Article 370: To Be Or Not To Be?

Article 370 is a contentious provision in the Constitution which incites many sentiments of the general public and political parties alike. This article has been in the news numerous times due to its combative nature. At a time when India is going through elections, many political parties have come up with their manifestos mentioning Art 370. So, what is this article? Why even since its inception in 1949, it continues to generate news? With the changing modern times and ever evolving Constitution, should it be scrapped? Does it have ceased to serve its usefulness? And if scrapped, what will be the consequences? All these questions will be answered here in this article.

What is Article 370?

Article 370 was incorporated in the Constitution of India on October 17, 1949. It exempts J&K from the Indian Constitution and allows the State to draft its own Constitution. It is a temporary provision which grants special status to Jammu and Kashmir under Part XXI of the Constitution of India. It restricts Parliament’s legislative powers in respect of J&K. All the provisions of the Constitution which are applicable to other states are not applicable here. This permits J&K to have a special status. For example, if Central law has to be applied on the State, then under Instrument of Accession, mere consultation with the state is needed. For any other matter, concurrence of the government is compulsory.

The Instrument of Accession came into play when Kashmir was inducted with India under special circumstances. Raja Hari Singh had initially decided to be an independent state. But following an invasion from tribesmen and Army men from Pakistan, it sought the accession to India. The Instrument of Accession was signed on October 26, 1947. The State specified its own terms of References through which it intended to join. Any breach of contract, will lead to the restoration of the original position.

The Indian State Policy dictated that whenever there was a dispute on Accession, it should be settled with the wishes of the people rather than one single princely ruler. The Government always thought it to be temporary in nature.

The Schedule appended to the Instrument of Accession gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications. It has been explicitly mentioned that the terms of “Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by the signed ruling prince by an Instrument supplementary to this Instrument”.

Provisions of Article 370

According to this article, except for defence, finance, communications and foreign affairs, Parliament needs the state government’s concurrence for applying all other laws. Thus, the state’s residents live under a separate set of laws, including fundamental rights, fundamental duties, directive principles of state policies, citizenship, ownership of property and emergency as compared to other Indians. Also, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir. Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government. The provisions of Article 368 of the Constitution of India are not applicable for the amendment of the State Constitution of Jammu & Kashmir. The Indian Parliament cannot increase or reduce the borders of the state. The Union has no power to suspend the Constitution of J&K.

Significance of the Article 370 for the Union of India

Article 370 has been described as a bridge through which the Constitution is applied to J&K. It mentions J&K in the list of States. Central Government has used this Article by Presidential Orders to enact any law in the State. India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K. This renders the effects of special status of J&K. There have been times when almost the entire Constitution has been integrated to the J&K, including the Constitutional Amendments. In spite of the fact that amendment power has not been given to the President, Centre has previously used the power of Article 370, to amend a number of provisions in J&K. This can be seen as, Article 356 was extended though a similar provision. Ninety-four of 97 entries in the Union List are applicable to J&K; 26 out of 47 items of the Concurrent List have been extended. 260 of 395 Articles have been extended to the state, besides 7 of the 12 Schedules. Hence, Article 370 has proved to be a medium for Central Government to use to apply provisions in the J&K.Article 370 is not only part of the Constitution but also part of federalism, which is basic structure of the Indian Constitution. Accordingly, the court has upheld successive Presidential Orders under Article 370.

Use of Article 370 for J&K

Recently, Jammu and Kashmir, Ex Chief Minister stated that the relationship between the Union and the State would be over if Article 370 of the Constitution is revoked.The importance of Article 370 is not of integration but of autonomy.Article 3 of the J&K Constitution declares J&K to be an integral part of India. In the Preamble to the Constitution, J&K does not proclaim itself to be sovereign or an Independent entity. Rather in its Constitution, it acknowledges the existing relationship with the Union of India and support to be an integral part thereof. The people of the State are not referred as ‘citizens’ but are referred as ‘permanent residents’.

What will Happen if Article 370 is Deleted?

Article 370 can be deleted by a Presidential Order. Such an order, however, is to be preceded by the concurrence of J&K’s Constituent Assembly. The Assembly was dissolved on January 26, 1957, and so people view that it cannot be deleted anymore. But the other view is that it can be done, but only with the concurrence of the State Assembly.

When Article 370 serves a useful purpose to the Centre and does not grant an unfair special status to J&K. So, why still there is debate about its exclusion from the Constitution?The answer lies in the fact that,those who advocate its deletion are more concerned with uniformity rather than integration. Those who argue it to be scrapped say that it creates psychological barrier in the minds of the citizens (J&K residents and rest of the citizens of the country). These barriers are the root cause of all problems since it does not allow people to integrate with the rest of the country. According to them, it encourages secessionist tendencies since a separate Constitution will always create a demand for separate country. Advocators who want it to be scrapped state that accession was temporary until a plebiscite. The arrangement was temporary in nature since its time of inception and thus, it constantly serves a reminder to J&K to integrate with the rest of the country.

Argument against the omission of Article 370 is that, the abrogation will cause serious consequences. If it is deleted against the people’s wishes and State Assembly, it will be a breach of honor by the Union of India since it signed Instrument of Accession. Going against it will have serious repercussions. There have been separatist activities in some parts of the states too. Hence, it does not prove that a separate Constitution encourages secessionist tendencies. Also, debate against the fact that it is temporary in nature has been proved false by the Supreme Court.The Supreme Court in April 2018 said that despite the headnote using the word “temporary’, Article 370 is not temporary. In Sampat Prakash (1969) the SC refused to accept Article 370 as temporary. A five-judge Bench said “Article 370 has never ceased to be operative”. Thus, it is a permanent provision.

What can be done?

The doubt regarding whether Article 370 should be deleted or not, lies in its history. It creates invisible lies between its own citizens. The Muslim majority Kashmir signed Instrument of Accession with a Secular India. Any effort to push the resolution of deleting it, should be carefully thought of. First of all, the Central Government should carefully look as to why the people of J&K are resisting the efforts to scrap this article. Does the fault lies in the Central leadership that it could not bring Kashmiris into confidence of uniformity and integration? Why over the years since their accession, they are still looked with suspicion? Do the fault lies at the structure of society- the basis here being the religion? Here, the Central Government, instead of focusing on the expulsion of Article 370, should focus on bringing Kashmir and Kashmiri’s into mainstream India.

This can start by creating employment opportunities in the State. Focus should be on the infrastructure of the state which will bring investment and prosperity by increased livelihood and income. The administration of the state should be at par with the rest of the state. There is lack of effective information and communication plan which has hobbled the government's ability to respond in a quick and effective manner. The continuing violence through terrorism and use of lethal force by the army, resulting in destruction of life and property also bars the people to believe in the central government. Efforts should be made against the use of force and creating peace within the state. The use of lethal force or strongest act should be curtailed against the people. Peace building is required on the ground by multiple stakeholders.

Instead of concentrating and pushing for the reforms in Article 370, the government should try to build trust with the people. It should understand the core psychology behind the resistance of the citizens. Any forcible actions will prove to be disastrous. When the citizens are discontent and disgruntlement is loud, the government at the head should pay increased attention rather than drowning those voices, after all, citizens are the bedrock of its foundations.

Source: CSC July 2019, Pg 83-84