Jammu Kashmir and Article 370 - An Assessment - Part II

Continuing from Jammu Kashmir and Article 370 - An Assessment - Part I

I hope you have had a good read from the Part I of this series. It would be important now to focus on the aspects of Article 370 from the Constitution of India that gives Autonomous Status to J&K with its on Penal Code and Constitution.

The Article 370 as it reads for itself "Temporary Provisions with respect to the State of Jammu and Kashmir" never proved to be temporary till date and day by day is becoming more permanent fixture to the Constitution of India.  Though way back in October 1949, Maulana Hasrat Mohini had raised a question - "Why this discrimination please?" to which the Answer by Mr. Ayyangar was "For a variety of reasons J&K , unlike other princely states was not ripe for integration as India and Pakistan had been at war over J&K, and although there has been a ceasefire, the conditions still were unusual and abnormal. Part of State's territory is in hands of rebels / enemies."

So that laid the foundation that was then casted over with some concrete agreements and negotiations leading to inclusion of Article 370 in the constitution of India.

The clause by clause coverage of Article 370 - 

1. Notwithstanding anything in this Constitution (a) the provision of Article 238 shall not apply in relation to the State of J&K;

Note: Article 238 has been Omitted by Constitution by 7th Amendment Act 1956. So this clause seems to automatically seem to stand Null & Void

1. (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 far 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.

Note: Since than a series of Presidential Orders have made most Union Laws applicable to the State of J&K, thus eroding this section in particular. Today there is NO institution of India that does not include I&K within its Jurisdiction.

1. (c) the provisions of article 1 and of this article shall apply in relation to that State; 

1. (d) such of the other provisions of this Constitution may 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 instruments of Accession of the State referred to in Paragraph (i) of sub-clause (b) shall be issued in consultation with the Government of State: Provided further that no such order which relates to matters other than those referred 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 subclause (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.

Note: Interesting portion here now is the Sub-clause 1 (d) was exercised in 1956 when the Constituent Assembly of J&K passed the resolution of Accession to India.  So now if we look at that sub-clause, it is another section that stands Null and Void.  So eventually the Clause (1) of the Article is practically defunct.....

To have a deeper look at the Clause (2) of the Article, J&K State Constitution as framed in 1956 and last amended in 2002 (29th Amendment) has a preamble - 

WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves- JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and' worship; EQUALITY of status and of opportunity; and to promote among us all ; FRATERNITY assuring the dignity of the individual and the unity of theNation; IN OUR CONSTITUENT ASSEMBLY this seventeenth day of November, 1956, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 

Further in Part II of the Constitution of J&K it reads - 

Extent of executive and legislative power of the State:- The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.

So if we actually review the whole case, there is nothing from Article 370 that has anything that is valid for the date the controversy over it is brewing.  I am not sure what is the use of this particular Article 370 any more?

Why are politicians so whimsical to make statements that would help only insurgents and not the Citizens / Residents of the State.

The Article 370 for itself provides for omitting this article from Constitution by the way of a Presidential Order.  the only catch is with due support from the States Constituent Assembly....and with the both Ruling and Opposition Parties in J&K opposing that move....it seems a bit difficult a situation.

Overall, Article 370 is does neither seem to be standing relevant in present time, nor does it seem to be applicable to / favoring the situation of J&K.....It just is fueling further separatist sentiments and keeping the Kashmir Pandits away from where they belong.

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References:

• Article 370 of Constitution of India
• Constitution of Jammu & Kashmir
• Article 370: The untold story
• What is Article 370?
• Understanding Article 370

Jammu Kashmir and Article 370 - An Assessment - Part I

The latest development on Kashmir comes in from the Statement of Minister of State for PMO India Mr Jitendra Singh that Government is was open to debate on Article 370 in Jammu & Kashmir (J&K),while making it clear that efforts would be made through this exercise to "convince" the "unconvinced". A sharp reaction from Mr. Omar Abdullah the Chief Minister of J&K came in stating that either Article 370 stays or J&K wouldn't me part of India.

Now that's a very bold statement by Mr. Omar Abdullah that certainly would fuel a lot more controversy than helping the new Government handle the situation on J&K front. 

However, before we get into the controversy in brewing it is important for us to understand the History and what led Article 370 find a place in the Constitution of India....

So, looking back at the history, we find that the Article 370 was worked out between the then Prime Minister of J&K Mr. Sheikh Abdullah and Mr. Jawaharlal Nehru, the then Prime Minister of India. This certainly was a mistake from Mr. J.L. Nehru as he overstepped the into the Portfolio of the then Home Minister Sardar Vallabh Bhai Patel. (Let's Term it as Mistake 1). Incidentally, the commission and omissions of Article 370 could be explained either by Mr. J.L. Nehru (not possible) or anyone who might be alive (distant case or I may be day dreaming). But these commissions and omissions are responsible for the Controversy surrounding J&K and we have been suffering the consequences for last 67 years now.

Another blunder was the clause to Article 370 that any change to this article would be brought in only after concurrence of J&K assembly (Let's Term it as Mistake 2). Why? if J&K is supposed to be integral part of Republic of India, why does J&K assembly be intervening? This clause certainly was inducted to please Mr. Sheikh Abdullah who happened to become Sardar-e-Riyasat after doing away with the monarchy as he always wanted to for his hatred towards the then Hindu King of J&K Mr. Hari Singh. It is to be noted that the accession of J&K to republic of India was approved by J&K assembly only in 1956 after all the changes in J&K ruling front were introduced and Mr. Sheikh Abdullah was designated as Sardar-e-Riyasat. 

Mr. J.L. Nehru promised that Article 370 would be a temporary measure (a False promise) but there was no timeline defined for the review and owing to the causes mentioned in the previous paragraph, it never got reviewed for changes / repeal. Certainly another blunder by Nehru.

Nehru then brought in Mr. Gopalswamy Ayyangar (erstwhile PM of J&K) to help deal with the newly coined Article 370 and take it to the Constitution committee. Sardar Patel opposed but then Mr. J.L. Nehru made a statement on Dec. 27, 1947 that can be called as Mistake 3 - 

“Gopalaswamy 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 for 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 Gopalaswamy was hardly in keeping with the courtesy due to a colleague.”

Apparently Sardar Patel got miffed with the development and resigned from his post and the matter was then taken up with Mr. M.K. Gandhi to resolve the tiff between Mr. Nehru and Sardar Patel.

On the other hand the proposal for Article 370 was rejected by the Constitution Committee as well as the Working Committee of Congress. Mr. Nehru then had to turn to Sardar Patel to get the Article included in the Constitution and this is where Sardar Patel erred to support Mr. Nehru and succeeded in convincing the Constitution Committee and Congress Working Committee. (Mistake 4)

In 1947 itself Mr. Sheikh Abdullah was arrested by King Hari Singh on the charges of Sedition and Mr. Nehru is said to have pleaded his case (Mistake 5). It is said that Mr. Nehru too was arrested while trying to enter J&K then. Later on Aug. 9, 1953, Mr. Nehru himself had to have Mr. Sheikh Abdullah arrested on Sedition Charges, but Mr. Nehru let go the option of repealing Article 370 (Mistake 6). A golden opportunity lost....

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References:

• Either Article 370 will exist, or J&K won't be a part of India, Omar Abdullah tweets 
• Article 370: The untold story
• What is Article 370?
• Understanding Article 370