A brief of
Ar 370
Why it was
incorporated
First,
-why was
Article 370 inserted in the Constitution?
-Or as the great poet and thinker, Maulana
Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: “Why this
discrimination please?”
(two question was posted during the insertion
of ar 370)
-The
answer was given by Nehru’s confidant, -Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union
Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the
principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir,
1) unlike
other princely states, was not yet ripe fr integration. India had been at war
with Pakistan over Jammu and Kashmir and while there was a ceasefire, the
conditions were still “unusual and abnormal.” Part of the State’s territory was
in the hands of “rebels and enemies.”
2)The involvement of the
United Nations brought an international dimension to this conflict, an
“entanglement” which would end only when the “Kashmir problem is satisfactorily
resolved.”
3), Ayyangar argued that 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.”
[ In sum, there was hope that
J&K would one day integrate like other States of the Union (hence the use
of the term “temporary provisions” in the title of the Article), but this could
happen only when there was real peace and only when the people of the State
acquiesced to such an arrangement.]
-Th is Article 370 still intact in its
original form?
One of the
biggest myths is the belief that the “autonomy” as envisaged in the Constituent
Assembly is intact. A series of Presidential Orders has eroded Article 370
substantially. While the 1950 Presidential Order and the Delhi Agreement of
1952 defined the scope and substance of the relationship between the Centre and
the State with the support of the Sheikh, the subsequent series of Presidential
Orders have made most Union laws applicable to the State.
In fact
today the autonomy enjoyed by the State is a shadow of its former self, and
there is virtually no institution of the Republic of India that does not
include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to
permanent residents and their rights; the non-applicability of Emergency
provisions on the grounds of “internal disturbance” without the concurrence of
the State; and the name and boundaries of the State, which cannot be
altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for
several States which are listed in Article 371 and Articles 371-A to 371-I.
- can Article 370 be revoked unilaterally?
[ Clause 3 of Article 370 is clear. The
President may, by public notification, declare that this Article shall cease to
be operative but only on the recommendation of the Constituent Assembly of the
State. In other words, Article 370 can
be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened
and is willing to recommend its revocation.]
Note:this provision is very important because
parliament has limited power in this ar 370.
Of course, Parliament has the power to amend
the Constitution to change this provision. But this could be subject to a
judicial review which may find that this clause is a basic feature of the
relationship between the State and the Centre and cannot, therefore, be
amended.
Gender
bias?
Article 370 a source of gender bias in
disqualifying women from the State of property rights? Article 370 itself is
gender neutral, but the definition of Permanent Residents in the State
Constitution — based on the notifications issued in April 1927 and June 1932
during the Maharajah’s rule — was thought to be discriminatory.
The 1927
notification included an explanatory note which said: “The wife or a widow of
the State Subject … shall acquire the status of her husband as State Subject of
the same Class as her Husband, so long as she resides in the State and does not
leave the State for permanent residence outside the State.”
This was
widely interpreted as suggesting also that a woman from the State who marries
outside the State would lose her status as a State subject.
However,
in a landmark judgement, in October 2002, the full bench of J&K High Court,
with one judge dissenting, held that the daughter of a permanent resident of
the State will not lose her permanent resident status on marrying a person who
is not a permanent resident, and will enjoy all rights, including property
rights.
has Article 370 strengthened separatist
tendencies in J&K?
Article 370 was and is about providing space,
in matters of governance, to the people of a State who felt deeply vulnerable
about their identity and insecure about the future. It was about empowering
people, making people feel that they belong, and about increasing the
accountability of public institutions and services. Article 370 is synonymous
with decentralisation and devolution of power, phrases that have been on the
charter of virtually every political party in India. There is no contradiction
between wanting J&K to be part of the national mainstream and the State’s
desire for self-governance as envisioned in the Article.
