Hard Truth with Anant Mishra: Understanding the Provisions of Article 370 of the Constitution of India

January 27, 2015 OPINION/NEWS

Kashmir-Flags

 

The derivation:

The Indian Independence act of 1947, which was officially given royal approval on 18th July, 1947, contained various provisions for the formation of separate dominions: India and Pakistan.

This same act contained special provisions for the then cities under British rule. As per the Mountbatten plan, the princely states had two options following the end of British crown:

  1. Accede to any one of the two new dominions

  2. Retain an Independent Status

Between August 1947 and March 1948 rulers with a large Muslim majority signed the instrument of Succession to join Pakistan, while over 560 princely states acceded to India. The State of Jammu and Kashmir, with its 77% Muslim majority, was expected to accede to Pakistan as it had commercial trade with West Punjab for years. But the then Hindu ruler, Maharaja Hari Singh chose to accede to India. This condition of accession brought the introduction of a new Article in the Indian Constitution (which was earlier drafted numerous times depending upon situations) granting Kashmir a special status. Later on special status were approved to Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim (after it emerged with India in 1975), along with Mizoram, Arunachal Pradesh and Goa.

 

 

From the Text: Article 370:

 

(1) Notwithstanding anything in this Constitution:

(a) The provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) The power of Parliament to make laws for the said State shall be limited to: (I) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and (ii) Such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

For the purposes of this article, 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; (c) The provisions of article 1 and of this article shall apply in relation to that State; (d) Such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1)or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon. (3) 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.

 

The Inkling:

This article clearly specifies that any matters excluding Defence, Foreign Affairs, Communications and others (matters mentioned in the instrument of accession), the Indian Parliament will need approval from the State government to implement any law within the state. Hence residents living in the state will follow a separate set of laws, including the ones involving citizenship, ownership of property of any kind, along with some basic fundamental rights, as compared to Indian’s residing in other states.

   

Indira- Sheikh Accords of 1974:

After the victory over Pakistan in 1971, India’s positioning in Kashmir became strong and Mrs Gandhi was not at all ready to give concessions to Kashmir. This brought Sheikh Abdullah, a “people loved” separatist to seek for a peaceful plebiscite in return for an autonomous special status to Kashmir. This agreement was later known as Indira-Sheikh Accords. Nonetheless Gandhi declared the State of Jammu and Kashmir an integral part of India in 1975.

Some salient features included were:

  1. The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India.

  2. The residuary powers of legislation shall remain with the State; however, Parliament will continue to have power to make laws relating to the prevention of activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and the Constitution.

  3. Where any provision of the Constitution of India had been applied to the State of Jammu and Kashmir with adaptation and modification, such adaptations and modifications can be altered or repealed by an order of the President under Article 370, each individual proposal in this behalf being considered on its merits; but provisions of the Constitution of India already applied to the State of Jammu and Kashmir without adaptation or modification are unalterable.

    4. With a view to assuring freedom to the State of Jammu and Kashmir to have its own legislation on matters like welfare measures, cultural matters, social security, personal law and procedural laws, in a manner suited to the special conditions in the State, it is agreed that the State Government can review the laws made by Parliament or extended to the State after 1953 on any matter relatable to the Concurrent List and may decide which of them, in its opinion, needs amendment or repeal. Thereafter, appropriate steps may be taken under Article 254 of the Constitution of India. The grant of President’s assent to such legislation would be sympathetically considered. The same approach would be adopted in regard to laws to be made by Parliament in future under the Proviso to clause 2 of the Article. The State Government shall be consulted regarding the application of any such law to the State and the views of the State Government shall receive the fullest consideration.

  1. As an arrangement reciprocal to what has been provided under Article 368, a suitable modification of that Article as applied to State should be made by Presidential order to the effect that no law made by the Legislature of the State of Jammu and Kashmir, seeking to make any change in or in the effect of any provision of Constitution of the State of Jammu and Kashmir relating to any of the under mentioned matters, shall take effect unless the Bill, having been reserved for the consideration of the President, receives his assent ; the matters are a) the appointment, powers, functions, duties, privileges and immunities of the Governor, and b) the following matters relating to Elections namely, the superintendence, direction and control of Elections by the Election Commission of India, eligibility for inclusion in the electoral rolls without discrimination, adult suffrage and composition of the Legislative Council, being matters specified in sections 138,139, 140 and 50 of the Constitution of the State of Jammu and Kashmir.

  2. No agreement was possible on the question of nomenclature of the Governor and the Chief Minister and the matter is therefore remitted to the Principals.

 

 

Long lost hope: Kashmiri Pandits

Every time we talk about Article 370 the debate gets longer on the issue of Kashmiri Pandits – a Brahmin community residing mainly in the Kashmir valley. During the 1990’s, mass migration of Kashmiri Pandits from the region were recorded; as per the UNHCR more than 350,000 evacuated in fear but some speculated the numbers are more. Allegations are that these were the acts of separatist militant organizations and they conducted this as a part of their “hate-India” agenda. With the formation of a more active government during recent years, many Kashmiri Pandits support organizations such as the Panun Kashmir has called for the “immediate removal of this article” They also demanded the rightful return of Kashmiri Pandits back to their homes.

 

International Agenda:

Border nations like China and Pakistan that have already claimed over vast territorial lands in Kashmir and Pakistan see this as an opportunity to flame uprising in India. Pakistan on numerous occasions has blamed the Indian administration along with Border Security Forces for mass killings of Muslim civilians in the valley and claimed the security force encounters as an “intentional attack on Muslims”. In a report submitted to UNHCR, Pakistan’s Human rights organizations state “Indian troops have killed innocent lives in the region of Kashmir, and this is an alarming situation.  Indian troops are responsible for widespread murder and rape of innocent Muslim women while citizens are targeted in the name of terrorists”.

In the past, the Indian government always provided the residents of Kashmir with an autonomous approach both bilaterally and internationally. However with the increasing insurgency in Kashmir and Pakistan’s continuous violations of cease fire, the central government has to resolve this issue once and for all as this is not only affecting internally, it is also damaging relations externally.

 

The current situation:

Since the accords were signed, the State government has been working under the same provisions, with some criticism. Dr. Shyama Prasad Mookerjee was a strong critic, who openly criticised this issue and considered these provisions as the “Balkan of India”. His views were clearly written in the manifesto of Bharatiya Jana Sangh, a party he founded in 1951 and more recently in the election manifesto of the Bharatiya Janta Party along with some unresolved issues like Ram mandir.

In an attempt to resolve this issue, The Government of India appointed a group of some interdisciplinary personals for Jammu and Kashmir. The working committee came into action on October 13th 2010 with the objective to return the states status to pre 1953. This group submitted its report to the Manmohan Singh’s lead government in early 2012 and was made public on May 24th, 2012.

The members of the group, renowned journalist Dileep Padgaonkar, famous academician Radha Kumar, and former information commissioner M. M. Ansari declined the possibility of bringing the state in the pre 1957 position, but recommended to form a separate Constitutional Committee (CC), to review all the Central and the State acts signed after the 1952 agreement. They also recommended a “look ahead” approach (that will comprise of all future strategic, political and economical change in the state as a result of globalization) and suggested all the working stakeholders to reach on an agreement on the Articles swiftly.

 

 

Some salient features in the report:

Political Structure:

  • The group recommended for the formation of a Constitutional Committee (CC) that will be responsible to review all the agreements signed in the state Jammu and Kashmir since 1952. The Committee should bring out a definitive result within 6 months.  According to the group, the CC will review whether and what Acts are beneficial for the people of Jammu and Kashmir along with any acts with this resemblance passed.

  • The use of ‘Temporary’ word in the Article 370 should be replaced with a term “Special” and this will be valid of all the states under the Article

  • The laws made by the Centre will only be implemented if it benefits the people of Jammu and Kashmir and safeguard their interests, especially in areas of water and energy resource.

  • The Governor will be appointed by the President. However the State government shall provide three names for recommendation.  The President’s decision shall be final.

  • Formation of separate regional councils for Jammu and Kashmir and Ladakh and some legislative powers in Financial and legislative powers should be dissolved. This Regional council shall include subjects regarding prison reforms, public health, roads and bridges.

 

Non Political Recommendations:

  • There are almost 16 central sponsored schemes that are funded primarily funded by Centre. However most of the funds get unutilized.  The group suggested forming an effective monitor and ensuring proper utilization of funds.

  • A committee of experts monitoring states financial needs

  • The establishment of hydro electric projects in the state. Currently a meagre 15% has been utilized.  Establishment of more hydroelectric projects within the range of central government’s equity.

  • Immediate evacuation of buildings occupied by officers of the military.

  • Incentives and Financial Packages to the North Eastern States

  • Declaration of Special economic zones in hilly or remote areas

  • Immediate removal of internet and mobile restrictions

 

To fulfil the stated above, Group also prepared the road map:

  • Immediate release of Political prisoners and “stone peters” whom no serious acts were charged and release all those who were framed.

  • Immediate review of Armed Forces Special Powers Act, 1990 along with the Jammu and Kashmir Public Safety Act, 1978.

  • The state should ensure safe return of displaced Kashmiri Pandits and design relief packages for them

  • Formation of a Judicial Body/Commission to supervise the bodies buried in unmarked graves.

 

 

 

 

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Anant Mishra

Anant Mishra is a former Youth Representative to United Nations. He is an Associate Member of Institute of Defence Studies and Analysis, New Delhi specializing in counter terrorist operations and foreign policies in Africa and Middle East.

 

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