Need of Article 370 in Present Political Setup in India: A Critical Study

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1 2015; 2(3): IJMRD 2015; 2(3): Impact factor: Received: Accepted: E-ISSN: P-ISSN: Assistant Professor Disha Law College, Affiliated to Pt. Ravi Shankar Shukla University, Raipur, Chattisgarh, India. Need of Article 370 in Present Political Setup in India: A Critical Study Abstract Since the time of inception of Article 370 in the Constitution of India under Temporary and Transitional Provisions, its continuation is a big question for those who are against the said article for various reasons. Kashmir is and was always been a very sensitive issue for India. And the recent debate started by the State Minister Jitendra Singh wherein he stated that we are asking people for their opinion whether the article 370 should remain in force or should get abrogated, has again created a great political agitation in the Country once again. Article 370 was introduced to the Constitution of India after the State of J & K was acceded to India through an Instrument of Accession on 26 th October 1947 for the purpose of giving protection to the people of Kashmir as Raja Hari Singh asked for it from the Union Government when he found himself unable to deal with various abnormal conditions of the State prevailing at the time of Independence. There were frequent cease fire from Pakistan and various religious agitations going on at that time. Due to all this J & K had been given special status under Article 370. Now after 67 years of India s Independence the most important issue is that now the conditions are not same as it was during independence because of which Kashmir was given special status under Article 370 and the same was put under the temporary provisions. Also, Article 370 is in question as the it is beneficial only to the rulers of the State and for subjects it does not seems to be of much significance. The purpose of this paper is to study various implications of Article 370 and whether it should continue or not. Keywords: Article 370, Jammu & Kashmir, Human Rights, Instrument of Accession, Corruption. 1. Introduction Right from its inception article 370 is the most ever debated provision under constitution of India. To understand why article 370 was introduced in Indian Constitution we have to back to history and look in the scenario that prevailed after Independence in 1947.After independence of India on 15th August 1947, Maharaja Hari Singh the then ruler of State of Jammu and Kashmir, did not showed any interest in becoming part of either India or Pakistan. He wanted complete independence and was interested in signing a standstill agreement with both India and Pakistan, so that till he takes the final decision the existing relationship with India and Pakistan will continue to be the same. However, due to many reasons it could not happen. Meanwhile, the people of the State realized that people in rest of the India are enjoying their freedom and rights, so they also started demanding good governance from Raja. Also there was a lot of pressure from Pakistan on Kashmir to join and become part of Pakistan. As there was no formal agreement between India and Pakistan it was more likely that Kashmir will become part of Pakistan. Maharaja Hari Singh Found himself helpless to deal with the same. Also, Poonchi Muslims revolted against Raja and acquired major parts of area which was under Raja s control. Then the inter-religious violence of 1947 contributed even more to Raja s helplessness. Even the Raja s force turned against him. In the absence of any military help he found himself in trouble and finally on the advice of his Minister Sheik Abdullah decided to accede to India Following the procedure of accession mentioned in Government of India Act 1935.He signed the instrument of accession on 26th October 1947 and the same was accepted by the then Governor General Of India, Lord Mount Batton. Correspondence: Assistant Professor Disha Law College, Affiliated to Pt. Ravi Shankar Shukla University, Raipur, Chattisgarh, India. Research Methodology Research Methodology followed is the Doctrinal Method. The Doctrinal method used here is, Case laws study, Statutes, Articles, Reports, Journals, Periodicals, Newspapers of national agencies. Introduction of Article 370 in the Indian Constitution Article 370 was drafted by Maharaja s former Diwan, Gopalswami Ayyenger. Article 370 ~ 232 ~

2 Provides special status to State of Kashmir, wherein, it was provided that Article 238 shall not apply in relation to State of Jammu and Kashmir, except for defense, communication, foreign affairs and ancillary matters the Indian parliament requires concurrence with the government of the State for the application of all other laws. At the time of its introduction it was asked by Moulana Hasrat Mohini in the constituent assembly Why this discrimination please? The drafter of the Article Gopal Swami Ayyenger argued that, since the conditions prevailing in State of Jammu and Kashmir are very different from the other States in India, as many parts are under the control of rebels and also Pakistan is in war with India over the issue of Kashmir, under such circumstances it is not the right time for complete integration of Kashmir and the will of the people Through the instrument of the [J & K] Constituent Assembly will determine the Constitution of the State as well as the sphere of Union jurisdiction over the State [1] Accordingly, on November 17, 1957, people of J & K confirmed the accession through their Constituent assembly and Article 370 was introduced In the Indian Constitution. Dr. B. R. Ambedkar on Article 370 Dr. B. R. Ambedkar was not very happy with the idea of introducing Article 370 in the Indian Constitution and giving such a status to it. He once told to Sheikh Abdulla you wish India should protect your borders, she should build roads in your area, she should supply you food grains and Kashmir should get equal status as India. But the government of India should have no rights in Kashmir. To give consent to this proposal, would be treacherous thing against the interests of India and I, as the law Minister of India, will never do it [2] Provisions Under Article 370 "Article 370 was introduced under Part XXI UNDER THE Temporary, Transitional and Special Provisions. 1. Notwithstanding anything in this Constitution anything in this Constitution: a. The provisions of article 238 shall not apply in relation to The State of Jammu and Kashmir. b. The power of Parliament to make laws for the said State shall be limited to; I. 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 II. Those matters such other matters in the said lists, as, with the concurrence of the Government of the State, The President may by order specify. Explanation- For the purpose of this article, the Government of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmir acting on the advice of the council of Ministers for the time being in office under the Maharaja s Proclamation dated the fifth day of March 1948; c) The provisions of article 1 and of this article shall apply in relation to this State; d) Such of the other provisions of this Constitution shall apply in relation to that State to such exceptions and modifications as the President may by order specify. a. Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State: b. Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of the Government. 2. If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon. 3. Notwithstanding anything in the foregoing provisions of the article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may notify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification. 4. In exercise of the powers conferred by this article the President, on the recommendation of the Constituent Assembly of State of Jammu and Kashmir, declared that, as from the 17 th day of November, 1952, the said article 370 shall be operative with the modification that for explanation in cl. (1) thereof the following Explanation is substituted namely. Explanation For the purpose of this Article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-I-Riyasat of Jammu and Kashmir, acting on the advice of Council of Ministers of the State for the time being in office. [3] Reasons Why Article 370 Be Removed Temporary and Transition Provision Article 370 was introduced under temporary and transition provision, it is but still in existence. So who will decide what was actually meant by the term temporary and transition provision. Does not fulfill the criteria of Section 5 of the instrument of accession which says The terms of this my instrument of accession shall not be varied by any amendment of the Act or the Indian Independence Act, unless such amendments are accepted by me by instrument supplement to this instrument [4]. ~ 233 ~

3 Encourages Separationist tendency As per the article published in Indian republic, Kahmiri locals do not think of them as part of India and often asks people coming from different states to Kashmir, if they have you come from India. This shows that even the concept of unity in integrity, which is one of the best attribute of India s most cherished culture, is losing its meaning. [5] It affects the economic development As per the provisions of article 370 people from outside Kashmir cannot invest in Kashmir, they cannot buy any property or carry on any business. Where rest of the India enjoys right to move freely and carry on trade in any part of India thereby developing India as a whole, Kashmir due to restriction put by Article 370 is closing doors of development for itself. Permitting corruption As we have CAG, Lokpal, CBI to investigate corruption issues in other States of India, Kashmir due to article 370 does not come under these anti corruption bodies. When corruption is on its toll in India it becomes a very important issue of debate that since the top most investigation bodies of India does not have its operation in Kashmir, is Kashmir totally a corruption free State and does not need such authorities. Restricts women rights According to the article published in F. Politics Dated Dec 2, 2013, with heading Sorry Omar, It s you who are ill-informed and not only Modi The writer has tried to make out clearly the exact status of law on rights of Women marrying outside Kashmir as far as their Permanent resident status is concerned. It mentions the Fact that in a historic case of State of J & K v. Sheela Shawney The court has struck down the discriminatory law regarding women s Permanent Status after marrying a person who does not belong to Kashmir and held that, there is no provision in existing law dealing with the status of a female Permanent Resident who marries a non- resident person. The provision of women losing their status of permanent resident after marrying outside the State therefore did not have any legal basis. But the efforts of PDP Government led by Mehbooba Mufti who tried to pass a bill named Permanent Resident (Disqualification) Bill 2004 which says that if a women marries a person from outside Kashmir will lose her permanent Resident status and the same was well supported by Omar Abdulla s party National Conference, shows that the government of Jammu and Kashmir is in favour of such discrimination. [6] Also, women in Kashmir do not enjoy same property rights as men. [7] In 21st century when whole world is talking about women empowerment and her rights, it seems ~ 234 ~ Kashmir is still in stone ages, thereby restricting women s rights. Threat to Indian security It is well known to all that Pakistan is a great threat to India due to its deep involvements in terrorism. The Article also gives Pakistan's citizens entitlement to Indian citizenship, if he marries a Kashmiri girl. [8] This is very sensitive issue and needs to be looked upon with great care and precautions. This way we are welcoming terrorists thereby making them our son in laws. How can this be justified when terrorism is not only a national issue of concern but global as well and more importantly when Kashmir is the eye of Pakistan right from the time of Independence. Chief Minister Omar Abdulla on Article 370. Chief Minister of Kashmir Shri. Omar Abdulla s statements are no less than threats. It is well known to all that law is a dynamic concept and needs to get changed with the expectation and need of the time. Then when he makes statements like, we the people of J & K would like to categorically tell BJP that it is not possible to withdraw Article 370 and any attempt by anyone will be on our dead bodies [9] As he says that article 370 forms the basis of Kashmir s accession. But a very important fact is that Article 370 is not as it was framed it has been changed so many times with different Presidential orders only for the benefit of the State. Now for the benefit of the Sate only if Article is removed than why Mr. Abdulla is making such statements. Also, as per the article published in First post, Dated 28th May 2014, where Mr. Abdulla came up with a new story that he has got an ancient stone and something is written on it which means that if Article 370 is abrogated then it is going to cause earth quake separating Kashmir from India. [10] Such statements and story does not give a sound footing to support Article 370. As this is something very unusual. Kashmir is part of India only for the services mentioned in the Article otherwise not it seems to be very mean and selfish attitude. And the relation between manmade article causing natural phenomena like earthquake is also not digestible and acceptable. Again as per the news published in Times of India especially mentioning the tweet by Mr. Abdulla Mark my words and save this tweet long after the modi Govt. is distant memory either J & K won t be part of India or Art 370 will still exist which was made by his after The State Minister Mr. Singh Said that they are open for debate over Article 370, it seems that Mr. Abdulla is not even ready for an open discussion. Whereas, if we look at the people s opinion including Kasmiri s on one of the site mapsof india. com with a heading What is your opinion Should the Govt. take a step to abolish Article 370 or not? [11]. Almost every person has given the pinion that Article 370 should be removed. And Mr. Omar Abdulla seems to give only his opinion on Article 370 what has he done to get opinion of each and every person living in J & K. where the voices of are people it s only the politicians who are shouting over Article 370. Also, the very fact that Article 370 was introduced under temporary provisions raises a question as to what is the extent of the temporary status. Also Mr. Arun Jaittely while

4 opposing article 370 said that it was promised by Mr. Nehru that it is a temporary provision and it will wither away. [12] He also said that Integration of J & K is an essential part of the ideology of the BJP. Separate status has led towards separatism and not integration. [13] Flaws of Article 370, Making State of Jammu and Kashmir More Backward. As RTI is not applicable to State of J & k, people are not only deprived of right to information but also the procedure to file the complaint. Which means a very important aspect of Democracy to have a transparent government is missing from the State. RTI has proved to be a very important tool to fight corruption, in the absence of RTI it can be assumed that politicians of J & K wants to escape from accountability thereby refusing to abrogate Article 370. Also, various welfare schemes for the weaker section of society in rest of India cannot be made applicable for the State that too when they exist there. ST and SCs form total 18% of the population and the same has been deprived of the safeguards and welfare schemes which cannot be overlooked. The main reason for acceding to India was the welfare of people only at the time of accession Raja Hari Singh in the absence of help from India or Pakistan was not able to rule of govern the State properly and people demanded their rights from him, definitely the Raja never wanted to be the part of Pakistan then only he decided to became part of India. Now what is the problem in full integration? Why there is demand of special status when this provision itself is responsible for the plight of the weaker section in the State. There is no industrial growth in the State because of Article 370, if the State becomes a fully integrated State industrial development will take place there also which is going to increase employment opportunities in the State people will get jobs in their own State and will become more power full and confident. As discussed earlier Article 370 is affecting people psychologically they do not feel themselves as part of India and if we allow this tendency to develop among them then it is very much likely to happen that they will easily get targeted by the militants to form a part of them and this is happening in the State. Various incidents of innocent people getting trapped by the militants on emotional and psychological grounds have also been noted from time to time. Also, no urban land ceiling Act is in force in the State because of which the rich land lords getting an opportunity to exploit the weaker sections as there is no change in their position. People in the State are not enjoying various beneficial laws such as marriages between Kasmiris and people from rest of India. Thereby affecting their human rights as well as marriage is a very personal issue and if on marrying a non Kashmiri a Kashmiri women ceases to ~ 235 ~ be the State subject where she was born and loses her identity of the State is quite discriminatory as it does not happen with women from rest of the State in India as they have only one citizenship that is Indian Citizenship. Even the emergency provisions Article 352 and 356 do not apply to State of Jammu and Kashmir. Under Article 356 where President can declare his rule in any state of India for Jammu and Kashmir he has to first consult with the Governor of State who himself is appointed by the President. Anti defection laws does not apply to the state. Also, even State can refuse for the allotment of land for defense purposes. The minorities like Sikhs and Hindus who migrated from West Pakistan in 1947 are not recognized as citizens of Jammu and Kashmir whereas the people who willingly left Kashmir if they come back they can claim their property rights under the J & K Resettlement Act Even the very important terminologies like secularism and socialism are absent from the Preamble of the Constitution of Jammu and Kashmir. Also, it is very depressing to come to know that the State Govt. in one of the State aid of 20 lakhs granted to one Vipul Kaul by the then government for the purpose of curing his multiple disease which was not given to him after the govt. which guaranteed him the same was changed and when the home ministry interfered with the same in order to avail that benefit to Vipul the State Govt. through a letter dated 24th July 2007 stated Under Article 370, the state is under no obligation to oblige the home ministry s instructions. which is quite evocative of the fact that how Article 370 is becoming a barrier in the well fare of the State people. Now ask Vipul s family being from the State of J & k whether they favour Article 370 or not. [14] Suggestions In the light of above instances I would like to suggest total integration of J & K with India. As it is the crown of India no matter who says what about Kashmir not being part of India and making fake stories regarding the same, Kashmir was always a part of India. Also, the situations that prevailed at the time of Independence does not exist now and we should not ignore the fact that besides Constitutional rights people do posses human rights, by the reason of birth as human beings and hence in the name of Article 370 it cannot be snatched away from them. The concept of equality is very important for any democratic country and because of Article 370 we are not able to achieve the same. If we want to fight terrorism we should definitely integrate J & K because of which Pakistan continues to be a great threat not in terms of power but in terms of its ill hopes to occupy J & K. Also article 370 is a temporary provision and not the basic feature of the Indian Constitution which cannot be amended and also it is not in the same form as it was inserted for the first time in the Constitution of India, with various presidential Orders it has been amended from time to time then, I don t think

5 there should be any issue regarding it s abrogation in the best interest of not only the Kashmiris but the whole of India. Conclusion Now from the above discussions one can clearly make out that the Article 370 is advantageous only for the rulers and not for the subjects. It is unprogressive, discriminatory and National security threat as well. And the whole idea of adopting it at the time of Independence has totally lost its meaning. Special status is enjoyed only by the politicians keeping themselves out of the purview of democratic accountability. There is an immediate need to review Article 370 in relation to the welfare of the people and for the overall development of India by the means of full integration of the State. Reference List 1. Dr. J. N. Pandey, Constitutional law of India, 776( 51 st ed. 2014, Central Law Agency) 2. O.P. Rai, The Constitution of India, (2 nd ed.2014orient Publishing Company) 3. Amitabh Mattoo, Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future, The Hindu, (May 29, :54 IST) 4. Pathikrit, The Fallacy of Article 370 and why it deserves to be abrogated, One India (may 30,2014,11:02 IST) and-why-it-deserves-to-be-abrogated html 5. InstrumentofAcessionofJammuandKashmirStateDated26 October,1947, n/documents/history/1947_2.pdf R. Jaggannathan, Sorry Omar, It s you who are illinformed and not only Modi, F. Politics,(Dec.2, 2013, 17:50 IST) 8. Prakash Nanda, Understanding the Article 370, Indian Defence Review, (Date: 26 May,2014), tanding-the-article-370/ 9. Pravin Singh, Article 370: Facts you should know, One India, (August 19,2014,17:36 IST) Riyaz Wani, Any attempt to revoke Article 370 will be over our dead bodies, Omar, Tehelka.com,(June ) 11. Removing Article 370 will cause earthquakes separating Kashmir from India: Omar, Faking News, May28,2014http:// 05/removing-article-370-will-cause-earthquakesseparating-kashmir-from-india-omar-abdullah/ 12. Ramandeep Kaur, What is your opinion- Should the Government take a step to abolish the Article 370 or not?, Maps of India. com, (May 30, 2014) Naseer Ganai, Attacked from all sides: J & K leaders lash out at Modi over Article 370 Comment, MailOnline India,(Feb 13 th 2015), article /attacked-sides-j-k-leaders-lash-modi- Article-370-comment-CM-Omar-accusing-mixing-statelaws-Centre-policies.html 14. Tarunjyoti Tewari, Article 370 of the Constitution Of India: Need Parliamentary Debate, academia.edu. CLE_370_OF_CONSTITUTION_OF_INDIA?login=ni misha.tiwari85@gmail.com& _was_taken=true ~ 236 ~