07/08/2019 7:49 AM IST | Updated 07/08/2019 7:49 AM IST

Don’t Abrogate Article 370, Extend It To Other Parts Of India

Article 370 isn’t a threat to the country’s unity, but instead, could form a model for greater federalism and democratic decentralisation.

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The Modi government’s decision to revoke Jammu and Kashmir’s special status, once enshrined in Article 370 in the Indian Constitution, is the fulfillment of an important part of the Bharatiya Janata Party (BJP) and Rashtriya Swayamsevak Sangh’s vision of a homogeneous nation-state both symbolically and concretely.

The other core parts of their agenda include the Uniform Civil Code (of which the recently passed Triple Talaq legislation is a crucial piece) and, of course, a Ram Temple at the site of the demolished Babri Mosque in Ayodhya

Yet, of these three, the BJP, and its predecessor the Bharatiya Jana Sangh, always saw Article 370 and J&K’s autonomous status as a threat to India’s unity and a barrier to the full integration of J&K with India. The Congress’ position was not very different.  The Congress leaders who negotiated Article 370 into the Constitution also considered it an exceptional and temporary measure which would fade away with time.  

This Indian treatment of Article 370 as a transient measure and the Kashmiri understanding of it as a permanent settlement lie at the crux of the Kashmir problem in India.  

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In the years since Article 370 was first introduced, the failure of the political imagination of our leaders and conscientious Indians to defend and push for the implementation of Article 370 in its original letter and spirit has led to the permanent state of crisis in Kashmir today.  

Although it seems like a lost cause now, I argue that Article 370 should be considered an innovative constitutional measure arrived under exceptional circumstances but with permanent possibilities, rather than as a threat to the unity and integrity of India.

Implemented correctly, Article 370 could have been the model solution to many of the regional grievances that appeared in India right after independence.

The Historical Context

Jammu & Kashmir was the largest of over 500 indirectly governed Princely or Native states under British Raj.  In August 1947, these states had the options of either joining the new nation-states of Pakistan or India or choosing independence.  Maharaja Hari Singh, the then ruler of J&K, preferred independence under hereditary rule.  

Scholars such as Navnita Behera, Sumantra Bose and Cabeiri Robinson have noted that the state’s political parties were agitating for democratic rule and self-determination rights.

The All Jammu and Kashmir National Conference (NC), led by Sheikh Abdullah and allied with the Indian National Congress at the national level, had adopted in 1944 a manifesto for Naya Kashmir (New Kashmir) which called for socialist land reforms and popular sovereignty.  A meeting organised by Kashmir Kisan Mazdoor Party in May 1946 and attended by representatives of other state parties called for a Free Kashmir and people’s rule.  

The Instrument of Accession, which gave India powers over defence, foreign affairs and communications, was the negotiated price of India’s assistance

Political leaders in Poonch declared the overthrow of the Maharaja’s government in August 1947 and in October that year, announced the establishment of the Provisional Revolutionary Government of Azad Kashmir. Meanwhile Pakistan-supported militia of Pathans entered J&K at Muzaffarabad and moved towards Srinagar, prompting the Maharaja to seek help from the Indian government.

The Instrument of Accession, which gave India powers over defence, foreign affairs and communications, was the negotiated price of India’s assistance. The Maharaja’s emergency interim government with Sheikh Abdullah as the Prime Minister retained all residual powers. 

Pakistan rejected Maharaja’s accession and sent in regular troops, leading to a war between India and Pakistan over Kashmir which ended with a United Nations-negotiated ceasefire in January 1949.  

From May 1949 to October 1949, Sheikh Abdullah’s National Conference negotiated with the Indian government on the substance of Article 370. The article was one of the last provisions added to the Indian Constitution and due to its negotiated nature, it was one of the only articles in the Constitution which did not go through lengthy debate in the Constituent Assembly.  

Article 370 was included in Part XXI of the Indian constitution titled “Temporary and Transitional Provisions” (the 13th Amendment Act 1962 amended the title as the “Temporary, Transitional, and Special Provisions”).  

As legal expert A.G. Noorani notes in his book Article 370: A Constitutional History of Jammu and Kashmir,  370 allowed J&K to have its own constituent assembly and a constitution.  Second, till the framing of the Constitution, the central government would have power only over defence, foreign affairs, and communications in J&K.  Third, provisions of the Indian Constitution could be extended to J&K through a presidential order only with the concurrence of the state government and to be ratified by the constituent assembly once convened.  Fourth, once the constituent assembly was formed, the extension of provisions of Indian Constitution would require the concurrence of the Assembly. Finally, this article could not be amended or abrogated without the recommendation of the Constituent Assembly of the State.  

Noorani describes Article 370 as a “solemn compact” between representatives of J&K in the Constituent Assembly and representatives from other parts of India. 

Afterlife: Misuse and Erosion

Right after the proclamation of the Indian Constitution in January 1950, the central government through a presidential order and with state government concurrence, extended certain provisions of the Indian Constitution to J&K.  The Constituent Assembly of J&K was convened in October 1951. This Assembly functioned between 1951 and 1956 and was dissolved thereafter. But once Sheikh Abdullah was arrested and his government illegally dismissed in 1953, the Constituent Assembly lost much of its legitimacy.  

The afterlife of Article 370 is thus a story of its misuse,  and of the steady erosion of the autonomy of J&K and its special relationship with India. The Modi government’s action is a continuation of this trend.

More importantly, the Presidential Orders continued to extend the provisions of Indian Constitution into Kashmir even after 1956.  Noorani says 260 of the 395 articles of the Indian constitution and 94 of the 97 entries in the Union list were pushed through between 1955 and 1994. It is worth noting that the Indian state originally had control over only 3 subjects.

The afterlife of Article 370 is thus a story of its misuse,  and of the steady erosion of the autonomy of J&K and its special relationship with India. The Modi government’s action is a continuation of this trend. 

Why Article 370 Is Important

In a country which remains locked in the fears and exigencies of partition, what could be the grounds for supporting Article 370?  I lay out two possible positions.   

First, we need to recognise that different groups entered into the Indian Union on certain conditions. These terms were often debated inside and outside the Constituent Assembly and formed part of the Indian constitution.  

For instance, Dalits and Adivasis entered the Union with the promise of abolition of untouchability, reserved seats in legislatures and government employment, statutory commissions to protect their rights and so on.  Religious minorities entered the Union knowing that freedom of religion will be a fundamental right along with the right to protect and preserve their religious identity and to manage the affairs of their community.  

I would argue that Article 370 should be seen through the prism of possibility, rather than as a threat to the unity and integrity of India.  Rather than abrogating Article 370, a case can be made for its extension to other parts of India.

Likewise, the people of J&K entered the Union with Article 370 and the promise of regional autonomy.  None of these provisions should be abrogated without the express free consent of the groups involved. Such abrogation will be a violation of the compact.  This is not to suggest that the terms agreed in 1950 are sacrosanct and forever unalterable. They can be altered, but only with the consent of those for whom those provisions were made.  

Second, I would argue that Article 370 should be seen through the prism of possibility, rather than as a threat to the unity and integrity of India.  Rather than abrogating Article 370, a case can be made for its extension to other parts of India.  

In fact, if we look at Part 21 of the Indian Constitution we realise that Article 370 has already acted as a model through Article 371A, introduced in 1962 to make special provisions for Nagaland. The expansion of the Sixth Schedule of the Indian Constitution is another instance of principles of regional autonomy, similar to those in Article 370, being applied in North-Eastern states. Article 370 is the provision India needed for greater federalism and democratic decentralisation. To the rest of the world, it could have been the model for nurturing diversity within a democratic framework. 

The liberatory possibilities embedded in Article 370 suggest that the ramifications of the Modi government’s decisions may be felt far beyond Kashmir. Let us be clear about just what happened on August 5 2019: the government leveraged its brute majority to abrogate a constitutional provision which formed the very basis of a people’s participation in the Union. That this provision formed the basis for similar provisions to protect social groups like Dalits, Adivasis and religious minorities, suggests that some of India’s most vulnerable citizens and communities could be next in line. 

Jaby Mathew is a Postdoctoral Research Scholar based in Toronto. He is currently writing a book on the history of ideas of political representation in modern India.