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Understanding the Article 370
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Prakash Nanda | Date:26 May , 2014 5 Comments
Prakash Nanda
is a journalist and editorial consultant for Indian Defence Review. He is also the author of “Rediscovering Asia: Evolution of India’s Look-East Policy.”

The recent suggestion of the Gujarat chief minister and BJP’s Prime Ministerial candidate Narendra Modi at a rally in Jammu that the nation should debate the usefulness of the Article 370 of the Indian Constitution that grants special rights to the state of Jammu and Kashmir has caused a hue and cry in the political circles. It has particularly angered the anti-BJP politicians, activists and intellectuals, who, in turn, are unanimous that the BJP through this demand has injected communal elements into the national politics and strengthened the hands of the Kashmir – separatists and their masters in Pakistan.  Jammu and Kashmir Chief Minister Omar Abdullah has interpreted Modi’s suggestion to be unfortunate and unnecessary. In an answer to question at a media enclave on December 4, he said that that there was a lot of confusion among the masses regarding Article 370. He said that “the law unites J&K with the other states and it serves as a bridge between the state and the rest of the country”.

Article 370

{Temporary provisions with respect to the State of Jammu and Kashmir}

(1) Notwithstanding anything in this Constitution, –

(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to –

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists, as, with the concurrence of the Government of the State, the President may by order specify.

Explanation: For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948;

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order (46) specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government. { ICL-Note: In exercise of the powers conferred by this article, the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that, as from the 17th day of November, 1952, the said article 370 shall be operative with the modification that for the Explanation in clause (1) thereof, the following Explanation is substituted namely: “Explanation: For the purposes of this article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Governor of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.” }

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

4. In exercise of the powers conferred by this article the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that, as from the 17th day of November, 1952, the said art. 370 shall be operative with the modification that for the explanation in cl. (1) thereof the following Explanation is substituted namely:

Explanation—For the purpose of this Article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-I-Riyasat of Jammu and Kashmir, acting on the advice of Council of Ministers of the State for the time being in office.

Omar’s father and Union Minister Farooq Abdullah has gone even a step further to say, “Whether it is Narendra Modi or anybody else, nobody can abrogate Article 370, which is here today and would be here tomorrow.”  He apparently was “sad that in order to fool people, Narendra Modi is speaking of issues like Article 370. If he wants to become the Prime Minister of India, he must think of uniting India and not of dividing it.”

What exactly did Modi say at the rally? Going by the press reports, he said that the BJP  would carry forward the initiatives in Jammu and Kashmir on the principles of “Insaniyat, Jamhuriyat and Kashmiriyat” as envisioned by former Prime Minister Atal Bihari Vajpayee, that “whether Article 370 has done anything good or bad should be discussed, but has Omar Abdullah’s sister got the same right as him?”( Omar’s sister is married to junior Union Minister Sachin Pilot, hailing from Rajasthan),  that “despite huge natural resources, the state government has always been approaching the Centre with a begging bowl, that corruption is rampant in Jammu and Kashmir,  that it was time  that  there should be  laws to prevent corruption be there in the state something that is not possible as the rules made by the centre  are not applicable in the state because of Article 370, and that “Article 370 of the constitution grants special status to Jammu and Kashmir. The BJP has always advocated for scrapping the Article.”

Most of the reactions that followed Modi’s suggestion centered round why, how and if the women in the state of Jammu and Kashmir do not enjoy the same property rights as that of the men. Omar termed Modi’s view on the subject was factually wrong. As Prof. Rekha Chowdhary rightly says, “Article 370 has nothing to do with this issue. It is the issue of Permanent Residents of the state. This was a local law passed in 1927 by Maharaja Hari Singh. According to this law, only the state subjects were entitled to certain privileges including state employment and ownership of property. The discrimination against women was a later phenomenon. The Permanent Resident Certificate (a terminology used for ‘state subjects’ in post-1947 period) for women was stamped ‘valid till marriage’. After their marriage women, in order to enjoy the rights of Permanent Residents of the state had to be reissued the certificate, in case they married the Permanent Residents. Women who were married outside the state were not issued such certificate. This administrative practice was challenged in the High Court of the state and in 2004 decision came in favour of women. As per the present legal position, no distinction is made between men and women in their right to be the Permanent Residents. This is despite the fact that the then ruling  PDP (under Mufti Mohammad Sayed)tried to undo the High Court decision by introducing a bill (twice) for disqualifying women to be the Permanent Residents of the state if they marry outside the state. However, the bill could not be introduced due to the vehement opposition within the Assembly and outside. Hence women even if they marry outside the state continue to be the Permanent Residents of the state”.

It may be noted here that the PDP was not alone in making laws to overcome the High Court judgment. The National Conference of the Abdullahs was also very a party to it. In that sense, Modi’s suggestion resulted in a categorical statement of   Omar Abdullah that his party was wrong and would not challenge in future the majority Jammu and Kashmir High Court judgment that favoured property rights of the women married outside the state. But then, the fact remains that there are still plenty of hurdles for women of the state in acquiring property. For instance, even if a woman from the state marrying outside the state is able to acquire property as per the High Court ruling, her children will not be able to inherit that property as they cannot be “the permanent residents” of Jammu and Kashmir.

Take the case of Sunanda Pushkar, wife of another Union Minister Shashi Tharoor. In an interview to a television channel she said, “I want someone to re-look at this article (Article 370). I am not asking to abolish it but please give us back our home also,” adding, “I have not benefited from this article. Kashmiri Pandits have not benefited from this article many Muslim girls have not benefited from this article.” While being questioned about Article 370, Mrs Tharoor said, “Actually I am quite sure my husband would be annoyed with me answering this question but I do also have a voice. I am a woman I am a Kashmiri, very proudly Kashmiri, and I do beg pardon of my husband if I say this but because he is a very big fan of Jawaharlal Nehru but what I don’t understand when this accord was formed ……. why is about Kashmir that we can’t do it.”

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The views expressed are of the author and do not necessarily represent the opinions or policies of the Indian Defence Review.

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5 thoughts on “Understanding the Article 370

  1. Very educative. Any rational citizen would support scrapping of this dual standard provision which has done more harm to kashmiris. But wide spread of this knowledge is necessary to avoid politicisation and communalisation of the issue. Media , in all forms, should take it up for informed opinion making.

  2. It’s an eye opener article which gives insight to article 370. It is high time that this is widely published in print media in all languages so that a firm opinion is made by the citizens of India. It should not be seen that a particular Party only is against the article.

  3. Article 370 sows seeds of disintegration of a nation of 1.2 billion Hindus, Muslims, Christians, Siks and others. There is no rationale or justification for taking a part of India and assigning, in perpetuity, means for undoing the unity of the nation. Political expediency, lack of strategic view of the unfolding environemt, appeasing a small minority whose allegiance had been in question all along, were factors singularly or combined to explain what may have gone through the minds of the Indian Congress leaders at the time of partition. The result today is a time-bomb ticking away. First, open a public dialogue to inform, educate and consul the population that this is a national matter, and not an issue dealing with a small corner effectiing a minority population. Second, make a case based on national security of India to do away with article 370. Third, present policies and programs to provide benefits, political freedom and rights to the citizens of Kashmir same as any other Indian state. If a minority resists to such a change they should be allowed to contest their positions in the Indian courts of law same as any other state. If after the courts have spoken, the extremist accepting or not the verdict, the Indian law enforcement agencies should enforce the laws of the nation. It is only India, that must decide what is required to maintain the defence and integrity of India.

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