Article 370 for Jammu & Kashmir keeps the two-nation theory alive and secures security for it in the future. This is unacceptable to India which has dismissed the theory, robustly propagated by Pakistan when it demanded separation from India
Jammu & Kashmir has been one of the most debated topics in the history of India. Much has been said and written about this State. Such is the international importance of the area that countries like Pakistan and China have been interested in including and making the territory their own. Article 370 of the Constitution of India is said to have given the State a special status, different from all the other States of the Union of India.
Historically, India constituted of 562 princely States in British India (known as Rajwadas). The five of the biggest Rajwadas were those of Hyderabad, Mysore, Baroda, Gwalior and Jammu & Kashmir. The last was the biggest among the 562 princely Indian States that comprised two-fifths of the India under colonial rule for well over a century. It was bigger than the four biggest Rajwadas put together.
Unlike the remaining 60 per cent area constituting the British India Provinces, these States possessed sovereignty in various degrees, depending on their individual treaties with His Majesty’s Government; broadly speaking, they had a system of personal Government while being under the overall suzerainty of the British Crown.
The British Parliament’s Indian Independence Act, 1947 (which received Royal Assent on July 18, 1947) created two independent Dominions of India and Pakistan, made up of the erstwhile British India Provinces. The Act freed the princely States from the Crown’s paramountcy but denied them dominion status while allowing them to accede to either India or to Pakistan. Section 6 of the Act said, “An Indian State shall be deemed to have acceded to the Dominion if the Governor General has signified his acceptance of an Instrument of Accession executed by the Ruler.” No last date was mentioned in the Act or the Instrument of Accession by which a ruler was supposed to sign the accession Deed. There was no provision for part or conditional merger in the Indian Independence Act, 1947. The instrument of accession had a uniform pattern wherein which the King has to fill in the dominion he wanted his State to cede to. The filled instrument was to be accepted by the Governor General of India. It is important to understand that Mountbatten had complete jurisdiction to accept the cession but has no right to confer any other right/liability on anyone with respect to such cession. The accession instrument as signed by Raja Hari Singh is available on the internet.
The founding fathers did not recognise any sub-national boundaries, which divided India, into the denominations of the federal structure they devised. The Provinces and the States were cultural, linguistic and religious pluralities, and their political boundaries did not synchronise with any specific sub-national gradients. The one exception to this principle was the special position the Jammu & Kashmir State was accorded. It had been reserved the right to convene a separate Constituent Assembly.
Article 370 is called a ‘temporary provision’. So much is the importance of the word ‘temporary’ that, though the Article appears under Part XXI ie Temporary, Transitional and Special provisions of the Constitution of India, it has still been named ‘Temporary provision with respect to the State of Jammu and Kashmir’. Also, Article 370 can be abrogated in a legal constitutional manner and no special provision for its amendment has been laid down. Jammu & Kashmir was included as integral part of the Indian Union in the Constitution of India. There is/was no provision of Article 370 or any other Article that could be used for disintegration/ secession purposes. There’s also no reference in the Constitution of India, wherein even the acceding maharaja could order or demand the secession of J&K. Therefore, Article 370 was a temporary provision inserted for meeting procedural needs and is only about constitutional procedures as regards with Jammu & Kashmir.
Nonetheless, this Article revives the two-nation theory and secures security for it in the future. On the one side, we proclaim to the world that in India there is no discrimination on the basis of religion, community or sect. On the other, special facilities are being given to Kashmir because there the Muslims are in majority. One of the arguments given in favour of this status is that Kashmir is a backward area. The question then arises: Is there no other place in India where backwardness and poverty are equally importantIJ
Several thousand crores of rupees have been spent in Kashmir but the result is apparently negative. Anti-national elements have thrived. The people of Kashmir became suspicious about integration into the Indian Union and the anti-national elements got an opportunity to launch an open disinformation campaign against India. Pakistan has supported these separatist organisations for decades. The result has been that Kashmiri youths picked up arms against India and forced over three lakh people to leave their houses and property in Kashmir and live in the plains, a life of penury and misery. The poorest State in India is Bihar, but today J&K gets 10 per cent of Central funds, with only one per cent of population (2016 report by The Hindu).
On February 26, 1958, the jurisdiction of the Comptroller and Auditor-General of India was extended and provisions relating to the All India Services applied to the State. In 1959, the State Assembly unanimously decided to seek an amendment to the State Constitution to provide for the extension of the jurisdiction of the Election Commission of India and the Supreme Court over J&K. In January 1960, provisions relating to appeal to Supreme Court by special leave and Election Commision of India’s jurisdiction was extended over elections in the State.
We see that the State of Jammu & Kashmir has continued a process of constitutional integration with the Union of India. The process may have been slow and long drawn as compared to other States, but it is irreversible.
This process needs to be accelerated so that the ultimate objective of complete integration, as promised by leaders including then Prime Minister Jawaharlal Nehru during the debates in Constituent Assembly and subsequently in Parliament also, is achieved. The unnecessary delay here is creating what has been clearly been avoidable confusion and doubts in the minds of vulnerable sections of the State’s population.
(The writer is assistant professor of law, Campus law Centre, Delhi University)