Article 370 : Cause of separatism and estrangement

Col B S Nagial
On 26 Oct 1947, Maharaja Hari Singh of the erstwhile princely state of Jammu and Kashmir signed an instrument of accession with the Govt of India. Accordingly, he surrendered Defence, Foreign affairs, and Communication jurisdictions. It is pertinent to mention that the format of accession of princely states was the same for all who joined India. Govt of India insisted that the final decision on J&K’s accession to India should be ratified and approved by the Constituent Assembly of the State. For the intervening period, the temporary provisions were made applicable to the state of J&K under Articles 370 and 35A of the Constitution of India.
In March 1948, the Maharaja appointed an interim Govt in J&K and made Sheikh Abdullah prime minister. In July 1949, three members panel headed by Sheikh Abdullah represented the state in the Indian Constituent Assembly. Sheikh Abdullah advocated for special provisions for the state under Article 370. These special provisions put the state of J&K on a unique footing:
* Parliament needed the J&K Govt’s approval to apply laws to the state except in cases of Defence, Foreign Affairs, Finance, and Communication.
* The property ownership law and the fundamental rights of the residents of J&K differ from those of the rest of India. Under Article 370, citizens from other states couldn’t buy property in J&K.
* Under Article 370, the Centre had no power to declare a financial emergency in the state.
The Constituent Assembly of the erstwhile state of J&K ratified the accession of India in 1956. With this ratification, the temporary provisions of Article 370 should have been put to rest, but it was not done so. Issues concerning the power of the Indian Parliament to the subjects other than Defence, Foreign Affairs and Communication were kept alive and flexible to misuseas and when required. The constitution of J&K was further amended in 1966 to change the designation of Sadr-e-Riysat to the Governor and Prime Minister to Chief Minister.
When the abrogation of Article 370 took place, many provisions of the Indian Parliament were already made applicable to J&K, including the provisions of Article 356. But unfortunately, the serious by-product of Article 370 was the provisions of a separate constitution of J&K. No other state had such a provision. The provisions of the separate constitution had their implications on the rights of the people of state, especially the property right, right to citizenship and right to settlement. The constitution of India recognised only one citizenship, but the people of J&K enjoyed dual citizenship. Women who married the outsiders lost their right of inheritance of property. The state had its flag and emblem, thus creating a different dichotomy.
The roots of separatism lay in Article 370 of the Indian Constitution provided the most substantial causes of separatism and estrangement in the state of J&K. The provisions laid down in this Article not only created economic and social problems but affected the psyche of the people of J&K. It generated a lot of controversy nationwide, majority of people advocated for its removal. Over a period of time, it was grossly misused. Hence, on 5 Aug 2019, the Article was removed from the Constitution of India through an Act passed by the Parliament.
Expressing his concerns about the situation in J&K and the role played by the provisions of Article 370, former governor of the state Sh. Jagmohan wrote in his book.”Article 370 is nothing but a feeding ground for the parasites at the hearts of paradise. It skins the poor. It deceives them with mirage. It lines the pockets of the ‘powerful elites’. It fans the ego of the new sultans. Essentially, it creates a land without justice, full of crudities and contradictions. It props up the politics of deception, duplicity and demagogy. It breeds the microbes of subversion and alienation.”(Jagmohan, My Frozen Turbulence in Kashmir, 1991 p-243).The Indian subcontinent was divided in Aug 1947 into India and Pakistan based on the two-nations theory. However, this Article kept the legacy of the two-nations theory alive and vibrant. It obscured the very idea of India from Kashmir to Kanyakumari and Gujrat to Arunachal Pradesh. Had Article 370 not been removed, it could have become a focal point of the fierce upheaval in the state of Jammu and Kashmir and whose shocks could have been felt by the people all over India.
The political elites with vested interests in the administration exploited the provisions of Article 370 for their use. It bred separatism due to the nexus between inimical elements and the ruling political parties, which formed a malicious cycle. Apart from the political class, the rich people misused these provisions to accrue wealth. The provisions of Wealth Tax, the Land Urban Ceiling Act, the Gift Act, etc., and many other beneficial laws were not implemented in J&K under the grab of special provisions in Article 370. Therefore justice and development opportunities were denied to the people of J&K.
The people of the Jammu and Ladakh regions had long-standing grievances against the political leadership, which tilted toward Kashmir and exploited the provisions of Article 370 for their benefit. This created regional imbalances. Now Ladakh is a separate Union Territory, and the people of Jammu aspire for a separate state.
J&K aftermath of abrogation of Article 370. It has been three years since the abrogation of Article 370, reducing the status of the state and bifurcation into Union Territories, i.e. J&K and Ladakh. One thing is clear: there are no more stone pelting and no shutdown. Schools are opened and functioning after three decades of militancy. People can move around in cities and towns without fear. Provisions laid down in Public Safety Act, and the anti-terrorist law UAPA are being implemented strictly. Separatist leaders have been pushed back to a stupor.
Extension of Central laws to J&K and Ladakh have created equitable societies, and a new era of development has been set in. So far, a total of 890 central laws have been made applicable, 205 state laws have been repealed, and 129 laws have been modified after the abrogation of Article 370. The rights of weaker sections like Scheduled Tribes, other traditional forest dwellers, Scheduled Castes and safari karamcharis’ are now ensured by applying relevant Acts. The rights of children and senior citizens are now being ensured.
The Government of J&K has taken various measures to protect the citizens, which include proactive operations against terrorists, identification and arrest of Over Ground Workers (OGW) of terrorist organisations. Action against members of banned/supporters organisations has been initiated. The security forces maintain a high level of alertness, legal action in cases of terror funding, and support funding.