There is more of political rhetoric and less of research available on the present topic. There is a need of rigorous debate on the continuation of the present Article in the constitution which is temporary both in nature and its objective. Recently we have witnessed a lot of curiosity and misplaced controversy over Article 370 of the Constitution. Political executives with an unholy stake in the issue are often misguiding the existing curiosities of people for their own benefits.
The Indian Constitution is the lengthiest constitution of the world. It has been graciously accepted considering the diversity it caters to. It lays the foundation for the governance of the world’s largest democracy.
At the very outset, I would endeavour to briefly elucidate upon the origin and birth of Article 370. On the eve of Independence, we were fragmented into a number of princely states who were provided with three alternatives in the cabinet plan– join India, join Pakistan or be an Independent state. Sardar Patel and his team concluded some tough negotiations for the integration of India. In the course of annexation of states, Jammu and Kashmir had some peculiar circumstances and the state acceded to India with special terms and conditions. Hence, the state was provided with considerable autonomy in the Constitution.
The special status accorded to the state of Jammu and Kashmir entitles it to certain privileges in law making with a separate provincial constitution and some exemptions from provisions of the union Constitution. The framers of the Constitution made some special provisions with respect to the state of Jammu and Kashmir to meet the unique situation.
This Constitution forcefully declares that the State of Jammu and Kashmir is an integral part of Union of India. The territory of the State will comprise all the territories, which on August 15, 1947, were under the sovereignty of the Ruler of the State. This includes the Pakistan occupied areas of Jammu and Kashmir also.
The Parliament of India adopted a unanimous resolution in February, 1994 under the then Prime Minister declaring that areas illegally occupied by Pakistan are not acceptable to the national will and the government would aspire and work to integrate those part with the Indian Union. It was only violation of standstill agreement and the invasion of Pashtoons that resulted into the occupation of Pakistan over the POJK. We also saw a similar resolution unanimously passed in August 2013 by our parliament against the resolution passed by national assembly in Pakistan blaming our forces and countrymen for political instability.
IMPACT OF ARTICLE 370
Jammu & Kashmir is the most autonomous state in India. It even has its own State Flag, allowed by Nehru in the Delhi Agreement of 1952. This flag is hoisted on the State’s Council Hall and on the Ministerial vehicles along with the Indian National flag. The State also has its own anthem called Qaumi Tarana, which takes six minutes of singing time and during which senior police officials are required to keep standing. Article 370 is solely responsible for generating a feeling of separatism and exclusion amongst the Kashmiris. They believe “we are different”. It then benefits people who want power like the Abdullah family; they have exploited this Article, not allowing outside people to come to the State. They have thus created their own sheikhdom.
Because of Article 370, there are a number of national laws which are not applicable to the state.
IPC, 1860- This is the most comprehensive and exhaustive criminal enactment which applies to everyone without any discrimination of any kind. After independence, Indian Penal Code was inherited by Pakistan (now called Pakistan Penal Code) and Bangladesh, formerly part of British India. The direct absence of Indian Penal Code gives the State ample room to exercise its discretion in sensitive matters pertaining to law and order. On various occasions attempts have been made to dilute Armed Forces Special powers Act by amending the Ranbir Penal code.
There is only one system of citizenship for the people of the country but in case of Jammu and Kashmir, it is dual citizenship, one of the state and the other of India. The citizens of Jammu and Kashmir are citizens of India but the citizens of the rest of India cannot be citizens of Jammu and Kashmir. They do not have the right to property and the right to vote in Jammu and Kashmir. If a girl belonging to Jammu and Kashmir marries a boy from outside the State, who is not a State subject, she loses all her rights in the State. Even the wealth tax cannot be imposed in the State. The Urban Land Act, 1976, which is in force in the entire country, is not applicable to Jammu and Kashmir. The result of it is that rich landlords, belonging to the majority community in the Valley, indulge in economic exploitation of the poor and the Indian citizens, who are non-State subjects and live in the valley as they cannot even secure loans from the financial institutions.
The presence of Article 370 has inevitably created psychological barrier between people of India and People of Jammu and Kashmir. We are still haunted by the ghosts of the two nation theory by the mere presence of special status to the State in the form of Article 370.
RIGHT TO INFORMATION ACT, 2005
As Jammu and Kashmir RTI act does not provide appointment of Information Commission, the complainant is not only deprived of any guidance about the procedure of filing a complaint, there is also no compulsion on public authority to supply the information sought. However, autonomy would be justified only if it can make better laws and prevent imposition of unjust laws and decisions of the Centre on it. Nevertheless, as far as Right to Information Act of the State is concerned, it is in every sense much worse and regressive than the central act and is thus clearly misuse of the powers that the state enjoys under the cover of autonomy. Autonomy is supposed to safeguard the interests of the people of the State and not of its rulers. Good governance has proved to be a mirage for the people of State of Jammu and Kashmir as the veil cannot be lifted by its own people. It reflects the feudalistic mindset of the rulers of Jammu and Kashmir. Absence of accountability amounts to anarchy and lawlessness.
Other important laws that are not applicable to the State of Jammu and Kashmir include Commission of inquiries act, Representation of peoples act and the national human rights act.
SOCIAL COSTS OF ARTICLE 370
By Social costs I mean the plight of weaker section of the society in the State. Centralized welfare schemes and constitutional safeguards meant for the deprived have not reached to the people of Jammu and Kashmir. There is an urgent need to carry out a detailed research on the status of the deprived section in Jammu and Kashmir. Women, scheduled caste and scheduled tribes constitute the vulnerable group in Indian societies. Evidently, the social cost of Article 370 has been huge. The weaker and vulnerable section has been rendered voiceless by the virtue of Article 370. I would touch upon the status of welfare mechanism available for the vulnerable section in the absence of uniform national supervision and constitutional safeguards.
It has been widely reported that “because of Article 370, Jammu and Kashmir does not have industries and progressive measures like Mandal report on backward classes cannot be implemented”.
The foundation of decentralized governance is found in 73rd and 74th Constitutional amendment act. The Local self-government phenomenon was manifested in these constitutional amendments. This is not applicable to the State. The State is at full liberty to frame guidelines governing the nuances of local self-governments. It displays a serious lapse on the part of the State government.
Our Constitution has recognized the plight of weaker segments in the society by empowering them. Scheduled castes have been socially, culturally and historically been deprived of a dignified existence in the Indian society. Scheduled tribes people have stayed away from the geographical mainstream. Unthinkable level of discrimination has been done to these classes. Acknowledging this, Our Constitution makers, Dr. Ambedkar in particular ensured that for creation of an equitable society, a level playing field is imperative and included policies of affirmative action in the Constitution.
It is pertinent to mention here that the above stated data clearly shows a substantial presence of SC’s and ST’s in Jammu and Kashmir. They together form almost 18% of the population.
Article 370 has devoid the present group of Scheduled caste and Scheduled tribes from direct central assistance and Constitutional safeguards. No justification can substantiate the deprivation of our brethren in the state of Jammu and Kashmir. Together both the group constitutes 20% of the state population.
The Separatist argument of distinctness has caused dearly to the interest of the marginalized in the State. Article 335 of the Constitution exclusively dealing with providing reservation to Scheduled caste and Scheduled tribes in Services have yet not been made applicable to the State of Jammu and Kashmir.
To meet the Provision of Article 16(1) of the Constitution “There shall be equality of opportunity for all citizens in matter relating to employment or appointment to any office under the State”, the State government has miserably failed. Another point, which is imperative to mention here, is that whereas rules for reservation in recruitment and promotion for Scheduled Caste and Scheduled tribe candidates were made effective w.e.f 21-09-1947 in India, these rules came into existence from April 1970 in Jammu and Kashmir. The most unfortunate part connected to this executive order was that it covered affirmative action only for Scheduled Caste and not Scheduled Tribes candidates. The %age of reservation for Scheduled Caste in State cadre post were worked out on the basis of Census report of 1961and no efforts to revise it has been undertaken thereafter.
The Constitutional empowerments of Panchaayat are found in 73rd and 74th Constitutional amendment act, which are not applicable to the state of Jammu and Kashmir by the virtue of Article 370. India lives in its villages. We have been a village centric nation. Mahatma Gandhi envisioned an equitable society on the touchstone of self-sufficient villages. The Non-compliance of the said amendments clearly reflects the political conviction of the provincial government to empower grass root governance. It is hard to imagine an inclusive society by excluding Panchayats and other decentralized organs of governance.
There is no political reservation to the Scheduled tribes in the State of Jammu and Kashmir.
They constitute 11 % of the population. That is a substantial number that can hardly be ignored. Despite being geographically handicapped and suffering locational disadvantages since a long period, no protective measure has been undertaken by the state government to safeguard their interest. The position in the rest of the nation is much better for them as in the state. They have been accorded 7.5% reservation in opportunities of education and employment apart from requisite political representation. A good amount of bureaucrats belongs to this category that is responsibly and dutifully running our nation. Efforts for mainstreaming the tribal people are not encouraged by the State government. Recently, a private member bill seeking political reservation for communities from scheduled tribes was vociferously rejected by the voice votes in the State assembly.
Social Justice is the cornerstone of a Constitutional democracy. It is unfortunate on the part of our leaders and policy makers in the rest of India who have failed to acknowledge the plight of the deprived section in the state of Jammu and Kashmir. Injustice and exploitation would be understatement with respect to the status of vulnerable in the state. The much-hyped Interlocutor report also failed to realize the needs and demands of the marginalized in the State.
There is an urgent need to revisit the present minimal policies of affirmative action in the State of Jammu and Kashmir. The Provincial government is not being accommodative in its endeavours. India as a nation is committed to the values of social justice.
There has been a school of thought that has evolved an approach that attaches paramount significance to constitution and legal bonds and satisfaction of aspirations of the local people. The movement for full application of the Indian Constitution to the state has gained significant momentum in Jammu and the rest of nation. By now, it has been established that no provision in the Indian Constitution has been subjected to such heated controversy within states and India as Article 370. The passion aroused for and against the present issue is responsible for disrupting the emotional unity of the state. The loss caused by Article 370 has been huge. Governance and administration has failed in maintaining the requisite level of law and order in the state of Jammu and Kashmir. With the non-applicability of centralized POCA and RTI act, corruption has been rampant in the state. Militancy and sectarian violence has together amounted to plethora of deaths and human rights abuses. The time has come to rethink on the continuation of Article 370.