Article 370 - An Objective Assessment
Article 370 was incorporated in the constitution of India as a temporary measure in view of the prevailing circumstances then. Pakistan had attacked Jammu & Kashmir and had illegally occupied parts of the state by aggression. The matter was then taken to the United Nations and a plebiscite was agreed upon, pursuant to the condition that Pakistan would completely withdraw from all occupied areas and would dismantle any governance mechanisms it had put in place. Any measure on part of India to extend the constitution entirely would be deemed contradictory. It was under these circumstances, some temporary procedure was required for further extension of the union constitution in J&K and that is Article 370. The Article 370 specifies that the power of the Parliament to make laws for Jammu & Kashmir shall be limited to the matters specified in the 'Instrument of Accession'. It is to be noted that the schedule of the 'instrument of accession' mentions that except for Defence, External Affairs, Communications and ancillary subjects, the Indian Parliament needs the State Government's concurrence for applying all other laws. Article 370 was only an additional legislative mechanism to facilitate this transition. But political frauds and constitutional abuse of article 370 have been committed continuously. For example, the article does neither grant J&K the right to have separate flag nor a separate constitution that becomes an impediment in the application of nation wide laws in the state.
Constitutional validity of Article 370
Those who speak in support of continuation of Article 370, usually refer to the Article 35-A, which was added to Part III of the Indian Constitution through the 'Constitution (Application to state of J&K) Order, 1954'. But it should be noted that this introduction of Article 35A, exclusively for J&K state, is an addition and not a modification. The article specifies conferring special rights and privileges for permanent residents of J&K and imposing restrictions on people of other states regarding employment, settling down in J&K, acquisition of immovable properties in state, right to scholarship and other forms of aid which the government provides.
On closer scrutiny it appears that the 'Constitution (Application to state of J&K) order of 1954', in so far has abrogated article 14 in its application to the J&K state and is also ultra-vires of the power conferred on the president. No citizen of India can be deprived of the right to vote in the election to the state assembly and cannot be deprived of the right to equality. In Keshavananda Bharati v/s state of Kerala, the Supreme court ruled inter-alia that equality of status and opportunity promised to all citizens of India in Preamble of constitution of India was part of the 'basic structure' of our constitution and that any law made will be struck down as void if it violates the constitution's 'basic structure'. So the question arises as to how can the constitution promise justice, equality and fraternity to all its citizens and then go on to add monstrous sections on permanent residents for one particular state. This denies us the equality before law which is guaranteed in Article 14 to all the citizens of India. Moreover, discrimination on basis of religion, caste, sex, place of birth, race is prohibited by Article 15 of our constitution. Such ordinances hands the state to a few individuals without taking into consideration the changes that have occurred in the state and the country during the last 65 years. It fails to consider the Pandit's holocaust, issues of the refugees, vagaries of partition, dawn of democracy in India based on equality and adult franchise and the whole history of hundreds of years.
It is very important to note that in 1950, the GOI clarified the effect of Article 370 in a white paper on Indian states as below:
a) The effect of this provision (Article 370) is that the state of J&K continues to be part of India
b) It is a unit of Indian union and union parliament will have jurisdiction to make laws for this state on matters specified in the instrument of accession or by later additions with concurrence of the government of the state.
c) An order has been issued under article 370 specifying
1) Matters in respect of which the parliament may make laws for J&K state
2) The provisions other than Article 1 (Name and territory of the Union) and Article 370 which shall apply to the state
3) Constituent assembly will be convened to go into the matters in detail
4) When the assembly will come to the decision on all the matters, it will make a recommendation to the president who will either abrogate article 370 or direct that it shall apply with such modification and exceptions as he may specify.
Despite such legislative assurances and the “Parliamentary resolution on Jammu and Kashmir” of 1994, no action has been taken to undo the earlier mistakes that have only provided more fodder for mischief using Article 370.
Abuse and Misuse of Article 370
Focusing on the abuse and conscious misuse of Article 370 tells us that 6 entries of 99 provisions of union list and 21 entries from 52 entries of concurrent list are still excluded for J&K. J&K has a separate text for oath. The tenure of the state assembly is six years. There is no mention of the words of secularism and socialism in preamble of constitution of J&K. Prevention of corruption act of 1988, Indian Penal code, Domestic Violence Act, Religious institutions (prevention of misuse) act of 1988, Forests Rights Act, Protection of Wild Animals Act and the Urban land ceiling acts do not apply to J&K. CBI has limited jurisdiction in J&K meaning that if the CBI wants to exercise powers and the jurisdiction in any FIR registered in J&K State, then it needs the consent of the J&K Govt or the High Court. The Supreme court has only appellant jurisdiction here as it is not vested with the jurisdiction of a Federal Court and can only hear cases on appeal.
Further examining if indeed Article 370 has been beneficial to the people of the state themselves, proves that they have been mislead and misinformed. As the People representation act does not apply to the state, the center has no power to enforce delimitation of the constituencies in the state. In 2002 except for J&K delimitation was done in the whole country. The Article 370 has also been misused to further interests of select regions. Even though Jammu has more population, has a larger area and more voters, Kashmir has more assembly seats. While Kashmir has 47 assembly seats, Jammu has only 37. If proper delimitation takes place Jammu should have 48-50 seats and Kashmir would have 35-36 seats. There is no record of the number of OBC's in the state. Mandal commission report has not been implemented and hence the backward classes here have no reservations in various fields. Deprived sections of the society like SC/STs did not have any reservation in J&K till 1991. Though in 1991 they were provided reservation in employment and education they still do not have any representation in politics and in the state assembly. Its surprising that the Dalit and 'Bahujan Samaj' leaders have been silent on this. The State government also refused to enact laws that would give effect to the 73rd (provisions for Panchyat Raj, 1993) and 74th (provisions for Local Administrative bodies, 1993) Amendments in J&K and hence there is no devolution of powers or democratic decentralization at grassroots. Elections in the Panchayats are being held under the archaic Jammu & Kashmir Panchayati Raj Act, 1989. RTI act of J&K and its amendments are not on par with that of the central government. The J&K Right to Information Act vests more powers in the State government than provided in the Central Act. Its worth noting that the per-capita subsidy provided to J&K is 16 times more than West Bengal and 12 times more than Bihar. Allocation of financial resources for the Kashmir valley, varies between 65-69 percent, whereas both Jammu and Ladakh divisions put together get about 31-35 percent. J&K also gets special employment packages and prime ministers packages regularly but there is no accountability as none of these information is made public or is available under J&K's RTI Act.
Those who speak for continuation of Article 370 and the separatists make no mention of the minority Sikhs and Hindus who migrated to J&K in 1947 from West Pakistan. These minorities are not considered as citizens of Jammu and Kashmir under Article 6 of the state's Constitution as they came from outside of undivided Jammu and Kashmir. Contrast this with the rights guaranteed under the Jammu and Kashmir Resettlement Act, 1982 for those who had willingly left undivided Kashmir for Pakistan during partition. Such people can still come back and claim their properties or suitable compensation in J&K as per this act. The same J&K government refuses to accommodate the refugees staying in tents for 65 years, who are legitimately the citizens of India! The logic that granting of J&K citizenship to the West-Pak refugees, whose population currently is about 2,50,000, will change the demographic character of Jammu and Kashmir is absurd. J&K has more than 10 million people according to 2001 census and making an exception for those who came in 1947 i.e. before the drafting and adoption of the Constitution of J&K cannot change the demographic character of the State. Similar fraud has been committed with the Valmiki samaj from Punjab. About 150 families from the Valmiki Samaj were brought in 1956 for town municipal and cleaning works with the assurance of granting state subject-ship. But the state subject-ship was eventually provided to only those who were in the post of 'Bhangi's/Sweeper's. Presently there are approximately 600 Valmiki families in the state but even to this day their residential colonies have not been regularized by the government of J&K. In the debate over Kashmir imbroglio, the denial of rights to the Sikh and Hindu minorities has been consistently ignored. It is considered “politically incorrect” in the context of protecting “uniqueness” of J&K. Even the interlocutors report of the Government of India failed to raise the issue of State subject-ship of these minority Sikhs and Hindus in J&K. International human rights law unequivocally prohibits citizenship based on “jus sanguine” i.e. based on the nationality of their parents instead of where they are born. A number of countries including Germany, Japan and Cambodia were censured by the UN Human Rights Committee and UN Committee on the Elimination of Racial Discrimination for practicing citizenship based on “jus sanguine”. Most countries have made suitable changes to their citizenship laws.
We regularly witness the champions of human rights going over the board when it concerns custodial deaths or illegal encounters in select cases in the country. But the same bunch of HR activists have been silent on the fact that the 'Protection of Human Rights Act, 1993' is not applicable to J&K. Even the J&K Human Rights Protection Act of 1997 was amended in 2002 to take away the powers of the State Human Rights Commission to hire its technical staff. Several cases of genuine Human rights abuses committed in J&K are away from scrutiny. In one such case, Mohan Lal, a resident of Punjab was picked up from Amritsar in 2003. He was inhumanely tortured and eventually breathed his last. When the National Human Rights Commission(NHRC) tried to intervene, the J&K State government sought immunity in the case by quoting Article 370. Though the NHRC set aside the immunity claimed by J&K government, the incident is of deep concern and is yet another example of abuse of Article 370.
Anti-defection law for anti-party activities where a member could be expelled is also diluted in J&K as the decision lies in the hands of the legislative party leader and not in the hands on the speaker. Article 361A which provides immunity and protects freedom of press to cover legislative assembly proceedings is also not extended to J&K state. While the ministers quota for various opportunities in education, employment, etc. is 15% elsewhere in the country, it is 30% in J&K. Who other than those select few ruling the state for 65 years can benefit from continuation of such laws?
Way Forward?
All the examples above prove that the Article 370 makes a complete mockery of ideas of democracy and notions of international law regarding citizenship. It reduces a substantial section of Indian people in state to the status of second rate and non-citizens of one state. Going back to the case of Vipul Kaul, any iota of hope for the Kaul family was cut short and stifled by the callous response from the then Chief Minister Ghulam Nabi Azad's secretary who said, "The government of Jammu and Kashmir is not bound to obey the orders of the Home Department of India due to Article 370 which gives special status to the state. Hence your child's medical case cannot be settled.'' The apathy of the J&K state government has put the life of a hapless 13-year-old boy at risk.
Constitution does not decide the territory but its the people of India who create the constitution. Hence it is of paramount importance that temporary provisions made to mitigate a volatile situation must not legalize discrimination as has been done in J&K by using Article 370 as a tool. Jammu and Kashmir is a part of India due to accession and not Article 370. Essential feature of Article 370 is the necessity of concurrence of the state government and not of the constituent assembly for any amendments. Article 370 gives constitutional powers to president to make amends without going to the parliament. Article 368 gives the power to the Parliament to amend the Constitution and procedures with an additional provision in Article 370 (1)(b) and Article 370 (3). But for last 60 years, the procedure has not been laid for bringing about the concurrence of the J&K state government on this. It should be noted that J&K's own constitution in Part II categorically states that “The State of Jammu and Kashmir is and shall be an integral part of the Union of India”. It is the will in Delhi that is lacking in bringing about the change.
Vipul's mother, Usha Kaul was very scared. She feared that if he isn't given medicines, his life would be in danger. So is in danger the nation and the 'basic structure' of its constitution. To have a healthy nation, each state including J&K needs to be completely a part and parcel of the national mainstream. For this to happen and to rectify the state of affairs in J&K, it needs a medicine. That medicine is abrogation of Article 370.
EDITED BY: ASHOK KOUL
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