May 29, 2002


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Arvind Lavakare

The indeterminate life of Article 370, I

What is the time-span of the word 'temporary?' Is it one week, one month, one year or one decade? Judging by the indifference of the National Commission to Review the Working of the Constitution towards 'Temporary, Transitional and Special Provisions' contained in Part XXI of our Constitution, even half a century would seem to justify the label of 'temporary.' Consequently, NCRWC's recommendations to the government early last month didn't contain anything that would disturb the status of Article 370 which -- applicable exclusively to Jammu and Kashmir State -- has remained a "Temporary" provision right from the time our Constitution became fully effective from January 26, 1950.

This indeterminate life of 'Temporary' Article 370 is in sharp contrast to the 'Temporary' power given to Parliament by Article 369. The latter permitted Parliament to make laws on certain subjects that were otherwise outside its jurisdiction, but this legislative power was to last only for the 'temporary' period specified by the Constitution framers as being of 'five years from the commencement of this Constitution.' However, the 'Temporary' Article 370 -- meant for J&K alone -- was not given such a straight jacket of time. That conspicuous inconsistency between two 'temporary' provisions of the same Constitution seems to have been bypassed by NCRWC's wise men.

Now the fundamental reason for an exclusive constitutional Article for J&K state was the Schedule annexed to the Instrument of Accession signed by that state's Maharaja on October 26, 1947. That Schedule specifically provided that the Dominion of India, to which the state had acceded, would be empowered to make laws for J&K only on matters pertaining to defence, external affairs and communications. And clause 7 of the Instrument of Accession itself did not bind the J&K state to accept any future Constitution of India.

The result of that clause 7 was the separate constitution of J&K enacted on November 17, 1956 through an elected State Constituent Assembly. And the outcome of the above mentioned Schedule was Article 370 which, in essence, lays down that
i. Laws of the Indian Parliament relating to matters of defence, external affairs and communications shall apply to J&K state only after consultation with the government of that state
ii. Parliamentary laws on subjects other than those mentioned in the Schedule shall apply to J&K only with the concurrence of the government of that state, and
iii. The provisions of the Constitution of India shall apply to J&K 'subject to such exceptions and modifications as the President (of India) may by order specify.'

The result of the above hard-core of Article 370 has been two-fold. One is that several laws of the Indian Parliament have not been made applicable to J&K although the latter's constitution proclaims through Section 3 that the state 'is and shall be an integral part of the Union of India' -- a proclamation that, moreover, is beyond constitutional amendment by the state legislature and one that India stresses, but not often enough, in its dialogue with Pakistan as well as the rest of the world.

As a consequence of Article 370, some important laws of India that are not in force in J&K state are the Indian Penal Code, 1860, the Urban Land (Ceiling and Regulation) Act, 1976, the Prevention of Corruption Act, 1988 and the Religious Institutions (Prevention of Misuse) Act, 1988. This blatant discrimination between J&K and all other states is patently absurd. Whatever the original raison d'etre for such pampered treatment to J&K, it is a colossal failure of the Indian government not to have persuaded J&K state to fall in line over a 'temporary' arrangement; it also represents a cussed obstinacy of the J&K authorities in insisting on preferential treatment even after a 'temporary' period of 52 years. Can you imagine any federal law of the USA not being applicable to any of its 50 states? And remember, several states in the USA also have their own constitution, separate from the American constitution.

On the Constitution side, the position is equally absurd, obnoxious, with regard to J&K. Space constraints do not permit elaboration of the several constitutional provisions which accord J&K a separate, preferential treatment in comparison with the other states of India. Suffice it to say that the sum of these exceptional provisions has led to the conclusion that 'the state (of J&K) has a much greater measure of autonomy and power than enjoyed by the other states.' (Indian Constitutional Law by M P Jain, fourth edition, reprint 1994, Wadhwa & Company, Nagpur, pg. 435).

And yet, we now have Omar Abdullah demanding pre-1953 autonomy for J&K. It is truly 'like father like son;' or, really, like grandfather like father like son. J&K's craze for an ineluctable status in India just does not go, whatever its hopeless economic situation caused by hopeless misgovernance and whatever the severity of grievances of Jammu and Ladakh districts against the overpowering dominance of politicians ruling the Kashmir valley. And remember, Jammu and Ladakh are large districts unlike 'Kashmir' which is neither a town nor a district.

Nevertheless, at least one discriminatory constitutional provision for J&K needs to be juxtaposed with the discrimination of Article 370.

Under Section 6 of the J&K constitution, special rights and privileges are permitted to be granted by law to a category called 'Permanent Residents' -- a category that's been constitutionally defined in such a manner that Indian citizens from other states of India and thousands in J&K itself just cannot fulfill that definition. One such privilege allowed by J&K legislation is that of permitting only 'Permanent Residents' to acquire immovable property in the state.

As a result, no private sector industrialist worth the name from outside J&K has set up shop there. There's that case in 1985 when a hue and cry was raised after 32 members of the All-India Services formed a cooperative housing society and got it registered. One accusation was that Article 370 had been eroded. Such indeed was the bitter opposition in the state assembly and elsewhere that the proposal was ultimately dropped -- the elite IAS, IPS and IFS cadres of the Government of India had been denied residential plots even as members of a cooperative society.

Further, there are literally hundreds and hundreds of those who have settled down in J&K for years together but are nevertheless ineligible to vote in the election to the state assembly or local bodies and are also debarred from securing employment in certain sectors -- all because they are not 'Permanent Residents' as defined by the state constitution.

Other such examples of how Article 370 'suffocates the very idea of India and fogs the very vision of a great social and cultural crucible from Kashmir to Kanyakumari' have been cited by Jagmohan in his book My Frozen Turbulence In Kashmir (Allied Publishers Limited, second updated edition, April 1992).

Jagmohan's book, be it noted, was based on the experience of his two tenures as the governor of J&K while being a civil servant and before he became part of the BJP fraternity. However, it is with the above perspective of his that the BJP has been demanding the abrogation of Article 370. But the Congress and all other self-styled saviours of the nation's minorities have interpreted that demand as being anti-Muslim in the Muslim-majority state; these great pretenders of 'secularism' have never cared to explain how, in the name of Christ or Marx or both, that community stands to lose without the alleged protection of Article 370.

The controversy has been long and belligerent enough to have warranted a serious study of facts and figures by NCRWC. If Jagmohan's analysis was found convincing, the NCRWC should have had the courage to recommend the abrogation of Article 370. And if they had believed that Article 370 had its indelible place in our constitutional framework, the least they could have done was to give our constitution a cosmetic face-lift by converting that Article's 'Temporary' status into one of a 'Special Provision' as has been given to the state of Nagaland (Article 371A), the state of Assam (Article 371B), the state of Manipur (Article 371C), the state of Sikkim (Article 371F), and the state of Arunachal Pradesh (Article 371H).

Instead, NCRWC sat on the fence of silence. It shut out Article 370 altogether, in dereliction of its duty of studying how the ideas of our founding fathers had worked, or not worked, on the ground over as much as half a century of time, and not over a 'temporary' period of one week, one month, one year or even one decade.

Along with its failure to recommend a landmark step forward on the definition of 'secular' in our Constitution's Preamble and on the imperative need to enact a uniform civil code as mandated by Article 44, the NCRWC's inaction on Article 370 represents a hat-trick of victims it claimed during its two-year stint at the crease.

The definition of 'secular'
Where's the Uniform Civil Code?
The indeterminate life of Article 370, II

Arvind Lavakare

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