Why Articles 370 And 35A Should Be Scrapped

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In the backdrop of the Pulwama Attack, once again the justified rage of the public turns to the “special” status on the state of Jammu and Kashmir. Before preceding to the crux of why this timid stop-gap has been deleterious for the country, it must be pointed out that radicalisation of Kashmiris is a disparate issue, best dealt with through the Vajpayee doctrine of “Insaniyat”, combined with no countenance of separatists.

However, the provision empowering the state with ‘special’ status has always been the elephant in the room. Jammu & Kashmir has, along with its sensitive topography, appears like a foreign policy issue, instead of a domestic one due to its status in our Constitution. There exists an unnecessary chasm between citizens of Kashmir and the rest of India. It borders on being trite, but nonetheless, sadly, must be reiterated – Article 370 and Article 35-A must go.

Distorted Discourse

The discussion in public forums has been misguided on this issue. Always being centered around a Hindu-Muslim matter or about the perceived autonomy of Kashmir. It is clear whilst comprehensively analyzing the issue of Article 370 and 35-A, that it is a case of unequal federalism gone awry. At its core is a human rights issue, which I shall come to later in the article. Article 370 details the relationship Kashmir will share with the rest of the country; Article 35-A grants permanent residents of Kashmir some special rights. There are also people with the argument that special provision should never have been given. A fallacy!

From the get-go, the Constitutional relationship of India with this state has been adversely lopsided. India has already ensured the states with the Mizos and the Naga population with constitutional safeguards(special provisions) such as protecting their social practices (Article 371-A and G), when they were persuaded to join the Indian Union, Several hilly-states such as Uttarakhand enjoy special financial assistance and the recent demand of Andhra Pradesh, after being bifurcated, to be granted special status was also raised, while being aware of the benefits the state would accrue.

To quote George Orwell – “All animals are equal, but some animals are more equal than others“. Replace animals with states and you understand the Indian context. India has an assortment of examples where it has performed positive discrimination for groups (Articles 15 and 16) and as mentioned – states.

The Unlawful Oppression

The problem, to put it succinctly, is that with Kashmir the positive discrimination has tended to be insidious. Article 35-A gives the right to buy property or land, get a job under the state Government of J&K, get admission to public colleges there or receive aid such as scholarship, vote or contest in Assembly elections of J&K only to people defined as “permanent residents“. Who decides permanent residents? Article 6 of the Jammu and Kashmir Constitution. People who are not permanent residents cannot get these rights, despite the fact that not giving them these rights tramples over their Fundamental Rights. A person who settled in Kashmir but not long enough to be a ”permanent resident” under the law faces a lower standard of living than his permanent counterparts in the same state. Citizens of India are discriminated against, minorities in Kashmir suffer. The whole country experiences an indelible fissure.

Instead of taking a legislative route, Article 35-A was passed through a Presidential order. It subverted the law-making powers of the legislature, granted by the Constitution. The President, as affirmed in the Puranlal Lakhanpal vs The President of India (1961) case cogently by the Supreme Court, cannot singlehandedly declare a law. They cannot amend the Constitution. Even an ordinance, which this was most decidedly not, has to be passed by Parliament. The order, passed in 1954 by the President, was due to fulfilling Article 370 (1) (d). Article 370 itself was supposed to be temporary; the first word of the Article is temporary. It still sits under Part XXI which is titled “Temporary, Transitional and Special Provisions“.

To recapitulate – an unlawful order was passed to subvert the Fundamental Rights of non-permanent residents based on an Article which was supposed to be temporary. Famously, Dr. Ambedkar declared that he would never, as Law Minister, consent to Article 370. He said“You wish India should protect your borders, she should build roads in your area, she should supply you foodgrains, and Kashmir should get equal status as India. But the Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal, would be a treacherous thing against the interests of India and I, as the Law Minister of India, will never do it“. Presciently, Sardar Vallabhai Patel, although he had to reluctantly convince the Congress party to accept it, was vehemently against giving any inch of Kashmir and initially advocated not to go to the UN. The handling of the entire issue is a classic historical folly.

Unlawful oppression has captured the state of Kashmir. With Article 370 being an interim arrangement, the whole framework between the Union and Kashmir was fraught with difficulties. The manner has always been looked at from the precise perspective of the Valley which leaves out the hardship of the regions of Ladakh and Jammu where Article 35-A, also being applicable, tears away the rights of non-permanent residents.

The state of J&K itself has done phenomenally well on its indicators as an Indian state should. It has grown by almost 7% last year, ensured a greater number of schools per household and even health and connectivity outcomes have outperformed expectations. A big reason is that it is also heavily subsidized by the Centre. A study showed that it has received, from 2000-2016, 10% of all Central funds despite having 1% of the population. It is an economic powerhouse waiting to be unleashed. Article 370, very obviously, however, is still an impediment in restricting private or global investment into the state.

If Indians (non-Kashmiris) cannot invest in land or property, how can manufacturing firms or multinational corporations? These might have provided jobs to the young people of Kashmir. It also stops public colleges such as medical colleges from adequately fulfilling vacancies. Professors cannot be hired from outside the state except in extremely low quotas. These and many more ensure that unemployment increases which make the advent of radicalization, more viable. Hence, Article 370, the pernicious basis of Article 35-A must go.

No Mans Land

Depressingly, the only way to repeal Article 370 would be by the President through a notification but not without the concurrence of the Constituent Assembly of Jammu and Kashmir. The Constituent Assembly, of course, disbanded in 1956 and almost all members are presumably dead. Before dissolution, the Constituent Assembly neither recommended abolishing Article 370 neither, did they advocate for it to be permanent. Thus, leaving Jammu and Kashmir in a state of limbo. Many, including the Supreme Court on many occasions, have suggested that this transforms Article 370 as permanent. Be that as it may.

All parties, including the PDP and the NC, must form a consensus to deal with Article 35-A first. This extra-constitutional executive order is disastrous and easily can be said to violative of the basic structure of the Constitution; a petition is pending in the Supreme Court for just that. I hope the Court quashes it. If not, the law-makers must recognize that their authority was de-legitimized the day Article 35-A passed without the usual deliberation and discussion by the people’s representatives.

As for Article 370, 45 Presidential Orders have been used to extend components of India’s Constitution into J&K. Almost all Union List subjects are applicable, most of the Concurrent List ones, a handful of Schedules and 260 of 395 Articles. Taking a cue from the earlier argument; one might argue that since there is no Constituent Assembly and since Article 370, via orders, has been modified so many times, it can be expelled from the Constitution as well without taking ‘concurrence’ of the now-defunct Constituent Assembly. The Constitution has been recognised as a living document, after all.

There is no possibility of delimiting the constituencies like the rest of India and still, a lot of institutions cannot adjudicate inside Jammu and Kashmir. Changing circumstances, I hope will be seen when the Courts decide on the validity of 35-A or the status, permanent or otherwise of Article 370. Parliament could also, under its powers to amend the Constitution (Article 368) repeal 370, however, it would then open itself up to judicial review. The courts might rule, as it has many times, that Article 370 is now permanent. One could fastidiously proclaim, among other legalisms, that the order was passed before the basic structure doctrine was developed. Which is exactly why, it is the duty of Parliament, not the Supreme Court to urgently correct this malignant tumor. Unfortunately, political will seems to be faltering for that.

The crucial point is this: either symbolically, economically or culturally, diversity, lacking a minimum level of unity is meaningless, let alone integrity. Fortuitously for our country, almost all laws which were supposed to be temporary in other matters were ended to make permanent arrangements. J&K, more than 50 years later, is still teetering on the edge to leap towards a true Indian state, rather than one for name sake only. I mentioned that the issue is a human rights one, crucially because Kashmir is the exclusive place to discriminate against citizens within India so brazenly.

Sure other states exclude or restrict buying land for instance, but to deny or restrict to others, a list of rights based on how long your ancestors were settled in the state predicates on a position of being another nation. Countries deal with other countries in this manner, not provinces within a country. Yes, sub-nationalism rears its head in India with the Naga secessionist movement, Dravid Nadu or the Khalistani movement, but the level prevalent in Kashmir is taking that to its limit. Instead of having its own flag, it should have India’s. Instead of having Kashmiri citizenship, there must be single Indian citizenship and instead of the Constitution of Jammu and Kashmir, the one we gave unto ourselves should apply, warts and all, to our Kashmiri brothers and sisters.

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