Article 370 – Abrogate or Retain ? -II

Arguments in favour of Retention of Article 370;

The votaries of Autonomy, especially the J&K National conference, have been vocal about the retention of Article 370. Some of them even believe that gradual dilution and tampering of Article 370 was responsible for turmoil in Kashmir. In the Constituent Assembly on 17 October 1949, Hasrat Mohani  asked Gopalaswamy Ayyenger, “Why this discrimination?”, and Ayyenger in turn defended his position by saying,” This discrimination is due to the special conditions in Kashmir. This particular State is not yet ripe for the kind of integration as accorded to other states.” Socialist leaders, Jai Prakash Narayan and Madhu Limaye; Forward Block leader, Chitta Basu; Communist leader, H K Surjeet and independent human rights activist Inder Mohan all opposed  abrogation of Article 370. Prof Saifuddin Soz, a National conference leader turned Congressman, maintains that “Government should examine the question of erosion of Article 370 of the Constitution. This is the most crucial political factor in the alienation of Kashmir.”

Sheikh Abdullah in his speech to the J&K Constituent Assembly said,” The real character of a State is revealed in the Constitution. The Indian Constitution has set before the country the goal of secular democracy based upon justice, freedom and equality for all without distinction. This is the bedrock of democracy. This should meet the argument that the Muslims of Kashmir cannot have security in India where the large majority of the population is of the Hindus. Any unnatural cleavage between religious groups is the legacy of imperialism and the modern state can ill afford to encourage artificial divisions if it is to achieve progress and prosperity. The Indian Constitution has amply and finally repudiated the concept of a religious state which is a throw back of religious medievalism by guaranteeing the equality of rights of all citizens irrespective of their religion, colour, caste and class.” The aforesaid statement  can answer the pessimistic views expressed by Fatehyab Ali Khan, a leading constitutional lawyer of Pakistan in his essay ‘Last colony in the Subcontinent’ published in ‘Pakistan Horizon’ vol 43 No 2 (April 1990), issued by The Pak Instt. of Int. Affairs, Karachi. It is evident that India has given a written Constitution with assured human rights and a democratic government to its citizens. On the contrary, Pakistan neither could give a permanent constitution to its citizens nor a people’s representative government for most of the time since independence and has nurtured fundamentalism and terrorism of late.

The times of India dated 29 Apr 1990 wrote in its editorial entitled ‘Rationale behind Article 370’,    “Accession is governed by Article 1(2) and the first schedule of the Constitution. Article 370 is ‘the umbilical  chord’ that links Jammu and Kashmir to India and has been dynamically brought into play time and again through constitutional amendments extending various provisions of the Indian Constitution to J&K with the consent of State Assembly. S P Sathe writes, “Article 370 was included in the Constitution not as an afterthought but after mature consideration by the Constitution makers. It was a condition of Kashmir ‘s accession to India and if that accession is sacrosanct the condition must also be sacrosanct…….Acession to India was conditional on Kashmir retaining its distinct cultural and regional identity. Article 370 assured the State all benefits of the independent Kashmir without sacrificing the advantage of being a part of the larger Indian federation. It conferred autonomy on Kashmir……..The words ‘consultation and concurrence’ used in Article 370 are significant and they show the meticulousness observed in preserving the autonomy of J&K……..Since the Constituent Assembly no longer exists the provision has become inoperative.# Justice AS Anand observed that the Indian constitution not only envisages the convening of a Constituent Assembly for J&K but also made prior consent of the Constituent Assembly mandatory for all amendments to Article 370. Therefore despite its transitory character, Article 370 cannot be touched by the Parliament.##

Defending retention of the Article, Udayan Sharma writes;

  • The merger of J&K into India was provided for in the Indian Constitution under Article 1(2) and its first schedule. Article 370 is therefore a connecting chain through which the Central Government has, through various constitutional amendments, made legal most of the provisions of the indian Constitution in J&K.
  • Centre-State relations through Article 370 alone decide relations between J&K and the Centre and balance the regional issues is not correct nor is it exclusive. Article 371, 371(a) to 371 (1) and schedule 5-6 for the States are other examples.
  • The non-Kashmiris cannot buy land in Kashmir is not an unique provision in Kashmir alone. In Himachal Pradesh, North-East, Hilly regions of UP and tribal areas similar rules are in vogue.
  • Under article 270 (a) similar provisions were insisted by erstwhile State of Travancore.
  • Article 370 has become synonymous with the identity of Kashmiris.
  • Even Sardar Patel had strongly advocated for the article in the constituent Assembly on 12 October 1949.###

A G Noorani has been more explicit in explaining the rationale behind Article 370 which is summarised below;

  • Special status has also been conferred on Nagaland (Article 371 A), Sikkim (Article 371 F), Mizoram (Article 371 G) and Arunachal Pradesh (371 H). In respect of Nagaland and Mizoram Parliament is barred not only from altering ‘religious or social practices ‘ but also  ‘customary law and procedure’. ‘administration of civil ad criminal justice’ according to such law and ownership and transfer of land.
  • Under Article 370 only two authorities acting together can amend or abrogate it – the President and the Constituent Assembly of J&K. The latter ceased to exist after it enacted State’s Constitution on 17 November 1956.
  • Article 370 was temporary provision due to ephemeral character of the Constituent Assembly, and commitment to plebiscite. Plebiscite is rightly ruled out and the State’s constituent Assembly is gone.
  • Two consequences follow inexorably from this . All the amendments to the Constitution of India in relation to the State and of the State Constitution itself made by recourse to Article 370 after 17 November 1956 are unconstitutional. But in this lie the seeds of a reconciliation between the Union and the people of the State alienated from it – restoration of the State’s autonomy to what it was on 17 November , 1956.
  • Article 370 in brief made five special provisions for Kashmir;
  1. It exempted the State from the provisions of the Constitution providing for the governance of the States. It was allowed to have its own constitution as a federating unit.
  2. Parliament’s legislative power over the State restricted to three subjects only. The President could extend to it other provisions of the Constitution to provide a constitutional frame-work if they related to the matters specified in the Instrument of Accession. For all this only consultation with State government was required.
  3. If other constitutional provisions or the other Union powers are to be extended to Kashmir the prior ‘concurrence’ of the State government was required.
  4. The concurrence even did not suffice, it had to be ratified by the State’s Constituent Assembly.
  5. Article 370 (3) empowers the President to make an order abrogating or amending it with the recommendation of the Constituent Assembly of J&K which has ceased to exist. The Article can neither be abrogated nor amended by recourse to the amending provision of the Article 368.
  • After a detailed examination Mr B B Verghese summed up in The Hindustan Times in August 1953 that “As for now 88 of the 99 entries in the Union list apply to J&K….Of the 47 entries in the concurrent list, 23 do not apply to J&K and another 6 apply with modifications.
  • Under 1975 accord , State could review post-1953 Central laws.
  • The Supreme court in the case of Sampat Prakash overlooked the fact that on its interpretation Article 370 can be abused by collusive State and Central Government’s to override the State’s Constitution e.g Extension of Article 249 (17 Aug 1986)
  • Sheikh Abdullah had warned in 1952 that “any suggestion of altering arbitrarily this basis of our relationship with India would not only constitute a breach of the spirit and letter of the Constitution but it may invite serious consequences for harmonious association of our state with India.” ####

Dr Manzoor Fazili has , however, pointed out in his book ‘Jammu and Kashmir Constitution’ (Al-Rafiq Pub. Anantnag 1984) that “The Sheikh whatever his stand was up to 1975 after his arrest  in  1953, on regaining power in 1975 took the oath of secrecy under the same Constitution of India………Thus Article 370, to a Kashmiri, has become a symbol, in the common medieval sense, a symbol comparable to a ‘tree of Death and Life’. The more the attempt to erode, the more reaction it would produce . The underlying spirit behind article 370, rests with extent of the pulls on it from the people of Jammu and Ladakh. The pulls will determine whether the relationship between the Centre and the State are reduced to zero or to Infinity.”

 

#SP Sathe, ‘Article 370, Constitutional Obligations and Compulsions’, Eco. & Pol Wkly,28 Apr 1990

##Vidya Subramanyam, ‘Abrogate and be Damned’; The Independent, 21 Apr 1990

###Udayan Sharma , ‘Article 370 and J&K’; The National Herald, 05 Jan 1992

####A G Noorani, ‘Article 370’, Indian Express , 11 Apr 1991.

 

 

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