national and regional parties was its call for implementing the Uniform Civil Code and for abrogating Article 370 of the Indian Constitution. The BJP was labelled a “right-wing, pro Hindutva” party and therefore “communal” and “anti-minority”. In the process, the calls for abrogating Article 370 and implementing the Uniform Civil Code were also simplistically dubbed as being anti-minority and communal.

Unfortunately for national interests, when the BJP, as the single largest party in the present coalition government came to power in Delhi, it fell into the trap of this name-calling and succumbed without a whimper to the pressure of its coalition partners and gave up its distinctive political agenda. It distanced itself from the Ayodhya temple issue, it no longer asked for the abrogation of Article 370 and maintained silence on the issue of the uniform civil code mandated by the Indian Constitution. What concerns us here is the consequence of the BJP’s ill-considered silence on Article 370.

The BJP’s silence on these issues has been disappointing because it was the BJP which first brought to the fore in political public discourse the issue of Article 370, its deleterious effects in the affairs of J&K and therefore the need to abrogate it. The problem confronting the Indian nation in J&K is far too complex and involves too many issues to allow anyone the luxury of thinking that abrogating Article 370 will somehow resolve the problem. It was nevertheless a very important political issue because a public discussion of Article 370 and its consequences for J&K and for the Indian nation would have removed the cobweb from the issues put away from sight in the country’s public life. In the course of debating the need to continue with or abrogate Article 370, the nation’s intellectual and political class and the Indian Parliament would have been compelled to acknowledge the perfunctory manner in which this article was placed before the Constituent Assembly and adopted as a part of our Constitution.

Pandit Nehru, the prime mover behind Article 370, did not himself table it before the Constituent Assembly; he was out of the country on that momentous day and so entrusted the task to Shri Gopalaswamy Ayyangar. Gopalaswamy Ayyangar, before tabling it in the Constituent Assembly, had it whetted by the Congress Working Committee where it faced stiff opposition from almost all its members. In despair, Gopalaswamy Ayyangar appeals to Sardar Patel to get the Congress Working Committee to agree to the proviso and allow it to be passed in the Constituent Assembly without opposition.

Sardar Patel points out to the angry congressmen that it would not be fair to make Gopalaswamy Ayyangar the butt of their justified anger because it was Nehru who had assured Sheikh Abdullah that such a proviso would be included in the Indian Constitution and that since Nehru was out of the country then, they should allow Article 370 to be tabled in the Constituent Assembly. He also assures them that Article 370 was only a temporary provision in the Indian Constitution and that it would erode over time and J&K would indeed be integrated wholly with the Indian republic in the same way as all the other princely states. Article 370 is thus tabled in the Constituent Assembly by Gopalaswamy Ayyangar on the 17th October, 1949 and adopted on the same day with barely a demur, a protest or reservation.

Discussing Article 370 would also have compelled our politicians and intellectuals to discuss the need for J&K to have its own constitution despite the fact that the Indian Constitution which was in the process of being drafted would have ensured equality in terms of all constitutionally guaranteed rights for all peoples and all regions. The nation would also have been compelled to look at the state constitution of J&K with its highly controversial section on fundamental rights, the Delhi Agreement of 1952, the Jammu and Kashmir Resettlement Act and its implications for the demography of the state and national security implications, the severely discriminatory attitude of successive state governments of J&K with regard to Jammu and Ladakh, the all-pervasive corruption in every area of administration and governance, and the political arrangements within the state. All these issues are either directly or indirectly connected to Article 370 and the J&K state constitution.

By giving up its stated political agenda with regard to Article 370, (the BJP may say that it has merely pushed it to the back burner until such time when it can govern the country with an absolute majority, an argument that does not hold water), the BJP has served only to reinforce the idea that Article 370 is a Muslim issue and calls for its abrogation are anti-minority and communal while demands to retain it are in the highest traditions of a pluralist, secular polity. This argument doesn’t hold water either.

(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 recognised 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;

(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.

Simply put, Article 370 lays down the ground rules for the jurisdiction of the Indian Constitution and the Indian parliament in the state of J&K. All princely states, when they signed the Instrument of Accession, surrendered Defense, Foreign Affairs and Communications to the sovereignty of the central government. As mentioned earlier in this paper, all princely states except the state of J&K chose to integrate themselves with the Indian Union by consenting to adopt the Indian Constitution.

But even as early as in 1948, Nehru had conceded to Sheikh Abdullah his demand for a separate state constitution for J&K. The country is not clear till today, why Nehru conceded this dangerous demand although Gopalaswamy Ayyangar, on the 17th of October, 1949, when this proviso is tabled and adopted in the Constituent Assembly, makes some rather very vague and unsubstantiated remarks about the extraordinary situation prevailing in J&K. One would have thought that given these ‘extraordinary circumstances’, all the more reason why the integration of the state into the Union should have been effected unambiguously and without delay. Conceding to this demand made by Sheikh Abdullah must surely rank as one of the most unforgivable of Nehru’s serial follies with regard to his dealings with Sheikh Abdullah on J&K.

It was because the state of J&K was allowed to have its own constitution that a need was felt to create a mechanism which would link the national constitution with the state constitution. Article 370, according to Sardar Patel, was supposed to be this integrating mechanism. And let us never forget the criminal negligence of our leaders who allowed Nehru to concede to this demand without

Without knowing or caring to intervene in the terms of reference of the state constituent assembly, and

Without having set the pre-condition that the Indian government would have its representatives as observers in the state constituent assembly proceedings to ensure that the state constitution was in line with the basic structure of the federal constitution. And not that alone, that the state constitution would clearly define not only the rights of the state under Article 370 but also the responsibilities of the state towards the Indian Union and by implication, towards the fundamentals of the Indian Constitution.

Without ensuring any of the above, the Indian Constituent Assembly, in 1949, long before the state constitution came into force, drafted the draconian provisions of Article 370. Article 370 states:

1. Parliament can make laws for the state of J&K even with regard to those subjects surrendered by the state to the Centre, only in consultation with the state government.

2. Parliament can make laws for the state on subjects not surrendered to the Centre only with the concurrence of the state government.

3. The Indian Constitution will not apply to the state of J&K in its entirety. The President of India, by the power granted to him under Article 370, will, through the mechanism of CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER specify which Articles of the Indian Constitution will apply to J&K as they are, which Articles will apply with modifications and alterations, and which will not apply to J&K altogether.

2. Article 370 also states that notwithstanding anything in the said Article, the President of India, may, by a public notification, abrogate Article 370 or may make any changes to it BUT, and this ‘but’ hog-ties the nation, the President can do so only if the recommendation for its abrogation or amendment comes from the state constituent assembly.

The nation’s legal and judicial luminaries have not told us, how, in the name of all that is sacred, can this be done at all when the state constituent assembly has been dissolved and no longer exists!

There has been so much heat and dust over Article 370 that neither the Constituent Assembly then, nor the Indian Parliament subsequently have ever debated it substantively. The country’s political and educated class have also shied away from discussing it for fear of being labeled anti-Muslim and communal. In Indian public life to be labeled communal is a fate worse than death. The following questions come to mind when one begins to analyse Article 370 and the need to continue with or abrogate it.

1.These are the problems in J&K today – runaway corruption, negligible industrial investment and even more negligible economic development, inequitable regional development, inequitable representation of regions and peoples both in the state legislature and in parliament, terrorism, and threats of secession.

2. The root causes for these problems are - Article 370, the J&K constitution, extremist and jehadi Islam.

3. Is Article 370 bad in itself or is it the symptom of the malaise of a sovereign state constitution? A privilege not allowed to other components in the federal structure and therefore not well defined in its relationship to the Federal Constitution?

5. What are the implications of Article 370? Which parts of the Indian Constitution apply to J&K and which don’t?

6. What are the consequences of these acts not applying to J&K? Have they contributed to or aggravated any of the problems listed above?

7. Were not puppet/ pliant state governments an inevitable consequence of Article 370 because we needed them, in the absence of a visionary leadership in the state, to use Article 370 to integrate the state progressively with the Union?

8. If we abrogate Article370, and allow the J&K constitution to remain, will we resolve the problems created by Article 370?

9. If Article 370 goes and the J&K constitution remains, what will be the instrument and framework of center-state relationship with regard to J&K? What will be the mechanism for integration?

10. Therefore, should not Article 370 and the J&K state constitution be removed together?

To understand the vicious circle into which Article 370 has cast the Indian government and to understand the enormity of the problems created by Article 370 and its parent, the J&K state constitution, it will be necessary to make a study of the laws that do not apply to J&K and also those sections of the Indian Constitution which do not apply to J&K at all or apply with severe restrictions. It may shock most readers to know, indeed I was shocked when I realised that the phrases ‘secularism and integrity’ which are an integral part of the Preamble of our Constitution, do not apply to the state of J&K. This in effect means that the state of J&K has no responsibility whatsoever to uphold and protect the integrity of the Indian nation and also that the state has no responsibility to uphold secularism, which is widely believed to be the basic structure of our Constitution and our polity.

What is even more shocking is that we still do not know if the umpteen amendments made to the Constitution with regard to J&K are a part of the Constitution itself. The Constitution (Application to J&K) Order issued by the President of India was first issued in 1950. Subsequently as a consequence of the infamous Delhi Agreement of 1952, when more and more changes were made to the Constitution with regard to J&K, the President of India issued the benchmark Order titled Constitution (Application to J&K) Order, 1954.

Subsequently more and more Orders were issued which called for Constitutional amendments. But NONE OF THESE Orders were ever sent to parliament for legitimacy. We thus have a perversion of the very fundamentals of a functioning democracy in that major Constitutional amendments were effected by the pen of the President without being authored or approved by parliament, which is ultimately the highest legislating authority in a democracy. It is certainly the highest legislating authority in India.

Worse to say, the Constitution (Application to J&K) Order, 1950 and the Constitution (Application to J&K) Order, 1954, (which is titled the ‘Restatement’) do not form a part of several publications of the Indian Constitution. Some publications print these major constitutional amendments as Appendix I and Appendix II of the Constitution. And the amendments which were effected to several important Articles in the Indian Constitution in their functioning in the state of J&K, are also not carried as a part of these Articles in the text of the Constitution!

The polity of this country and the politicians have failed the people with their continued, stubborn refusal to open their eyes to the havoc that the J&K constitution and Article 370 have caused to large sections of the people of J&K and to center-state relations.