ARTICLE-370 THANKS TO NEHRU
Article-370 on J&K is thanks to Nehru, who brought it about at the instance of Sheikh Abdullah, despite opposition by many, including Dr BR Ambedkar and Sardar Patel.
Gopalaswami Aiyangar, appointed by Nehru, moved Article 306A— which later became Article 370 in the Indian Constitution—in the Constituent Assembly on 17 October 1949 guaranteeing special status to J&K. This was at the instance of Sheikh Abdullah, and with the concurrence of Nehru. Although many in the Constituent Assembly were not in favour of it, they consented, keeping in view Nehru’s wish, who was then the main person steering the J&K policy. Those not in favour included Ambedkar, Maulana Hasrat Mohani, Sardar Patel, and many others. India, which was a Dominion, became a Republic on 26 January 1950, and Article 370 came into force for J&K. Why was special provision made for J&K? Why Article 370? Let’s examine.
J&K had nominated four representatives to the Indian Constituent Assembly in June 1949—the nominations were made by Yuvraj Karan Singh on the advice of the Council of Ministers of the State’s Interim Government led by Sheikh Abdullah. The J&K representatives in the Indian Constituent Assembly chose to act differently from the other Princely States —at the behest of Sheikh Abdullah. While the other Princely States were agreeable to a common Constitution, J&K representatives stated they were not inclined to accept the future Constitution of India, and they would rather have their own separate State Constitution. This, they insisted, was allowed as per clause 7 of the Instrument of Accession. It is another matter that the representatives of the other States could also have taken the same position as J&K, for they too had signed the Instrument of Accession, which had the same content and format as that signed for J&K by the Maharaja. The J&K representatives also stated that till their new State Constitution was framed, they would be governed by the old Constitution Act of 1939.
It was to accommodate this that a special provision had to be made for J&K in the Constitution of India. That provision is Article 370. Of course, Article 370, labelled “Temporary provisions with respect to the State of Jammu and Kashmir” was conceived as a temporary arrangement, with hopes of a full integration in time to come. J&K State Constitution came into effect on 26 January 1957, comprising 158 Sections, of which Section 3 says, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.”
But why were such special provisions allowed. They could have been blocked by the Constituent Assembly? Interestingly, poor Maharaja Hari Singh was already out of the picture. Special provisions or no special provisions—he stood neither to gain nor to lose. It was Abdullah, who after getting rid of the Maharaja, was trying to secure and upgrade his own status.
Nehru had brought in Gopalaswami Ayyangar as a Minister without Portfolio to look after the J&K affairs. Before his visit to Europe, Nehru had finalised the draft provisions relating to J&K with Sheikh Abdullah, which later became Article 370. He had entrusted to Gopalaswami Ayyangar the task of piloting these provisions through the Constituent Assembly. Ayyangar did the needful. His presentation provoked angry protests from all sides. Most were opposed to any discriminatory treatment for J&K. The proposal of Article 370 was torn to pieces by the Constituent Assembly. Ayyangar was the lone defender, and Maulana Azad was not able to effectively support him. In the debate, Maulana Hasrat Mohani of UP stated that while he was not opposed to all the concessions that were being granted to his friend Sheikh Abdullah, why make such discrimination; if all those concessions were to be granted to the Kashmir, why not to the Baroda ruler too.
Dr Ambedkar was firmly opposed to it. Nehru had sent Abdullah to Dr Ambedkar to explain to him the position and to draft an appropriate Article for the Constitution. Ambedkar had remarked:
“Mr Abdullah, you want that India should defend Kashmir, India should develop Kashmir and Kashmiris should have equal rights as the citizens of India, but you don’t want India and any citizen of India to have any rights in Kashmir. I am the Law minister of India. I cannot betray the interest of my country.”
Upon the refusal of Dr Ambedkar to draft Article-370, it was left to Gopalaswami Ayyangar to draft the same. When the issue came up for discussion in the Constituent Assembly, Dr Ambedkar was so disgusted that he did not take part in it.
Nehru, who was then abroad, rang up Patel and requested him to get the Article 370 through, and it was for that reason alone that Patel relented, as Sardar did not wish to embarrass Nehru in his absence. But Sardar commented, “Jawaharlal royega [Nehru will rue this].”
Strangely, Nehru made a statement on Kashmir in 1952, when Sardar Patel was no more, “Sardar Patel was all the time dealing with these matters.” Wrote V Shankar:
“When I was working as his [Gopalaswami Ayyangar] joint secretary the self-same Article [370] came in for criticism in the Lok Sabha. In defence, Pandit Nehru took the stand that the Article was dealt with by Sardar in his absence and he was not responsible for it. I met Gopalaswami the same day evening as he was walking on the lawn of his residence. I questioned the bonafides of Pandit Nehru’s stand. Gopalaswami’s reaction was one of anger and he said, ‘It is an ill return to the Sardar for the magnanimity he had shown in accepting Panditji’s point of view against his better judgment.’ He added, ‘I have told Jawaharlal this already.’”
ADVERSE CONSEQUENCES OF ARTICLE-370
There are many adverse consequences of Article 370. Some of them are: (1)Regionalism, parochialism and secessionism. (2)Denial of fundamental right to an Indian citizen to settle in J&K permanently. (3)Denial of fundamental right to an Indian citizen to purchase property in J&K. (4)Deprivation of right to vote to an Indian citizen, as he or she cannot become a citizen of J&K. (5)Denial of jobs—an Indian citizen, who is not also a citizen of J&K, cannot get a job in J&K. (6)A woman, who is a permanent citizen of the State, loses her property, including ancestral property, if she gets married to a man who is not a citizen of the State. Also, she can’t get a job in the State, nor can she get admission in colleges getting financial aid from the State or the Union Government. (7)Hindu immigrants who were ousted from their ancestral homes in West Pakistan at the time of partition and settled in J&K have not yet been given citizenship. This includes their children and grand-children.
Of course, the biggest negative is that it has come in the way of full integration of the State, which has gravely harmed both the people of J&K and India. Article 370 helps protect the corrupt J&K politicians from the more stringent central provisions, and keeps them out of reach of the CAG.
To the general public, it does not benefit. It is actually counter-productive. If J&K were like any other state in India, there would have been much more private investment in it, leading to prosperity.
Jagmohan, who had also been Governor of J&K, writes in his book, ‘My Frozen Turbulence in Kashmir’:
“Article 370 is nothing but a feeding ground for the parasites at the heart of paradise. It skins the poor. It deceives them with its mirage. It lines the pockets of the ‘power elites’. It fans the ego of the new ‘sultans’. In essence, it creates a land without justice…It suffocates the very idea of India and fogs the vision of a great social and cultural crucible from Kashmir to Kanyakumari…
“Over the years, Article 370 has become an instrument of exploitation at the hands of the ruling political elites and other vested interests in bureaucracy, business, the judiciary and bar…It breeds separatist forces which in turn sustain and strengthen Article 370. Apart from politicians, the richer classes have found it convenient to amass wealth and not allow healthy financial legislation to come to the State. The provisions of the Wealth Tax and other beneficial laws of the Union have not been allowed to operate in the State under the cover of Article 370…”
Even if Article 370 had to be introduced for whatever reason, it could have been made applicable only to the Valley, and Jammu and Ladakh could have been kept out through certain special provisions, or by spinning them off as separate mini-states or union territories. That would at least have ensured Jammu and Ladakh developed unhindered by the needless restrictions that were the by-products of Article 370. Why make Jammu and Ladakh suffer for the politics of the Valley? There are enough statistics to show that the people of Jammu and Ladakh have been short-changed and benefits have been largely cornered for the Valley.
The Article 370 is labelled “Temporary provisions with respect to the State of Jammu and Kashmir”, and is included in Chapter 21 of the Constitution dealing with “Temporary, Transitional & Special” provisions. High time this temporary provision was done away with. Dr Subramanian Swamy tweeted on 20 June 2018: “Anyone who says Art 370 abolition needs Parliament approval is either ignorant of the Constitution or an illiterate. It just needs a Presidential Notification of a Cabinet Resolution.”
