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| Understanding Article 370 & its politics | | 
By K B Jandial
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. However, neither Dr. Ambedkar nor Sardar Patel who too was initially averse to it, did not obstruct its passage in the constituent assembly. In the last six decades, every political party has exploited it for vote bank politics. And, in every election, vociferous divergent voices reach its crescendo amidst the war of words that it unleashes between political parties to arouse public emotions, mostly for votes.
The politics on article 370 revolves around demand for its abrogation on one hand and on the other, allegation of its erosion. Is J&K a part of India only through the article 370 and if scrapped, would the State cease to be the part of the Republic? Is it a mere metaphor? Despite its political exploitation, overwhelming majority of the people is ignorant of the import and scope of this article which helps political leaders to exploit public sentiments on their party lines. How many of our leaders have read the article or aware of its provisions? For understanding it is essential to know why & how article 370 became a part of the Constitution.
Clause (7) of the Instrument of Accession signed by all the rulers of the princely states, exempted them 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” Clause (8) of the Instrument of Accession provided that it shall not affect the continuance of rulers’ sovereignty in and over the State. The intension was to grant internal autonomy to the rulers. So, they joined the National Constituent Assembly amidst impression that states would have separate constitutions for their internal administration. The states also wanted their separate Constitutions that could form part of the Indian Constitution. But during deliberations, it was felt that separate constitutions would be a legacy of the Ruler’s polity which would be against the democratic set up. But J&K insisted that the Parliament’s power to should be restricted only to the subjects enumerated in the Instrument of Accession.
J&K’s representation in the Constituent Assembly took place only in June 1949 when the Yuvraj Karan Singh nominated Sheikh Abdullah, Mirza Mohd. Afzal Beg, Mualana Masoodi & Moti Ram Baigra. They were signatory to the final document.
Drafting of Article 370.
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. He said, "At present the State is a unit of a federal State, namely the Dominion of India. This Dominion is getting transferred into a Republic, which will be inaugurated on the 26th January, 1950. Sardar Patel explained, “In view of the special problem with which the Jammu and Kashmir Government is faced, we have made special provisions for the continuance of the State with the Union on the existing basis," 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 is pertinent to mention that the J&K constitution cemented this relationship by declaring in its preamble and section 3 that it is an “integral part of India”.
What is article 370?
Article 370, indeed, confers special status and autonomy to Jammu and Kashmir. For better appreciation, we can broadly divide the article into three significant parts. 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. At the same time, the 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 clearly means that other provisions can also be extended to J&K but with the concurrence of the state Government.
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 the article which says that “notwithstanding anything in the foregoing provisions of this 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 specify: 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 the 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, it also provides a mechanism 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 (on alphabetically order.) . Thus, J&K became an inseparable part of Republic of India.
In the last 64 years, about 45 Constitution (Application to Jammu and Kashmir) Orders have been issued by the President by exercising the powers available under 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.
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? The more recent controversy that soured the relations of the ruling coalition partners- NC & Congress, related to the non adoption of 73rd & 74th constitutional amendments that empowered panchayats and urban local bodies in the country. By not applying Food Security Act, is the State helping the poor? How can the laws good for 124 crore Indians including 17 crore of Muslims, are harmful for us? 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 does not mean to deprive our people the laws beneficial for rest of the country.
Another aspect that invariably ‘boils the temperature’ in the state is the talk of its abrogation. As the provisions of the 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. Argument has merit that while amending provisions of the constitution, the Parliament assumes the powers of the constituent assembly. The article 368 was applied to J&K with a proviso which says that" provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370.
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 the 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.
(The writer is former Secretary information, health, transport,CAPD departments and a member of Public Service Commission.feedback:[email protected] )
(Opinions expressed in write-ups/articles/Letters are the sole responsibility of the authors and they may not represent the scoopnews.in)
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