WHY ARTICLE 370 HAS TO GO

Our valued contributor FOOTPRINTS argues Art.370 of the Indian constitution has to go. No, he is not a parivaarist. But he has his reasons. He denies that Jammu and Kashmir was given a ‘special status’ during its accession to the Indian Union. It is a myth, he declares and goes on to say: The Reality Jammu and Kashmir was never given any kind of special status. Maharaja Hari Singh, the ruler of the state, acceded to merge with India, signing the Instrument of Accession in October 1947, exactly the same way that all other acceding Indian princely states had done. Under the Constitution, Jammu and Kashmir simply became just another Indian state. Nehru’s understanding of the nascent Indian nation-state was naïve and confused. Pragmatism and Nehruvianism were poles apart. Nehru’s style of governance led to confusion, contradictions, constitutional anomalies, and myths. He unilaterally approached the UN without even taking his own colleagues into confidence. Sardar Patel was made to function as home minister minus Kashmir. Nehru dealt with Kashmir himself, helped by Sir N Gopalaswami Ayyangar, a minister without portfolio, who happened to be a former Prime Minister to Maharaja Hari Singh from 1936 to 1943. The Myth Article 370 is fixed, permanent, and cannot be abrogated or amended (like the Ten Commandments!). The Reality Article 370 was conceived as a temporary and transitional arrangement with a specific objective, as the Constituent Assembly debates themselves reveal, which was to cement Kashmir’s integration with India. The very line of the Article reads: “Temporary provisions with respect to the State of Jammu and Kashmir.” Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions. This procedural mechanism between the Indian Constitution and Jammu and Kashmir has been systematically abused to defy the basic norms of the Constitution and create a state within a state. ‘Secular’ and ‘Socialist’ added to the Preamble of the Indian Constitution have no application in the state of Jammu and Kashmir! Perpetrating patriarchy and inequality Article 370 brazenly promotes patriarchy and inequality between men and women. A woman from anywhere in the world marrying a MAN from Jammu and Kashmir acquires naturalized citizenship, but a WOMAN from Jammu and Kashmir marrying even any Indian MAN is deprived of citizenship rights within the state. Children from a marriage between a Kashmiri woman and an outsider have no claim or right in the state. Almost 130 laws of the Constitution are inapplicable in the state, including the 73rd and 74th constitutional amendments dealing with Panchayati Raj, thereby protecting the interests of feudal lords in the state. The Urban Land Ceiling Act has no effect in the state, conferring an unfair advantage to a handful of rich people to accumulate urban land and keep the masses deprived. Article 370 ensures that SCs and STs in Jammu and Kashmir are deprived of political reservations. The Prevention of Corruption Act, 1988 and Right to Education Act (RTE) are not applicable in Jammu and Kashmir. All Indians are equal, but Kashmiris are more equal than others! The Background   In 1949, the then Prime Minister Jawaharlal Nehru directed Kashmiri leader Sheikh Abdullah to consult Dr. BR Ambedkar (then law minister) to prepare the draft for a suitable article to be included in the Constitution. Dr BR Ambedkar, a patriot and the principal drafter of the Indian Constitution, refused to draft Article 370. Ambedkar reportedly told Abdullah (according to Balraj Madhok): “You wish that 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 Government of India should have only limited powers, and Indian people should have no rights in Kashmir. To give consent to this proposal would be a treacherous thing against the interests of India, and I, as the Law Minister of India, cannot betray my country.” Subsequently, Abdullah went to Nehru, who in turn directed him to Gopalaswami Ayyangar. Ayyangar approached Sardar Patel asking him to do something as it was a matter of prestige of Nehru. Sardar Patel expressed his misgivings, but Nehru was adamant. On Dec 27, 1947, he pompously said to the Sardar, “Gopalaswami Ayyangar has been especially asked to help in Kashmir matters. Both for this reason and because of his intimate knowledge and experience of Kashmir, he had to be given full latitude. I really do not know where the States Ministry (Sardar Patel’s ministry) comes into the picture except that it should be kept informed of the steps taken. All this was done at my instance, and I do not propose to abdicate my functions in regard to matters for which I consider myself responsible. May I say that the manner of approach to Gopalaswami was hardly in keeping with the courtesy due to a colleague?” The Sardar thereupon resigned, and the matter fell in Gandhi’s lap to bring the two colleagues together. During this period, V Shankar, IAS was the personal secretary to Patel and maintained a record of all events. It is clear from these records that Nehru finalized the draft of Article 370 along with Sheikh Abdullah without even informing Patel. Thereafter, it fell to Gopalaswami Ayyangar to get the draft passed in the Constituent Assembly discussions. The proposal was torn to pieces by the Constituent Assembly and also Congress Party Executive. Nehru, who was abroad at the time, swallowed his pride and rang up Patel and requested him to get Article 370 approved. It speaks volumes of Patel’s loyalty to a colleague that despite his own and others misgivings, he managed to convince the members of Constituent Assembly and Congress Party Executive. But to V Shankar he said “Jawaharlal Royega.” V Shankar, in his record, has described the meeting of the Congress Executive Committee: “The meeting was one of the stormiest I have ever witnessed barring the party meeting which discussed the proposition relating to Rajaji becoming the first President of Indian Republic. The opinion in opposition to the Gopalaswami formula was forcefully and even militantly expressed, and the issue even brought in the sovereignty of the Constituent Assembly to draw up the Constitution without being tied down to the apron-strings of the Kashmir State Constituent Assembly.” Entrenchment of vested interests In 2004, the Jammu and Kashmir state high court, in the case of State of J&K versus Sheela Sawhney, declared that there was no provision in the existing law dealing with the status of a female permanent resident who married a non-resident. The provision of women losing their permanent resident status after marrying outside the state, therefore, did not have any legal basis. It brought relief to women marrying outside the state.   Soon thereafter, the People’s Democratic Party led by Mehbooba Mufti passed a law to overturn the court judgment by introducing a Bill styled “Permanent Residents (Disqualification) Bill, 2004,” which was further backed up by Omar Abdullah’s party. The Government of India can make laws only with concurrence of the Jammu and Kashmir State government, practically giving the latter a kind of “veto power.” Article 352 and 360 for declaration of national and financial emergency respectively cannot be applied in Kashmir. While a citizen of India has only Indian citizenship, J&K citizens have two citizenships. Anti Defection Law is not applicable to J&K. No outsider can buy property in J&K state. The beneficial laws such as Wealth Tax, Gift Tax & Urban Land Ceiling Act and intermarriage with other Indian nationals do not operate in J&K State. Even Article 356 under which President of India can impose his rule in any state cannot be enforced in J&K without consent of the Governor who himself is an appointee of the President. Ill effects of Article 370 on the minorities Taking full advantage of Article 370, the National Conference government, first led by Sheikh Abdullah, then by others, perpetuated the archaic, exclusionary, and highly discriminatory rule known as the State Subject law. In 1890, the then Maharajah had instituted a law disallowing outsiders from owning land and property in the state. This law was further strengthened in 1927. The law made sense in those days, since it was meant to prevent the colonial British from establishing their presence in the state. In 1947 and later, however, this rule has been used by the National Conference governments to gradually and decisively eradicate the minorities. The State Subject law has a unique feature to it that acted as a double pincer in squeezing out a majority of the Pandit population. Women who marry men (including those who are Kashmiri Hindus) domiciled outside the state, automatically lose their right as a ‘State Subject’. Even if their children are born in the state, those children have no rights and are destined to live elsewhere in India. In order to permanently settle the issue of Kashmir, abrogation of Article 370 should be immediately followed by re-organization of the state into three distinct entities:–Jammu, Ladakh, and Kashmir. Defying logic and reason Article 370 has made Jammu and Kashmir a country within a country, with its own flag, emblem, constitution, and Sadr-i-Riyasat (Prime Minister). How is it logical and reasonable for a state’s residents to live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians? Will the government grant such rights under Article 370 to Kerala or Bihar, for example?

Savukku editorial doesn’t endorse the views of this author, but we are willing to engage in a debate on this. We believe in the right of any nationality to decide on their destiny, though any solution to this thorny issue bleeding both India and Pakistan for decades now should have to factor in the ground realities on various planes. At the moment we recommend http://scroll.in/article/665862/Myth-No-1-about-Article-370:-It-prevents-Indians-from-buying-land-in-Kashmir, that puts across a viewpoint in support of Art.370. We will soon be carrying our own.