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| Understanding Article 370 | | 
By K B Jandial
There has been lot of misunderstandings and wrong public perception on Article 370 besides being a serious point of political and ideological conflict. It is often said that Article 370 of the Constitution of India has been shrouded with controversies right from the beginning when the architect of the Constitution, Dr. B R Ambedkar declined to draft it, forcing Pt. Jawaharlal Nehru to task his another minister and former Diwan of Maharaja Hari Singh, Sir Gopalaswami Ayyangar, to negotiate it with Sheikh Abdullah. In the last six decades, every political party has exploited it for vote bank politics and in the process creates avoidable bitterness.
The politics on article 370 revolves around demand for its abrogation on one hand and on the other, allegation of its erosion. It is a fact that overwhelming majority of the people, including leaders, is ignorant of this Article. It is essential to understand Article 370 how it became a part of the Constitution.
First of all the Govt. of India Act 1935 envisaged an Instrument of Accession to be signed only the ruler of the princely States. The Act provided for a Federation under aegis of Her Majesty Govt. But the Indian Independence Act of 1947 envisaged two Dominions- India & Pakistan.
The Instrument of Accession signed by all Rulers including Maharaja Hari Singh was identical. Its Clause (7) exempted Rulers from “committing to any future constitution of India or fetter their discretion to enter into arrangements with the Government of India under any such future constitution.” And Clause (8) provided that “it shall not affect the continuance of rulers’ sovereignty in and over the State”. Obviously, the intention was to grant internal autonomy to all rulers who could have their own constitution. They joined the National Constituent Assembly with the impression that the Federal Constitution would comprise State constitutions as well. But during deliberations, Sardar Patel convinced the Rulers that separate constitutions would be a legacy of the autocracy that would be against the spirit of democracy which was a major plank of Independence movement.
Those wise men who say that J&K accession was only to three subjects need to appreciate the development of constitutional development. After the visit of Cabinet Mission, Attlee announced in the House of Commons on May 16, 1946 the Cabinet Mission Plan. It had accepted Congress proposal and had recommended the Union of India should deal with the subjects of Foreign Affairs, Defence and Communications and the States would retain all subjects and powers other than those ceded to the Union .Accordingly, all Princely States including J&K initially acceded to India with transfer of these three subjects to the Union Govt. but subsequently they decided to merge into India under “Patel Scheme” as the States realised that it was not possible to maintain their existence independent of the Dominion. Thus, rulers later on, agreed to put all subjects in the Union and Concurrent lists under the purview of the Unionl Legislature but the J&K continued with the original three-subject scheme.
After negotiating this article with Sheikh Abdullah, Ayyangar moved the draft article 306-A (as it was not recommended by the drafting committee) in the Constituent Assembly. The mention of “temporary provision" in the Constitution was necessitated as the power to finalize the constitutional relationship between the State and the Union of India had been specifically vested in the Jammu and Kashmir Constituent Assembly. It was expected that the J&K Constituent Assembly would make some recommendations about Article 370 which it did not do.
What is article 370?
Article 370, indeed, confers special status and autonomy to Jammu and Kashmir. For better appreciation, it can broadly be divided into three components. The first part is Clause 1(b) (i) which limits the powers of the Parliament to make laws for the State to the subjects of the Union and Concurrent lists that correspond to the matters specified in the Instrument of Accession. In the same breath, article provides another provision in clause 1 (b)(ii) that the Parliament shall make laws on those other matters in these lists that the President may order but only with the “concurrence of the Government of the State”.
Clause 1(c) is the second important part under which only articles 1 and 370 apply to Jammu & Kashmir. But the next clause 1 ( d ) read with the second proviso, provides that other provisions of the Constitution shall also be applied to the State, subject to such exceptions and modifications as the President may determine with the concurrence with the Government of the State. It needs no rocket science to understand that other provisions of the Constitution can also be extended to J&K but with the “concurrence of the Government of the State”..
How does the article define “the Government”? The “explanation” after clause 1(b) (ii) says that “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”. The words “ as the Maharaja of Jammu and Kashmir” were substituted by words “ the Sadar-i-Riyasat of Jammu and Kashmir” after the constituent Assembly of J&K abolished the hereditary rulership and passed a resolution for an elected head of the state by the designation of Sadar-i-Riyasat on 7th June 1952. ( now Governor.) Accordingly, the original definition underwent modification and notified by Ministry of Law vide order no C.O. 44 of 15th November, 1952. This is the only change ever made in the article.
Clause 3 is the third critical part of article 370 which says that “…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 specify” There is proviso which says, “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”.
From the above facts, it is clear that the article which on one hand limits the powers of the Parliament to make laws to subjects mentioned in the instrument of accession (clause 1(b) (i)) but on the other, provides another constitutional mechanism under clause 1(b)(ii)) to extend the powers of the Parliament with the concurrence of the J&K Govt. Similarly, while article specifically says that only article 1 and article 370 shall apply to the state automatically with the enforcement of the constitution on January 26, 1950, but it also mandates a mechanism in clause -1(d) for application of other provisions of the Constitution with “changes or modifications” as may specify in the Presidential orders issued with the “concurrence with the Government of the State”.
Article 1 is important as it defines India ‘as Union of States’ and its territory which comprises the territories of states including J&K. Initially, the states were categorized as Part A, Part B & Part C and J&K was placed in the first schedule among the Part B states which distinction was removed by the seventh constitutional amendment in 1957 consequent upon States’ reorganization. Now, there is only one category of the Indian States and J&K figures at Sr. no 15. Thus, J&K became an inseparable part of Republic of India and the section 3 of J&K Constitution also irrevocably says that J&K is and shall remain an integral part of the union of India.
Erosion of Autonomy?
In the last 66 years of the Republic, over 45 Constitution (Application to Jammu and Kashmir) Orders have been promulgated by the President by exercising the powers vested in him and procedure provided in clauses 1( b ) (ii) & (d) of article 370, extending various provisions of the Constitution of India and also the central laws to the State some with modifications to the benefit of the people. First such order was issued in 1950 itself followed by in 1952 when Sheikh Abdullah was the Prime Minister of J&K. Such concurrence was also given during Governor/ President Rules which too are constitutional Govts. covered under Article 370.
Not many know that the J&K Govt. initially resisted even extension of the pro-people Part –III of the Constitution that grants fundamental rights to the people. It was applied only in 1954 with some modifications. The right to property which ceased to be a fundamental right under Constitution of India continues to a fundamental right in J&K as the amendment annulling this right was not extended here. Who is benefitted by it- rich or poor? Non adoption of 73rd & 74th constitutional amendments that empowered Panchayats and urban local bodies in the country is another example of depriving the people of progressive laws.
Can it be abrogated?
Another aspect that invariably ‘boils the temperature’ in the state is the talk of its abrogation. As the provisions of article stand, it can only be abrogated or modification only on the specific recommendations of the Constituent Assembly of the State which is not in existence. In view of the explicit condition of recommendation of Constituent Assembly of the state the article of 370 cannot be abrogated. Some experts do refer to the route of article 368 which provides mechanism for amendment of the constitution invoking constituent power of the Parliament. Argument has merit but article 368 was applied to J&K with a proviso which sThis, of course, is debatable issue.
Those who talk of erosion of article 370 are either grossly ignorant of its provisions or politically motivated. The Governments of the State duly constituted under the constitution of the state and the Union Govts. have exercised the provisions of article 370 and extended central laws and provisions of the Constitution of India to the benefit of the people. No illegal or irregular course was adopted for the purpose. In no case, depriving the people of the benefit of progressive laws is not the spirit of autonomy envisaged by article 370.
A question arises as to how can the laws good for 124 crore people of the country including 19 crore of Muslims, could be harmful for just 124 lakhs of people of J&K? What a paradox that State’s ten MPs are party to their passage in the Parliament but their extension to J&K is resisted. In fact, most of the State’s laws are the copy paste of the central laws. Is resisting central laws only ego problem or well considered strategy to strengthen the mindset of a section of population that “we are a separate nation”? Special status or autonomy should not be used to deprive our people the laws beneficial for rest of the country.
(The writer is former Secretary Information, health, transport, CAPD departments and a member of Public Service Commission, feedback: [email protected])
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