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Kashmir's special status: Contentious constitutional provisions
Posted:Aug 3, 2017
 
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By Brig Anil Gupta (retd.)
 
The political scene in Kashmir is again on the boil. Statements made by Jammu & Kashmir (J&K) Chief Minister Mehbooba Mufti, also President of the ruling People’s Democratic Party, during the curtain raiser and Founders Day Celebrations in Srinagar again highlighted the contentious issue of Kashmir’s special status with particular reference to Articles 370 and 35A of the Constitution of India.
 
These two articles have often been used by separatists and mainstream politicians in Kashmir to threaten nationalist forces who advocate complete integration of the state with the rest of India. These leaders often forget that they do not represent the sentiments of the entire population of the state and their rabble-rousing is confined only to the Kashmiri speaking districts of the province.
 
Former CM and National Conference leader Omar Abdullah added another dimension by stating, “How can you debate special status of Jammu and Kashmir without discussing accession? You can’t. They are two sides of the same coin. J &K acceded to India on the special status that was granted to it”, he said, sparking a fresh round of controversy.
 
In all the discussions, joined by media channels, there has been limited knowledge about the contentious Articles 370 and 35A.
 
Article 370
 
When rulers of the princely states signed the Instrument of Accession, they surrendered legislative, judicial and executive control of three subjects – Defence, Communications, External Affairs and Ancillaries.  The same is also true in respect of Hari Singh, Maharaja of Jammu & Kashmir. This implied that the princely states would have the right to decide upon policies, implementation and administration with regard to other issues, through such arrangements as Royal Proclamations or a separate Constitution for their respective kingdoms/states. However, in the process of integrating these states into the Indian Union, Sardar Vallabhbhai Patel successfully persuaded the rulers of these states to accept the Constitution of India in full.
Princely states acceding to India thus accepted the Indian Constitution totally, except the state of J &K.  Patel was kept away from dealing with the state by Jawaharlal Nehru, whose loyalty appeared to rest with Sheikh Mohammed Abdullah, who had revolted against the ruler of the state. Sheikh Abdullah finally managed to drive the Maharaja out of the state and negotiated individually with Nehru.
 
The ground reality in J&K was different from the other princely states. The state was under attack from Pakistan. The Indian Army was fighting to throw back the invaders. Although a UN-sponsored ceasefire was enforced on January 1, 1949, parts of the state’s territory were still under Pak occupation. Nehru unilaterally referred the Kashmir Issue to the United Nations, adding an international dimension. The situation was fluid. Sheikh Abdullah did nominate a 4-member team to the Indian Constituent Assembly.  They declined to sit in the Assembly but negotiated the status of J & K vis-a-vis the Indian Union from outside the Assembly. 
 
They insisted on acceding only those three subjects to the Indian Union which were included in the Instrument of Accession. In the words of Gopalaswamy Ayyangar, Nehru’s confidant and the man who drafted Article 370, “ultimately the will of the people through the instrument of the [J&K] Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.”
 
Due to the prevailing situation in the state, the Constituent Assembly could not assemble. Thus, when the rest of India was readying to adopt the Constitution of India, there was a constitutional vacuum in the state. To fill this vacuum Article 370 was inserted in the Indian Constitution in the hope  that J&K would, once the situation normalised,  integrate like other States of the Union (hence the use of the term “temporary provisions” in the title of the Article).
 
The terms of Article 370 were negotiated by Kashmiri Muslims keeping only their interests in mind while ignoring the sentiments and aspirations of the people of Jammu & Ladakh, whose combined population was (and is) larger than that of the Kashmiri Muslims.
 
Article 370 defined the applicability of the Constitution of India in part in the state of J&K until the Constitution of the state was finalised. Article 370 was only an additional legislative mechanism to facilitate this transition.
It is very important to note that in 1950, the Government of India clarified the effect of Article 370 in a white paper on Indian states which included the following:-
  • Constituent assembly will be convened to go into the matters in detail.
  • When the assembly will come to the decision on all the matters, it will make a recommendation to the President who will either abrogate article 370 or direct that it shall apply with such modification and exceptions as he may specify.
 
The Constituent Assembly was elected in October 1951. The National Conference & those sympathetic to it won all the seats unopposed because of a boycott by the Praja Parishad, the main political party of Jammu. The state Constituent Assembly met for the first time on October 31, 1951. It was criminal culpability on the part of Nehru that he or his Home Minister did not stipulate any conditions for the state Constitution, had no say in the terms of reference of the state constituent assembly and did not insist on representatives as observers of the proceedings in the state constituent assembly to ensure that the state constitution was in line with the basic structure of the Indian constitution.
 
Delhi Agreement 1952
 
It was evident that the Constituent Assembly would take its time to produce a definitive document. Meanwhile, Nehru obtained from Sheikh Abdullah some interim- based definition of the kind of relationship between the Indian Union and the State of J&K that would emerge in due course.
 
A series of negotiations were held in Delhi between representatives of J&K (representing National Conference) and the Government of India. Results of the negotiations were finally announced in the form of a document on July 24, 1952, known as the Delhi Agreement. It had no constitutional validity. The salient points included in the Agreement are:-
  • The Head of the State of J&K would be a person recommended by the State Legislature and recognized by the President of India and would be called Sadar-i-Riyasat;
  • The Indian flag would have the same status in J&K as in any part of India, but the  State flag would also be retained;
  • Citizenship would be common in two parts of the country, but the State legislature would have power to define and regulate the rights and privileges of the permanent residents in Kashmir;
  • The fundamental rights as laid down in the Indian constitution would be extended to Kashmir, but these would not come in the way of the State’s programme of Land Reforms;
  • Power to reprieve or commute death sentence would belong to President of India;
  • The Indian President’s power to declare a State of Emergency in case of external danger or internal disturbances would be extended to Kashmir, but in regard to internal disturbances it would be used only at the request of the State Govt.;
  • Residuary power would be retained by the State but the state could transfer more rights to the Union;
  • The Supreme Court could adjudicate disputes between the state and the Centre and other provincial governments and on fundamental rights agreed to by the State.
 
Article 35A
 
In February 1954, the Constituent Assembly ratified the State's accession to India. Pursuant to this ratification, the President of India promulgated the Constitution (Application to Jammu & Kashmir) Order, 1954 finally placing the applicability of other provisions of the Indian Constitution to J & K and accorded legal sanctity to Delhi Agreement.
 
Sections 2(3) and 2(4) of the Order made Part II of the Constitution of India dealing with Citizenship and Part III dealing with Fundamental Rights applicable to the State of J&K. However, it conferred powers to the State legislature to make special provisions for the permanent residents of the State and Section 2(4) (j) of the Order inserted Article 35A in the Constitution.
Thus, contrary to popular belief, it is the Presidential Order of 1954 and Article 35A leading in turn to the State Constitution, that provide special status to the state and debar other Indians from acquiring property there.
 
The modification made to Article 35, the inclusion of Article 35 A and the fact that Articles 12 to 15 of the Indian Constitution do not apply to the state of J&K must be studied together to understand why the J&K constitution is an attack on the secular and democratic values of India and against the Indian Constitution.
 
The Right to Equality, bedrock of democracy, has been sacrificed and judicial redress denied for non-permanent residents living in the state. It is this defiance of the basic spirit of the Indian Constitution which has been sanctified and legitimised in Article 35 A, about which not many people know since it was inserted as an Appendix and is not a part of the official text of the Constitution.
 
It was never presented before Parliament. The sole authority to amend the Constitution is vested only in the Parliament of India.  It is also quite astonishing that Abdullah and his National Conference, main architects of the State Constitution who were determined to abolish all symbols of Dogra Rule, were very keen to retain the State Subject Act 1927 enacted by the Maharaja.
 
Article 35 A categorises non-permanent residents of J&K as second class citizens since they cannot buy immovable property in J&K, are not eligible for employment by the state government, cannot contest or vote in local body or assembly elections, cannot avail of scholarships and other grants offered by the state government to its permanent residents and, above all, cannot seek redress in any court, local or national.
 
This is why there is little or no economic or industrial development in the state. No businessman or industrialist from the rest of India is willing to invest a rupee in a state which will not allow him to own property there.The state suffers from lack of adequate tourism infrastructure, backbone of its economy. J&K, thus, is mainly dependent on Government of India funds to meet all its expenditure.
 
This added particularly to the woes of the West Pakistan refugees, the Valmikis and Gorkhas who have been staying in the state for generations but have been denied the Permanent Resident status and attendant benefits. It also smacks of gender inequality since it violates the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man who is a non-state subject.
 
Article 35A acts as a hindrance in holistic development of J&K, affecting every sector. There is a dearth of faculty in engineering and medical colleges, IIT, IIM and IIMC. No professors from other states want to teach in the state because they cannot purchase a house for themselves there, their children cannot get admission in professional colleges or get government jobs.
 
The state’s Constitution was finally adopted on January 26, 1957.  The Constituent Assembly dissolved itself without recommending abrogation or otherwise of Article 370. It is crucial that temporary provisions made to mitigate a volatile situation must not be allowed to acquire permanency to appease a certain segment of the population and legalize discrimination there.  
 
Jammu and Kashmir is part of India because of an accession that took place in 1947 and not Article 370, which came into effect in 1949. Since the issue is sub-judice and before a Constitution Bench, it would not be correct to comment on the legality of these discriminatory provisions of the Constitution.
 
(Brig Anil Gupta (retd.) is a Jammu based political commentator, columnist, security and strategic analyst. He can be contacted at anil5457@gmail.com. )
 
 
 
 
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