Here's another debate: is it time to revisit Article 370?

History and politics of a legal provision that also affects the lives of millions

Aasha Khosa | December 22, 2014




Tsering Angmo had done well for herself in life. Becoming a senior bureaucrat in the government of India was no small achievement for this woman born in a modest Ladakhi family of Leh in the 1950s. Angmo had started as a political activist least realising that her biggest battle will be against the law of her own land.

She had fallen in love with an army officer from Uttrakhand, got married and had three children. Eventually, cultural differences cropped up, and they divorced. Angmo returned home with her children and decided to build her own house. But after her marriage to a non-Jammu and Kashmir (J&K) citizen, she was no longer a citizen of her own state. Under the special provisions conferred on J&K, only the citizens of the state (called ‘permanent residents’) can own property there.

Angmo soon joined scores of women who had married non-state residents to fight the once well meaning but now skewed laws to secure their jobs, land and heritance. (Interestingly, the men are exempt from this discrimination, and even a foreigner wife of a J&K man is entitled to residentship – provided she becomes an Indian citizen first.)

On the political front, the privileged class of the state uses Article 370 of the Indian constitution to secure their interests. Sample this: during the Emergency promulgated by the Indira Gandhi regime in 1975, the tenure of parliament and state legislatures had been extended to six years across India. J&K, which is exempted from national laws, quickly adopted this one. However, after the emergency the rest of the legislatures reverted to the five-year tenure, J&K’s political class conveniently kept mum. Today, the state legislators enjoy a six-year term as against five years for other lawmakers of the country.

On the other hand, about two lakh Indian nationals who migrated from West Pakistan, in the wake of partition and the 1962 Indo-Pak war, to Jammu continue to face discrimination. They are treated as non-locals for jobs, higher studies and have no civic rights. These people, mostly landless labourers living in abject poverty, are eligible to vote in Lok Sabha elections but not in state assembly polls.

These are some of the implications of Article 370 that allows J&K to have its own constitution, flag, and the privilege of not coming under the Acts passed by parliament, except on matters of defence, foreign affairs, finance and communications.

This special provision in the constitution was laid down amidst controversy. In fact, the chairman of the constitution drafting committee, BR Ambedkar, had refused to draft such a provision considering its long-term consequences. Most of the Congress working committee members and even home minister Sardar Patel were wary of this. However, it was prime minister Jawaharlal Nehru’s personal wish and promise to a friend that saw this contentious clause enter the statute. Many historians say that it was Nehru’s gift to Kashmiri leader Sheikh Mohammad Abdullah in lieu of his role in bringing Kashmir into the Indian domain. It is in this reference that the BJP has often called Nehru a Kashmiri romanticist who kept his personal equations above the interests of his nation on Kashmir.

A magnanimous and liberal Nehru had waged a no-holds-barred battle with his own people in order to assure his friend that the distinct culture and identity of his land and people will be protected in India under this special provision. Kashmiris had traditionally nurtured fears that their land would be usurped by the rich people from the north Indian plains, and their women would be exploited by tourists to gain citizenship. So, the erstwhile maharajas of Kashmir had proscribed outsiders settling down in the state and ordered that any woman marrying an outsider would stand to lose her citizenship. These laws, seemingly aimed to protect interests of its subjects, were retained in the democratic J&K through Article 370.

However, Nehru did not realise that this protectionism of a weaker sibling state would soon become a major challenge for the newly independent India in maintaining its territorial integrity.

Soon Nehru’s friend Sheikh Abdullah had started showing signs of weariness with the Indian system. He started making discordant notes about the state’s special status. Relations between him and Nehru’s government soured and suspicions grew resulting in his arrest in 1953. Abdullah was accused of conspiring with external forces for a plan to break Kashmir free of India. He, however, had already acquired an iconic status by then, and his arrest propelled sweeping protests and discontent across Kashmir.

The new ruler, Bakshi Ghulam Mohammad, was closer to New Delhi and he worked on diluting the special powers of the state in larger national interest. During his tenure, several laws were passed by the state legislature to bring J&K closer to the mainland.

Had such changes not been made during 1954-75, J&K would have provisions like this:

  • The head of the state would have been called ‘sadr-e-riyasat’ (president of the state) and the head of the government would have been wazir-e-azam (prime minister).
  • The supreme court of India would not have jurisdiction over J&K.
  • In case of a political deadlock with constitutional breakdown, J&K would not be brought under the president’s rule.
  • The state government would have unbridled powers to use and misuse the funds without the comptroller and auditor general’s (CAG) authority to oversee.
  • The state would be ruled by
  • archaic laws on labour unions and social security. 
  • It would have no IAS or IPS officer posted there.

Having seen how insurgency wreaked havoc and subvert the system in the border state, one shudders to think what would have happened if Bakshi had not helped bring Kashmir closer to New Delhi. No wonder Bakshi, who was an epitome of development and progressive thinking, remains a traitor for pro-Pakistani elements in Kashmir today.

Now, the rise of BJP has, once again, triggered paranoia in Kashmir in the ongoing poll season. Kashmiri leaders, from chief minister Omar Abdullah, who is on a sticky wicket, to Congress’s Ghulam Nabi Azad, leaders are campaigning against “the BJP’s hidden agenda of abrogating Article 370”. Many believe that the high voter turnout in Kashmir was due to the paranoia created by mainstream parties of the region against the BJP on Article 370.

According to separatist leader Mirwaiz Moulvi Umer Farooq, the BJP’s ambitious plans of bagging 44-plus seats in the 87-member assembly has led to a higher turnover. He openly said that he had not given a call to boycott elections since the BJP would have stood to gain in that case. “We fear that the BJP would try to abrogate Article 370 and change the Muslim majority character of the state,” he told Governance Now.

Policy analysts like Bharat Karnad of the Centre for Policy Research advocate abrogation of Article 370 as one of the strategies to address the discontent and political turmoil in the border state. He says, “Courtesy Article 370, the belief that Kashmir is not like other states and is not a part of the Indian whole has grown apace with rising discontent, convincing the separatists about the righteousness of their cause. The special status of the state has prevented its social and economic integration [with the rest of the country], with Indians from other states barred from legally purchasing property, establishing businesses, settling down there and obtaining voting rights. Cocooned in this way, many Kashmiris have a heightened sense of grievance against the Indian state, mistakenly believing they are sovereign. The sooner they are disabused of this foolish notion, the better [it will be] for everybody and for peace in the region.”

However, the BJP is in no hurry to take the bull by the horn as the party is working on finding a foothold in India’s only Muslim-majority state. This is why prime minister Narendra Modi choose to skip this otherwise core issue of the saffron party at his well-attended public rally in Srinagar early December. All that the party is ready to talk about is the need for a debate. “There is no harm in debating Article 370 to evaluate if it has benefitted us,” said Hina Bhat, BJP’s high-profile leader and candidate in Kashmir. 

Abrogating Article 370 is rather easy as the provision itself has a cannibalistic clause. It can be abolished by a mere presidential decree but the move would have to be endorsed by the state legislature. This may become easy if the BJP gets a majority. But will the party be ready to face the public unrest it could trigger in the Muslim-majority regions of the state?

The story appears in December 16-31, 2014, issue

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