The Constitution under Part XXI, relating to Temporary, Transitional and Special Provisions entails Article 370 which grants a special autonomous position to the state of Jammu and Kashmir which forms part of the ‘territory of India’ as defined in Article 1 of the Constitution, being the fifteenth State included in the First Schedule of the Constitution, as it stands amended.
Article 370 has been in contention ever since it has been included in the Constitution, which is to say since the inception of the Constitution itself. The question involves a huge amount of sentiment and sensitivity among the people of India and the state of Jammu and Kashmir and hence must be handled very delicately. Much has been said about the significance of this Article in light of Centre-State relations and its political consequence. This evaluation, however, misses the point. It must be seen with respect to the Kashmiri people and the impact on their lives. In this Article, the subject of Article 370 shall be looked upon through two very basic perspectives: a. Historical; and b. Cultural, to come to a conclusion as to whether we still need the Article or if it should be abrogated.
Historical – The Instrument of Accession
To state briefly, Article 370 was inserted into the Constitution of India as a condition to the state of Jammu and Kashmir signing the Instrument of Accession and joining the country of India. More than five hundred princely states within the geographical limits of India, barring three States of Hyderabad, Kashmir and Junagadh, acceded to the Indian Dominion by 15 August, 1947. In the case of Jammu and Kashmir the population was overwhelmingly Muslim but the Ruler thereof was Hindu, which made this matter of accession a contentious issue along with the Ruler trying to assert his independence.
The Maharaja requested the Government of India for help when tribesmen, assisted by Pakistani officers and soldiers invaded Kashmir, to accept accession to India. Lord Mountbatten accepted the accession but said the State’s accession should be settled by a reference to the people once law and order was reinstated in the Valley. This offer of a plebiscite or referendum to determine the future of the status of Kashmir has essentially been the source of dispute between India and Pakistan leading to innumerable conflicts and wars.
Pakistan claims that this accession that India affected is fraudulent and that the government has not followed through the promise of plebiscite. They claim that the people of the State do not wish to be part of India and demand their separate status. However, it must be noted that Jammu and Kashmir recorded a voter turnout of 65 per cent in the last State Legislative Assembly. If nothing else, this is must be seen as the will of the people and their acceptance of the democratic process adopted by India as a nation. This question of plebiscite can, for a simple observer, be seen as the source of a majority of the unrest in the state and the reason for the “temporary provision” in the Constitution. It was believed at the time of accession that J&K, unlike other princely states, was not ripe for complete integration for a variety of reasons. Ayyangar, the principal orchestrator of the Article, believed that this difficulty shall be resolved in due course of time when the will of the people through the instrument of the J&K Constituent Assembly is expressed and only according to their determination of the constitution of the State and the sphere of Union jurisdiction over the State once peace was established and the people accepted such an arrangement.
The special provisions under Article 370 have created hostile sentiments on both side of the Jammu and Kashmir border. The special provisions allow for complete autonomy, complete inviolability of of the territory of the state, its own State flag and anthem allowed by subsequent Agreements between the State and the Centre. The State has greater regional autonomy than any other state and the Centre’s jurisdiction is much more limited in the Jammu & Kashmir than any other State. The objective of these provisions was to preserve the ‘Kashmiriat’ culture and to resolve the issue of alienation among the Kashmiri people by giving them autonomy to manage their own affairs. Unfortunately, however, this problem of alienation has intensified over the course of the past almost seven decades.
The state of Jammu and Kashmir has come under fire from all corners. Apart from the insurgency, the autonomy and the non application of Central laws in the state have created a detachment of the state from the rest of the country so much so that the people do not see themselves as part of the Indian country. The greater autonomy has created a resentment among the other states. The huge financial assistance that the State receives on account of being a belligerent territory and constantly in combat have led to it being called the most pampered state in India. There is a huge disconnect among the people of the State who see themselves as citizens of the state rather than of the country which in turn garners a huge amount of discontent among the population.
Kashmir enjoys a strategically important location that becomes important in light of this envy of the State toward the Centre and the rest of the country by extension. The Pakistani and Chinese governments have their vested interests in an independent Kashmir and have been supporting the militancy and insurgency in the State. Ammunition and funds are constantly fed into the the State giving vent to the separatist movements of the State. Article 370, for Indians is a link to the Jammu and Kashmir Constitution, but for Pakistan is an opportunity to assert illegitimate authority over the state of Jammu and Kashmir and intensify the separatist movements.
Having analyzed the cultural and historical significance of the Article, the belief that the “autonomy” as envisaged in the Constituent Assembly is intact is the one of the greatest myths that exists in the country today. A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State, the subsequent series of Presidential Orders have made most Union laws applicable to the State. There is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. 47 Presidential orders have been issued between 11 February 1956 and 19 February 1994 making various other provisions of the Constitution of India applicable to Jammu and Kashmir extending 94 of the 97 subjects in the Union List (the powers of the Central Government) to the State of Jammu and Kashmir, and 260 of the 395 Articles of the Constitution of India.
It is safe to say that the circumstances in which the Article came into existence do not exist anymore. The autonomy to the State does not exist in its original form, but is only an empty shell. The Article has remained in the Constitution as a result of political paralysis which is resulting in meaningless violence in the State at the behest of foreign parties. The Article only delays the process of complete integration of the State with the country, which has been on hold for the past almost seventy years. This Article is a result of complacence with status quo and inability to make strong and bold decisions at the Centre. The political scenario has changed but the violence in Jammu and Kashmir increases each day. Militancy escalating into war like situations and innumerable deaths every year on account of separatist movements and differences created within the State is the result of Article 370. The identity that the Article has created for the Kashmiri people has not united the country with the State but created a thicker wall than ever and needs to be abrogated at the earliest.
By: Shreya Singhi, NUJS Kolkata