Editor’s Note
Article 370 has been talked and written about at length but not much debate has been focused on the restrictive aspects of Article 35 in the context of the state of J&K. The author explains the major provisions, discusses the usefulness of both articles and opines on their relevance today.
IS ARTICLE 370 THE ROOT CAUSE OF CRISIS?
Minister of State in PMO , Mr. Jitendra Singh has criticized J&K Chief Minister Mehbooba Mufti’s remark on the national flag calling it ridiculous and categorically stated that the Flag will fly high in the Valley as much as it does in any other state. ‘If Article 35A -special rights and privileges to the people of J&K, is tinkered with, then there would be no one in the state to hold the Tricolour’, the Chief Minister had warned. What are these Articles 370 and 35A about?
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Mr. Jagmohan, the former Governor of J&K feels that to Kashmiri politicians, “Power is everything, fairness nothing.” He felt that the strongest roots of Kashmiri separatism and alienation lie in Article 370 of The Constitution of India, which gives special status to the State of J&K. It indeed does, I realiesed when I met a youngster on leave from the Valley, who casually stated that one thing that the people of the Valley seem to believe is that Article 370 gives them a special status and that Pandit Nehru promised a referendum. I tried to explain to him the circumstances under which Article 370 was incorporated in our Constitution. What its contents were and whether it has been diluted or exploited enough to lose its relevance.
When Maharaja Hari Singh signed the Instrument of Accession on 26 October 1947, he gave the jurisdiction of three subjects –Defence, External Affairs and Communications to the Union Government. The Instrument of Accession was exactly the same as was executed by the other heads of Princely states. The real substance of Article 370 is that the Union Parliament can make laws with regard to the items in the Union and concurrent lists but only with the concurrence of the State Government. This puts the state of J&K on a special footing.
The Article 370 is of transitional nature. The Constituent Assembly of the State of Jammu and Kashmir ratified the
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state’s accession to India in February 1956. The Delhi Agreement of 1952 when Sheikh Abdullah was the PM of J&K, led to a number of provisions of the Indian Constitution being extended to the State. Separately, the Constitution of J & K was amended in 1966 to change the title of Sadar e Riyasat to that of Governor and of Prime Minister to Chief Minister. The State has a constitution of its own which is a byproduct of Article 370, however in December 2016, Supreme Court clarified that,” Under Article 370 Jammu & Kashmir enjoys special status within the Constitution of India.
The Supreme Court snubbed the J&K High Court for asserting the states sovereignty and sovereign powers by stating that J&K has no vestige of sovereignty outside the Constitution of India. However the Law Minister of J&K Abdul Haq Khan stated that the judgment has confirmed the permanent provision of Article 370 in the Constitution of India and that immovable property cannot be bought by any outsider, in the state of J&K. The bench clarified that J& K residents are ‘first and foremost’ citizens of India. It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents, constituting a separate and distinct class in themselves.
We need to remind the High Court that permanent residents of the state of J&K are citizens of India and that there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world. It further stated that its judgment had no effect on Article 35A, which confers on permanent residents of J&K Special Rights and Privileges regarding acquisition of immovable property in the state.
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Article 370, 35A and Order of 1954 were incorporated to protect the cultural identity of the State of Jammu and Kashmir but it has in fact prevented people from the state itself to acquire property or residence in the Valley and has been blatantly used by Valley politicians to change the demographic pattern of the state by allowing mass migration to Jammu and Ladakh from the Valley but not vice versa. The elected representatives have had these ulterior motives and the majority people of the state are willing to threaten the Union of dire consequences should these special provisions be tampered with.
Article 370 and 35A favors land acquisition by the powerful in the Valley and is not in the interests of the common man of the State. The consequence of The Urban land Ceiling and Regulation Act 1976 not being applicable to the State of J&K is that the property holding of the politicians and the separatists in the state is unfathomable. Article 370 has also been misused to build political oligarchy. Some maintain that Article 370 is a bridge to the State of J&K and some call it a tunnel, hence must not be abrogated. Some want this Article and accompanying paraphernalia abrogated as it is an instrument for perpetrating injustices and inequities. They further argue that distinct personality and cultural identity of Kashmir can be safeguarded without this Article.
The young officer I had met, further informed me that the kind of anti India tirade that emanates from the loudspeakers of the Masjids everyday and is overheard by the troops in his post is disgusting, to say the least. He feels the people are brain washed and radicalised by the Imams who are busy Islamizing and want the Valley to be a part of a Caliphate. Hurriyat is only a cover for the Valley politicians, to pursue their separatist activities. They know they will lose their clout once the power shifts to the clergy from the politician. Concurring with this is the statement from Omar Abdullah former CM of J&K, “The aim of the Hizbul Mujahedeen, the largest Militant Organization in the State was Political and not Islamist like the Al Qaeda.” Article or no Article the fight is Ideological, ‘even if the roads are paved with Gold’.
Mr. Jagmohan the former Governor of J&K stated it beautifully when he wrote to the President of India, “The
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situation is grim and critical. Due to total inaction, unbelievable incompetence, widespread corruption and passive connivance, the administrative machinery and all other levers of power structure have been taken over by the subversionists and their collaborators. Majority of the officials are active or passive supporters of these elements. The remaining are mortally afraid. Infection has gone deep into the vital organs. Unless, this infection is first exterminated we would stumble from one critical situation to another.”
Over a period of time Article 370 has definitely become less empowering and more exploitative. Whether or not it’s also breeding terrorism is debatable because terrorism dates back to 1931. Pakistan is fishing in troubled waters since 1947 and the situation worsened after the dismissal of Farooq Abdullah in 1984. This is as puzzling as the chicken and the egg!
Lt Gen Sanjay Kulkarni (Retd)
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of BharatShakti.in)
