By Satya Vrat Yadav, UPES
Editors Note: The author attempts a critical and historical analysis of Article 370. J&K is the most burning issue which needs to be solved but is pending since 60 years of independence due to some mistakes committed by the politician between time span of 1947-1953.
In the election campaign for the General elections, political parties make promises. Well, these political promises are usually remarked to be false by the fraternity of commoners, but this time in the campaign for general elections 2014, one of the political parties made a call to amend Article 370 of Indian Constitution. This promise made by a political party became the ridiculed political promise done in political sodality.
Surprisingly to ridiculers of that promise; on the day of the public verdict, party with the same agenda to pass the amendment was declared the single largest party of World’s largest democracy. This verdict by the public was an order to the new heads of different departments to take appropriate steps and improve the living condition of people of Jammu and Kashmir. If for that melioration, to be done even amendment in the constitution will be appreciated by the public.
Now to describe the future prospects of Jammu and Kashmir and Article 370, it is very important to study and take into account what Article370 actually declares?
It is a very common phrase used in the prudent world that “to determine the future prospects, study of history is must”. Further in this particular work by the scholar, history and possible outcomes will be discussed along with the provision of law also with illustration.
Since Jammu and Kashmir presents a variation of the federal structure in which the Indian States were welded, the dissection of the protected position of Jammu and Kashmir in the Indian federal structure, as a sub-national personality, uncovers much and can serve as a marker for any revaluation of the federal relations the Constitution of India epitomizes. Sometimes special sub-nation identity given to Jammu and Kashmir raises some genuine questions which had no answers.
Differentiation among Princely State of Jammu- Kashmir and other States:
The exception to the principle to absolutely unite and one India was the special status that the princely state of Jammu and Kashmir was allotted. The Jammu and Kashmir State was perceived as a self-governing character, based upon the Muslim majority character of its populace. The State was not brought inside the methodology of the reconciliation of the Indian regal States, which took after their increase to the Dominion of India. The delegates of the Jammu and Kashmir State, took an interest in the considerations of the Constituent Assembly of India, however, the National Conference which shaped the Interim Government in the State, supported the prohibition of the State from the sacred association of India.
Consequently, special constitutional provisions were embodied in Article 370 of the Constitution of India for the State. The state reserved the right to convene a separate Constituent Assembly was convened in 1951. In November 1956, it completed the task of framing the Constitution of the State. The Constitution of the state of Jammu and Kashmir was brought in to force on 26 January 1957. Due to amendment, Article 238[i] was repealed from the constitution of India by the seventh amendment to the constitution.
The Jammu and Kashmir state has ever been governed by two sets of constitutional provisions, the first envisaged by the constitution of India state. The position of the state, in the Indian constitutional organization, has been determined by the constitution of India and the instruments of the State Government have been devised by the constitution of the state.
Provision of Article 370:
The provision makes the scope of Article 370, quite clear in the very first sentence of it, which declares this provision as a temporary provision relating the state of Jammu and Kashmir, further it declares that Article 238 will not be applicable to the state of Jammu and Kashmir. This Article 238 was later repealed by the seventh amendment in the constitution of India.
Adding cherry to the cakes, this article in its next part, limits power of parliament to makes laws in relation to said state and declares that parliament can make laws on the matters which are common to the list of union list and concurrent list only after the consultation with the state government, and these matter are declared by the head of the country, to be similar to the matters discussed in instruments of accession; also matters which are common in above said lists with concurrence to state government list.
Article 370 is encoded as under:
Temporary provisions with respect to the State of Jammu and Kashmir—
(1) Notwithstanding anything in this Constitution,—
- The provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
- The power of Parliament to make laws for the said State shall be limited to—
- 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
- Such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
This article of the constitution clearly reflects how much, differentiation is made between J&K and other states in the union of India. It is quite clear from the provision itself that no laws for the rest of the country are applicable on J&K unless laws are themselves accepted by State.
History which led to article 370:
After partition, on October 26, 1947 forces of Pakistan and the tribal attacked the state of Jammu and Kashmir, where Raja Hari Singh of Kashmir asked for help from India. India asked the king of J&K to sign instrument of accession which was similar to one those signed with other states. However, Indian Government took stand that it was the commoners of the State acting through the Constituent Assembly to first plump for the accession to India and then determine the Constitution of the State and the jurisdiction of the Union of India. This is what, for which Article 370[ii]was framed. It was a temporary provision inserted till the accession was ratified by the Constituent Assembly of J&K. Its nature was transitional actually.
Some other stories are also very popular; with respect to the formation of Article 370 0f the Constitution. This story features Pt. Nehru and Sheikh Abdulla; and also shows how blindly Pt. Nehru believed Mr. Sheikh Abdulla, and how Sheikh Abdulla used the weakness of Pt. Nehru against him.
What actually word temporary means:
Words which are used in the constitution of India under article 370 clearly states that the provision is a temporary, traditional and special provision in nature. Afterward ,it is nowhere defined that what this word temporary actually meant. What will be time span for which this provision is inserted in the constitution of India? It only talks about the special status of J&K and creates misconception with regard to term temporary.
What is actual time span of word temporary, does it meant 1 year or one decade, scholars have been now working for quite some time to decode this code made by encoders of constitution.
What scholar thinks regarding word temporary used in Article 370 is, that it was incarnated in the constitution with regard to conditions in J&K and its aim was to repeal the provision after the condition in the state becomes better for living and their remains no threat to the life of common people Living in the particular Part of India, when Pakistan stops making hell out of the life of people living in there, When people of Kashmir themselves promote the constitution of India in there.
Now, Reason behind the separate article in favor of Jammu and Kashmir was the annexure in Instrument of accession, signed between dominion of India and King of J & K. This clause clearly said that parliament of Indi will only be making policies and laws for J&K with regard to the defense, external affairs, and communication. And clause 7 of Instrument itself prevented the state to follow any future laws of India or any future constitution of India. This instrument was signed on October 26, 1947; whereas the constitution of India came in to force on January 26, 1950. Legally under clause 7 of Instrument of accession, J&K was not bound to adopt the constitution of India and hence constitution of J&K was enforced in 1957.
Consequences of Article 370:
Article 370 had dual effects; first one was that, several laws of Indian parliament have not been applicable in the state although constitution of state proclaims under section 3[iii]of it, that the ‘state is and shall be an integral part of the Union of India’—this declaration is beyond the power of state legislature to amend it.
This section is also one on which India, uses often during peace-dialogues with Pakistan, as well as during dialogues with rest of the world regarding J&K. Due to the prevalence of article 370, in the constitution of India most of the prevalent and very important laws in India are not applicable in J&K. Some of these laws are Indian Penal Code, 1860 which is replaced by Ranjit penal code. It is to be noticed here that only difference between Indian penal code and Ranjit penal code is that of name. This kind of discrimination between Kashmir and other states of India is absurd and illogical.
In addition to this pampered treatment with J&K, still, Mr. Abdullah often demands retaining past position of Kashmir, which was prevalent in the state before 1953. This demand of Abdullah family forms the time of Sheik Abdullah. It will be better if the Indian Government does not take account of his demands.
A possible amendment to article:
The very first sentence of Article 368(2) says, ‘A ratification of the Constitution may be launched just by the introduction of a bill for the reason in either House of Parliament…’ But the President’s Constitutional (Application to Jammu & Kashmir) Amendment Order, 1954, added the accompanying to Article 368(2) Gave further that no such alteration should have impact in connection to the State of Jammu & Kashmir unless connected by request of the President understatement (1) of Article 370. So, practically amendment in provision under discussion is not possible without the order by president with respect to article 368(2).
If in near future any amendment to the constitution regarding provision take place that will in a way violate the clauses of Instrument of accession, but in case if the ratification happens, then that should be regarding finishing up of sub-nation identity of J&K, application of Indian laws completely as they are in J&K with off-course allowed amendment by state legislature, finishing up double- citizenship status of the commoners of J&K. Allowing the people in other parts of India to buy property in Jammu and Kashmir.
For applying all these amendments in the state, complete amendment of Constitution of J&K will be required. Well the constitution of J&K itself limits the industrial development of the state because people from other places cannot come and buy property in the state. This applies to the industrialist also who wants to invest in the industries of Jammu and Kashmir but due to bar, laid down by the Kashmiri constitution doing that is not possible.
Position of India and Pakistan with respect to Kashmir:
The Scholar would like to move forward with the discussion and would use a simple example to put forward his point. Let’s think there are three characters in the story who are A, B and C. Here in this story, suppose A is father, B is son and D is the third person. A (Father) and B (son) are forming Joint Family, and property by ancestors has been divided among them as per their virtue and rights. After this division B starts living separately from father showing all the signs of division in the joint family. Now, here property of C is acquired by A (the father) after the partition. Again B comes to the spotlight forcefully trying to get the later acquired property from father to which he is not eligible under rules of Mitakshara joint family. The rule clearly states that that partition of property inherited from a grandfather or any other remote ancestor may be instituted by sons even against their father’s wish[iv].
Nature of article 370:
These days article 370 is used to justify the separation of Kashmir by the separatists, it has been repeatedly interpreted in a wrong manner further making the constitutional and political status of Kashmir in doubt. Article 370, calls itself temporary making the special status of Kashmir also temporary. Nonetheless, on mulling over Article 370 precisely, it gets to be clear that there are no restrictions as far as amending it. In this way, in fact, talking, there is no obstacle in repealing the Act if the Parliament senses it, to be done.
Actually, the ambiguous nature of the article is used against the spirit of the constitution and separatist take advantage of it by turning Kashmir into anti-constitutional state. These separatists take advantage of the current position to spread feeling of hatred towards Indian Dominion power. This poison spread by separatists is showing its true colors since, the time Kashmir become part of India by signing instrument of accession.
In the form of conclusion, scholar will be presenting his personal views, regarding his study of article 370 of the Indian constitution. Constitution of Kashmir itself declares that J&K is an integral part of India, and will always remain to be in same way and also on being accepting the policies of India for defense, finance, and foreign policies, the Indian laws should also be made applicable in J&K in same way as they are applicable in other states of India. Total inclusion of J&K in India is the only way by which the differences between India and Pakistan can be solved. Kashmir should be included in India because King of J&K signed the instrument of accession with India and not with Pakistan. Pakistan is just claiming it on basis of majority of Muslim there in Kashmir which cannot be justified in any way.
J&K is the most burning issue which needs to be solved but is pending for 60 years of independence due to some mistakes committed by the politician between time span of 1947-1953. This is the right time to take proper decisions regarding the status of Jammu and Kashmir, if proper steps are not taken now then it is possible that issue will fire up more in coming future and will prevent Kashmir from development even the whole world will be developed.
Formatted on 3rd March 2019.
[i]. Rep. by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch.
[ii]Constitution of India.
[iii] Constitution of Jammu and Kashmir
[iv] Explained as Houses and landed property inherited from an ancestor shall be shared equally by the father and sons; but the sons cannot claim a share of their father’s own property without the consent of the father.