Abrogation of Article 370
By Dr S. Saraswathi
(Former Director, ICSSR, New Delhi)
The Union government has shown its exemplary courage, conviction, and ability for taking vital decisions by issuing the presidential order for revoking Article 370 of the Indian Constitution under Part XXI entitled “Temporary and Transitional Provisions” – an order claimed to be a step towards firm integration of Jammu and Kashmir with the rest of the country. Though it is no secret agenda of the BJP but a promise openly made in its election manifestoes, fulfillment of the promise so soon after its re-election has taken many by surprise and even shock.
Along with this, Article 35A of the Indian Constitution which conferred on the State of J&K the right of defining permanent residents of the State and granting special rights and privileges to them and imposing restrictions on other persons with regard to employment under the State, acquisition of immovable property and settlement in the State, scholarships and other forms of State aid has also been deleted.
The National Conference – the party that has high stakes in J&K government – has taken the matter to the Supreme Court. It is a legal-political question.
J&K’s accession to India was effected by the Instrument of Accession signed on 26th October 1947 by the Maharaja of Kashmir. Under this, the authority of the Dominion of India in all functions vested with them by the Government of India Act 1935 as in force on 15th August 1947 was extended to the State of J&K.
Following this, Article 370 of the Constitution, which came into force on 17th November 1952 totally exempted J&K State from the provisions of the Indian Constitution governing other States and accorded it a different status. The legislative power of the Indian Parliament was restricted to matters in the Union and Concurrent lists which were in conformity with matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India. It had only three subjects – defence, foreign affairs, and communications. For extending legislative and other powers of the Union government, concurrence of the J&K State was required. Initially, J&K accepted only Article 1 and 370 of the Indian Constitution.
Series of Presidential Orders have been issued that have contributed to closer integration of Kashmir with India. Over 90 subjects out of the total 97 in the Union list in the Seventh Schedule of the Constitution are now applicable in J&K. Several Acts passed by Parliament have been adopted but some crucial laws and policies are not extended to this State.
Among these, mention must be made of the RTI and RTE and reservation for SC, ST, OBC, and EWC in the State. Several Central government schemes are also not extended to J&K. The presence of Article 370 had been more a stumbling block in the way of progressive legislations and policies than an enabling provision to protect the special needs and interests of the State.
What was meant as temporary and transitory provisions necessary in unstable political situation after Partition and integration of Princely States with India became an arrangement over which vested interests flourished blocking welfare and development of the State and its full integration with the rest of the country legally and administratively. Abrogation of Article 370 became necessary from this angle to bring the State on par with other States of India.
Sardar Patel once remarked that he was not satisfied with the efficacy of this Article adding that the future would depend on the strength of the Indian nation and the nation without confidence in its strength did not deserve to live as a nation.
The course of proceedings in the Constituent Assembly in writing Article 370 has immense historical significance, but cannot help us in living our lives or building our nation today. The circumstances that necessitated insertion of this Article in the Indian Constitution are no longer present in the same form and degree. These are useful in understanding the then situation and the probable effects of a special Constitutional position. We are living in a different world and facing different situations. Reference to the debates leading to the insertion of this Article cannot also be the sole basis of our decision today in dealing with the resulting situation under Article 370.
Hence, the controversy over the authorship and supporters and opponents of Article 370 ever since its formulation is fruitless except for deepening the divide between political parties today. Similarly, the different views expressed by political leaders of different parties at various situations are also context restricted and need not be quoted to deal with the present.
Thus, former Prime Minister P.V. Narasimha Rao’s remark about J&K autonomy as “something short of azadi and within the framework of Indian Constitution”, that “sky is the limit of autonomy”, or Vajpayee’s readiness at one stage for discussion on autonomy, or the promises of some parties for “autonomy” in election manifestoes need not be brought in to handle current situation.
The Constitution of the State of J&K made by the Constituent Assembly of the State in 1956 recognises the State’s position as “an integral part of India” – a provision that cannot be amended. However, it allowed a separate flag and internal autonomy to J&K – factors good enough to boost special emotional attachment of Kashmiris to their State. Jammu and Kashmir is added in Schedule 1 of the Indian Constitution which lists the States comprised in the Indian union.
Under this Constitution, the executive and legislative powers of the Indian Union listed in the Indian Constitution did not extend to J&K as for other States. Emergency could be declared only in times of war or external aggression, and financial emergency was ruled out.
Significantly, the entire parts of Fundamental Rights, Fundamental Duties, and Directive Principles of State Policy in the Indian Constitution were not applicable in the State of J&K. Reservation Policy for SC, ST, OBC, and EWC was not in force in the State.
Obviously, such special provisions cannot remain a permanent or even semi-permanent feature in one part within a nation without attempts to bring the State in the mainstream. No serious attempts have been made so far for de facto integration while separateness is emphasised in building vote banks. The stumbling block is obviously political calculations and not legal impediments or social relations.
The Legislative Assembly of J&K adopted the famous Autonomy Resolution on 26th June 2000 to remove the temporary character of Article 370 and to make it a permanent feature. It restricted the power of the Government of India to defence, foreign affairs, and communication, and disallowed resort to the Supreme Court from Kashmir on any legal matter. The post of Chief Minister of the State was renamed as Prime Minister.
This resolution of the National Conference government in Kashmir was unanimously rejected by the Cabinet of the NDA Government that was then in power.
Article 370 is after all a temporary provision and has to be removed at some point as a constitutional obligation as in all other time-bound decisions. Its revocation must generate feelings of unity and integration in the country and not divisions.—INFA