Home Article 370- Back to the Frontline

Article 370- Back to the Frontline

Center-State Relations

The relationship between the Govt of India and state of J&K has been like a roller coaster ride. However, the downs will outnumber the ups, hands down. The history of this blow hot - blow cold marriage of convenience has been amply highlighted in three web articles on the history of J&K[1]. Article 370 has come back to the frontline due to the Supreme Court’s observation on 03 April 2018. Amongst other significant issues, Article 370 holds it place of pride in the minds of the experts on J&K and it is further elaborated in the succeeding paragraphs.

 

Article 370- the Raison de’ etre

The Instrument of Accession of Jammu and Kashmir to India was signed by the Maharaja Hari Singh in October, 1947 and a special status was given to the State through the Article 370 in October, 1949. The wordings of Article 370 and its title "Temporary provisions with respect to the State of Jammu and Kashmir" are both significant as they imply that it was designed as a temporary or provisional arrangement. Thus, among the main aims of granting a special status were-

 

  • To ensure the Kashmiris that their distinct identity would be preserved.

 

  • To placate the Muslims of the Valley who were feeling uncertain over their future.

 

In an Opinion piece carried in the national newspaper, The Hindu, the reason why  Article 370 was indeed inserted in the Constitution, has been elaborated upon.The article argues that Kashmir was then not ripe for integration, unlike other princely states ; moreover, the article stresses, " India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies." [2]

 

370 Governs Centre State Relations

The Article essentially governs centre - state relations pertaining to J&K. Centre - State relations and issues of regional balance within States are similarly dealt with in the case of Gujarat, Maharashtra, Andhra Pradesh, Assam, Sikkim, Manipur, Nagaland, Tripura, Meghalaya, Arunachal etc in Article 371- A to I and schedules 5 and 6. Kashmir, in this sense, is not uniquely treated. When objections were raised in the Constituent Assembly regarding the inclusion of Article an assurance was given by the framers of the Constitution that it would get eroded gradually. This happened to some extent during the premiership of Bakshi Ghulam Mohmmad, but it was not taken to its logical conclusion. So, stating the Article as the root cause of all the trouble over J&K and in the fear of demand for a plebiscite, some political parties have been demanding abrogation of the Article. They also believe that this Article has encouraged the secessionist elements in other part of the country. In December 1964, Articles 356 and 357 were extended to the state.

 

What does it Entail?

Article 370 specifies that, except for Defence, Foreign Affairs, Finance and Communications, (matters specified in the instrument of accession) the Indian Parliament needs the State Government's concurrence for applying all other laws. Thus, the state's residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. Jammu and Kashmir is the only state in India which enjoys special autonomy under Article 370 of the Constitution of India, according to which no law enacted by the Parliament of India, except for those in the field of defence, communication and foreign policy, will be extendable in Jammu and Kashmir unless it is ratified by the state legislature of Jammu and Kashmir. Subsequently, jurisdiction of the Supreme Court of India over Jammu and Kashmir has been extended.

Jammu and Kashmir is the only Indian state that has its own official flag and constitution, and Indians from other states cannot purchase land or property in the state. Designed by the then ruling National Conference, the flag of Jammu and Kashmir features a plough on a red background, symbolising labour; it replaced the Maharaja's state flag. The three stripes represent the three distinct administrative divisions of the state, namely Jammu, Valley of Kashmir, and Ladakh. Since 1990, the Armed Forces Act, which gives special powers to the Indian security forces, has been enforced in Jammu and Kashmir. Now the question arises, how can we amend Article 370 when the Constituent Assembly of the state no longer exists ? Or whether it can be amended at all? Some jurists say it can be amended by an amendment Act under Article 368 of the Constitution and the amendment extended under Article 370 (1). But it is still a moot question.

 

Arguments

Equally valid arguments are forwarded by those in favour of and those against its abrogation.

 

  • Those in favour argue that it has created certain psychological barriers and the root cause of all the problems in J&K. Article 370 encourages secessionist activities within J&K and other parts of the country. They say, at the time of enactment, it was a temporary arrangement which was supposed to erode gradually. They also argue that it acts as a constant reminder to the Muslims of J&K that they have still to merge with the country.

 

  • Those against its abrogation argue that Abrogation will have serious consequences. It will encourage secessionists to demand plebiscite which will lead to internationalization of the issue of J&K. They further argue that the contention of Article giving rise to secessionist activities is baseless as states like Assam and Punjab, which don’t have any special status have experienced such problems. It would not only constitute a violation of the solemn undertaking given by India through the instrument of accession, but, would also give unnecessary misgivings in the minds of the people of J&K, making the issue more sensitive.

 

State Autonomy Committe

In March 2000, around the time of US President Clinton's visit to India, unidentified gunmen gun down 36 Sikhs at Chittisinghpora. In June 2000, the State Autonomy Committee (SAC) Report is discussed and an autonomy resolution is adopted in the J&K Assembly. The SAC Report recommends restoration of Article 370 to pre -1953 status with Indian jurisdiction limited to defence, foreign affairs and communications. However, the Indian Cabinet rejected the autonomy recommendation in July 2000.

 

 

Working Groups

It is notable to mention here that Prime Minister Dr Manmohan Singh, during his first tenure, had set up five working groups on confidence building in Jammu and Kashmir on May 25, 2006, at the end of the second round table conference in Srinagar. Headed by Justice (Retd) Sagheer Ahmed, the Working Group on Centre - State relations held its first meeting at New Delhi on 12 Dec 2006 (NC abstained from this meet), second at Jammu on 03 Feb 2007 and third at New Delhi on 29 Mar 2007. The group last met for two days on 02 Sep 2007 again at New Delhi but failed to come up with recommendations as members were seen to be pulling in too many directions. The other four working groups on Strengthening Relations Across LoC (Line of Control dividing Kashmir between India and Pakistan), Confidence Building Measures Across Segments of Society in the state, Economic Development of Jammu and Kashmir and Ensuring Good Governance - submitted their recommendations to the PM in the third round table conference on 25 Apr 2007.

 

The 196 page report alongwith 400 pages of annexures and a small booklet of recommendations though addressed to Prime Minister Manmohan Singh was strangely presented to Chief Minister of Jammu and Kashmir Omar Abdullah on 23 Dec 2009 in Jammu by the Chairman of the Working Group Justice (Retd) Sagheer Ahmed through its Secretary Ajit Kumar. This inexplicable act of the Working Group set off a political row for and against autonomy. National Conference (NC) talking advantage of the controversy went on to strengthen the fictional impression that its edited proposal of “ Greater Autonomy” had been accepted and recommended by the Working Group (WG) as only possible way of restructuring centre-state relationships. However, contents of report and annexure appended with it tell a contrasting story to what was made public about autonomy plan through an official handout released by Jammu and Kashmir government. The relevant recommendation of working group on the other hand says that autonomy plan of National Conference (NC), PDP’s self-rule be discussed alongwith other proposals opposing both these prepositions. Few of the major issues highlighted in the report are as under-

 

  • Referring to recommendations of Gajendra Gadkar Commission, the group has maintained that it is for the people of Jammu and Kashmir to decide how long to continue Article 370 in its present form and when to make it permanent or abrogate it forever.

 

  • The report has asked the central government to address the issue of scrapping Article 356 and appraise the Jammu and Kashmir government about reasons for non - abrogation of this article which in any case has subjective value.

 

  • Another striking feature of Justice (Rtd) Sagheer Ahmed WG report is that it has found nothing improper or objectionable in the process of application of central laws to Jammu and Kashmir from 1954 to till date which in political parlance is dubbed as ‘ slaughter of autonomy ’. Referring to NC’s position on “ Erosion of Autonomy ”, Justice Sagheer’s panel upholds the view that the central provisions have been applied under prescribed procedure and with duly elected state governments in position from time to time. In procedural terms, it appears that these measures had the sanction and approval of state government of corresponding period which in turn represented the will of people.

 

  • The report had rejected the BJP’s demand of ‘delimitation of constituencies’. It also emphasized that “Integrity of Jammu and Kashmir has to be maintained at all cost” and did not support demand for giving UT status to Ladakh.

 

The Bone of Contention

Demand for “Greater Autonomy or Self Rule” has been the major bone of contention between the Center and State govts. Various attempts were made by the State to attain the same from the Shiekh Abdullah’s days. He had also instituted two separate commissions to recommend viable solutions to the issue. In any case, the cabinet never came to see much less consider any of these reports by the time Sheikh expired in September 1982. Justice Sagheer writes “It is not clear what happened to these two reports ; whether they were placed before the Cabinet or the House and discussed ; and, if so, what decision was taken and which Report was accepted arid which rejected. The last nail in the coffin on the issue of erosion of autonomy was the unanimous resolution of state legislature, with former Chief Minister Farooq Abdullah led NC having 2/3 rd majority in both the houses of state legislature, sponsoring the resolution for the restoration of autonomy to the state of Jammu and Kashmir. The BJP led National Democratic Alliance (NDA) which was ruling at the Centre and of which National Conference was a component summarily rejected the resolution.

 

Political parties in J&K have been utilizing article 370 in swaying public opinion to their advantage from time to time. So much so thathuge anti-India protests were even held against the transfer of land to SASB (shrine board), which was an outside state organization, as it was perceived as a direct violation of article 370 of the Indian constitution.

 

Spl Status & Alienation

People in the valley feel that Article 370 of Indian constitution as applicable to J&K should continue while groups like Kashmiri Pandits feel that J&K should become a federal state in the Union of India like all other states.

 

Observation of the Hon’ble Supreme Court

The Supreme Court said on 03 April 2018 that Article 370 of the Constitution which gives special status to Jammu and Kashmir is not a temporary provision. The apex court said that in its earlier verdict of 2017 in the SARFESI case, it has been already held that Article 370 was "not a temporary provision". [3]. The top court was hearing an appeal filed by petitioner Kumari Vijayalakshmi Jha, against the Delhi High Court's April 11, 2017 order.

 

Out of the Box

Special situations often require out of the box thinking. Why don’t we exploit the lease clause by creating three SEZ type areas in South, Central & North Kashmir Valley with large land on lease. Create them as Srinagar Cantt type economic development areas, co-located with Army operational bases, having KV schools, police & CRPF trg institutes, Kashmiri Pandits rehab camps etc and ensure these SEZ are comprehensive & self-sustaining for private companies with adequate security. Make these as hubs for PPP model with industries of software, handloom, handicraft, agriculture etc within this all-encompassing area. It could turn out to be a win-win situation for all.

 

 

 

 

 

 

References

[1]http://www.claws.in/1885/the-journey-of-kashmir-from-independence-till-pre-terrorism-as-chonker.html

[2]http://www.thehindu.com/opinion/lead/Understanding-Article-370/article11640894.ece

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AS Chonker
Senior Fellow
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