Except Jammu and Kashmir?

Fact-file on Special Provision (Article 370)

By Karthik M,

Yuva Shakthi, Youth Welfare Association (Reg.No: 464/98)

Abstract:

Jammu and Kashmir is a contentious and emotional issue that has been with us since
Independence. It has two aspects. It is high time to resolve the conflict, for better progress and
development. But we often fail to see things in unification. Any enduring settlement must be based
on Facts, not on Emotions and Sentiments though these cannot be neglected completely. Often we
are carried away by the Emotional speeches, thunderbolt orations which are mostly filled with
truncated facts, which make our decision inefficient and irrelevant. This paper is to discuss on the
issue of Kashmir and abrogation of Article 370. The paper would give a brief overview on the
Historical background and would attempt to clear the clutters through the prism of
Constitutionalism. At large the paper is intended to verify the Constitutional validity of Revocation
of Special Status accorded to Jammu and Kashmir under Article 370.

Outline

• Historical Background

• National Integration

• Constitutional Provision…. Temporary?

• Special provision… What is Special?

• Agreement of Promise?

• Integration 2.0

• Hindu vs Muslim? Demographic Profile?

• Carcinogenic…. Breeding ground of Terrorism?

• Future of Jammu and Kashmir?

Evolution of Civilized Society

Barbaric/Early Man

Since time immemorial, Man preferred to live in groups. But if we introspect little
deeper, we could understand that man were an evolved living being, they know the benefit
of living in the Groups or Association. It should be clear that man with the Animal Spirit
would have fought within their Species (Homo sapiens) for the limited Resources of Food,
Water, and Shelter.
 When they realized the benefit of living in groups, the idea of Civilization emerged.
Civilized, the stage of human social and cultural development and organization that is
considered most advanced. The group could not be controlled without Rules and
Regulation. In the beginning, it was Universal Force, Nature, God, and Religion played
prominent role of controlling the people. The works has been divided among the people,
those who gather food, those who maintain granary would turn greedy or would act biased.
This could be avoided by Threatening them with Punishment, but who will punish when all
being equal? Their need an imaginary authority or entity called God. Later the creators,
preacher termed it as so and so Religion.

Rule of the King/Monarchy

When people realize that the factor which controlling them was just an imaginary
one and it would never punish our action or inaction, obviously they would deviate from the
rules and Regulation. The need for replacement came in the form of King, who had absolute
power. He is all in all of the Public Management be it Law Making, Implementation or
delivery of justice. The king had Standing Army, Spies to espionage over enemies (both
Internal and External). This was more powerful, as God-factor could only create fear, but
King-factor has better control by delivering Instant Justice.

Even it is not a permanent cure; the kings were often guided by the old teaching,
conventions through the advice of Priests, Nobles and Strategists. It is often quoted by
Political thinkers that, “Absolute power corrupt absolutely”. Yes, if we scroll through the
pages of history of several countries or Kingdoms, we could see the flavor of Nepotism,
Favoritism, Despotism, Oppression, Corruption, Mismanagement etcetera.

Rule of Law/Constitutionalism

Replacing the old order, convention, practice or misrule with Set of Directives,
Guidelines and Rules led to Constitutionalism, Democracy, Separation of Power and People
Sovereignty etcetera. Constitution is the “Law of the Land”, Rules and Regulation.

A constitution is an aggregate of fundamental principles or established precedents

that constitute the legal basis of a polity, organisation or other type of entity, and commonly
determine how that entity is to be governed.

Moving towards Anarchy

Anarchy is a state of disorder due to absence or non-recognition of authority or

other controlling systems. A Society without Rules would lead to complete Chaos. A
prosperous and free society is possible only when each individual is, by rule of law,
protected from force imposed by others, especially those in his own government. The
Founders created a nation based on the fundamental principle that the state is subservient
to the people.

Each stage of transition has also inherited certain unpleasant components from the
previous order/system. For Example: Constitution of India has advocated for Democracy at
all level of Government but the Political Parties prefer to transfer baton only to its own
 Ward (Law of Primogeniture). Even People, who often raise or agitate to secure their Right
never realize that the practice is nothing better than the old order of Monarchy or Kingship.

At the same time, it doesn’t mean that the Transition should completely overthrow
the existing order, old practice or conventions. If the elements inherited from the past have
relevance or Utility, if it could bring in ORDER in the society, if it could develop HARMONY,
Brotherhood, and HUMANISM, it could persist longer. For Example: Religion, Spirituality,
Tradition and Culture which bring people together in the name of Celebration, Festivity,
Pilgrimage etcetera but it imbibe certain Values on them.

Post-Independence Consolidation

Unification of India under one administration:

Challenges of Nation Building India faced at the time of Independence. Freedom

came with partition, which resulted in large scale violence and displacement and challenged
the very idea of a secular India. The internal boundaries of the country needed to be drawn
afresh to meet the aspirations of the people who spoke different languages. The daunting
task was Integration of Princely states into the Indian Union.

Atlee’s Announcement (20th Feb 1947)

The Prime Minister of the United Kingdom announced on 20 February 1947 that:
the British Government would grant full self-government to British India by 3 June 1948 at
the latest, The future of the Princely States would be decided after the date of final transfer
is decided.

States’ Department (Integration of Princely States)

The legislature representatives of the Indian National Congress, the Muslim League,
and the Sikh community came to an agreement with Lord Mountbatten on what had come
to be known as the 3 June Plan or Mountbatten Plan. This plan was the last plan for
independence.

In India the States Department is under admirable guidance of Sardar Vallabhhai

Patel with my own reforms Commissioner, Mr. VP Menon as Secretary. In Pakistan the
Department is under Sardar Abdur Rab Nishtar with Mr. Ikramullah as the Secretary. Mr.
Jinnah, the future Governor-general of Pakistan, is prepared to negotiate the case of each
State separately and individually. But in the case of India, where the overwhelming majority
of the states are involved, clearly separate negotiation with each State is out the question.

Operation Princes (Mountbatten) 25th July 1947

Under the Partition settlement and Indian Independence Act, enacted by the British
Parliament, the Princely States would become notionally independent with the lapse of
paramountcy on August 14115, 1947. However, given historical, cultural, economic and
strategic compulsions and the obvious logic of contiguity, the Rulers were advised by the
last Viceroy, Mountbatten, that they had little option but to join either of the two new
Dominions of India or Pakistan. This would entail signing an Instrument of Accession ceding
control over External Affairs, Defence and Communications to the Dominion of choice.
Further entrustment of powers was left to negotiation.

When Mountbatten addressed The Chamber of Princes to choose either of the 2

dominions; India or Pakistan, there was NO THIRD OPTION.

"It is a Great pleasure and a great privilege for me to address so many Rulers, Dewans
and Representatives of the States of India in this historic Chamber of Princes. It is the first and
last occasion that I have the privilege of addressing you as crown Representative.

It was necessary to set up two States Departments, one in each Government, because
States are theoretically free to link their future with whichever dominion they may care. But
when I say that they are at liberty to link up with either of the Dominions, may I point that
there are certain geographical compulsions which cannot be evaded. Out of something like
565 states the vast majority irretrievably linked geographically with the dominion of India.
The problem therefore is of far greater magnitude with the dominion of India than it is with
Pakistan.”

Later three options were provided to the Princely states as:

1. Either to join the Dominion of India.

2. Or to join the Dominion of Pakistan.

3. Or join neither and State as Independent State.

Integration of Princely States into Indian Territory:

The Rulers of the Princely states were in the dream of becoming an Independent
states, it means they don’t want to join either Indian Dominion or Pakistan Dominion.

Why should we integrate the Princely states?

Why shouldn’t they choose the THIRD OPTION and stay independent? Why can’t
they develop their own democratic setup?

Firstly, Restoration of Monarch might make the idea of Democracy distant dream
which would put the people in to the position of SUBJECT rather according them the status
of CITIZEN.

Secondly, the Land as a resource… Princely states constitute more than 45% of the
geographical land area with only 25% of the
population whereas remaining 75% population
Remaining
was in the British India Territory.
Population
Thirdly, considering Kautilya’s Matsaya
Land Area
Princely Naiya – “big fishes swallow small fishes” – smaller
States states or provinces would be efficient for
Administration and Economic Development.
0% 50% 100% Anyhow it should be integrated through a
common identity and central authority which would prevent hostility, mutual suspicion,
disharmony etc. That could be seen in the Quazi-Federal Setup of India which is Cooperative
and Competitive in spirit.

Finally, the very own idea of creating INDIAN FEDERATION as emphasized in the
1935 Government of India Act has not seen the light of the day.

Problem: Travancore, Kashmir, Junagath, Hyderabad

The ruling clique in Hyderabad (the largest and richest of all princely states) had
blatantly refused to join the Indian dominion. Both requests and threats from Patel and
others mediators failed to change the mind of the wily Nizam, who kept expanding his army
by importing arms from Europe. Things took a turn for the worse when armed fanatics
(called Razakars) unleashed violence targeted at Hyderabad’s Hindu residents. Patel acted
again. On September 17, 1948, Indian forces marched into Hyderabad under what came to
be known as ‘Operation Polo’. Another problem rose with Jodhpur. It was pointed out
that the accession of a predominantly Hindu state to Pakistan would violate the basic tenet
of the two-nation theory and was very likely to cause communal violence in the State. Thus,
Jinnah’s blank cheque was quickly negated and Jodhpur acceded to India.

Next came Junagadh (now in Gujarat), a kingdom with nearly 80% Hindu population
whose Muslim ruler decided to accede to Pakistan on September 15, 1947. The outraged
people of Junagadh rose against the Nawab’s rule in several parts of the state , forcing
the ruler to flee to Karachi with his family and formed a provisional Government there.

Patel asked Pakistan to reverse its acceptance of the accession and to hold a
plebiscite. When it refused, he sent the Indian Army to annex the princely state on
November 1, 1947. This was followed by plebiscite that was held in December the same
year, during which 99% of Junagadh’s people chose India over Pakistan.

Integration of Kashmir

As for Kashmir, a princely state with a Hindu king ruling over a predominant Muslim
population, it had remained reluctant to join either of the two dominions. The case of this
strategically-located kingdom was not just very different but also one of the toughest as it
had important international boundaries — Tibet (east), China (North East) and Afghanistan
(Afghanistan).

Knowing Pakistan’s intentions about the volatile situation in Kashmir, Patel took a
series of steps immediately. Planes were diverted to Delhi-Srinagar route, and telephone
and telegraph lines were laid between Pathankot, Amritsar and Jammu as well. He further
undertook strategic steps to place the Indian Army in an advantageous position.

Watching the prospects of Kashmir slipping out of its hand, Pakistan planned an
invasion. On October 22, 1947, over 5,000 Pakistani lashkars (armed tribesmen) Army
invaded Kashmir. Two days later, a desperate Maharaja Hari Singh offered to accede to
India in return for immediate military assistance.
 This was followed by an emergency meeting of India’s Defence Committee
(comprising Nehru, Patel and defence minister, Baldev Singh), which ordered Indian troops
in the Valley to evict the Pakistani invaders.

Patel realized immediately that the battle would be long and planned for the same.
With India’s only motor-able road link to Jammu and Srinagar (passing through Sialkot in
Pakistan) being snapped, Indian troops were facing great difficulty in their strategic
movement.

National Integration

The ever-pragmatic Patel and his brilliant secretary accomplished the monumental task of
unifying the princely states into the Indian union.

Article 1 of the Constitution states that “India, that is, Bharat, shall be a Union of States”.

There is no person who can take credit for the creation of modern UNIFIED INDIA than
Sardar Vallabhai Patel. At a time when differences, disputes and divides in the country are on the
rise, we can connect with the words of this legendary leader had said during the Quit India
Movement,

State of Jammu and Kashmir

The erstwhile Princely State of Jammu and Kashmir has since 1949 been a divided territory,
with India in control of Jammu, Kashmir and Ladakh. The Muzaffarabad area (PoK area) and the
Northern Areas are under de facto Pakistan administration. In addition, China controls the trans-
Karakoram Shaksgam Valley and adjacent region, which Pakistan unilaterally ceded to it in 1963 as
part of a boundary settlement, and also Aksai-chin and a strip of Western Ladakh, into which it
intruded and then militarily occupied in 1962.
 Kashmir, as much as Jammu, has been part of India's political and cultural domain and
spiritual consciousness for some 3000 or more years going back to ages of our ancient epics. The
Ganpatyar and Khir Bhavani Temples in the Valley, the Shankaracharya shrine dominating Srinagar
and the giant Buddha statues in Gilgit speak of this connection. The Emperor Asoka brought
Buddhism to Kashmir in the 3rd century B.C and it was here that Kanishka held the Third Buddhist
Council. Lalitaditya's reign (697-738 A.D) marked a golden age. Islam was adopted by consent in
the 14th century giving birth to a vibrant, syncretic sufi-rishi tradition of Kashmiriyat that has been
deliberately undermined by today in the name of ‘jihadis’.

Demographic Profile of Jammu and Kashmir

J&K is a highly plural multi-ethnic and multi-lingual entity. The ethnic stock on the
Indian side is principally made up of Dogras, Punjabis, Kashmiris, Gujars and Bakarwals,
Ladakhis and Baltis while those living on the other side are of Punjabi, Pathan, Balti,Dardi,
Shin, Yashkun, Mongol, Tadjik, Turkic and other Central Asian extraction.
Separate Constitution of Jammu and Kashmir

The Constitution of Jammu and Kashmir was the legal document which established
the framework for the state government of the Indian state of Jammu and Kashmir. The
constitution was adopted on 17 November 1956, and came into effect on 26 January 1957.

Main Features

– The Constitution declares that the State of Jammu and Kashmir is an integral part of
India.

– It provides justice, freedom, equality and fraternity to the people of the state.

– State of Jammu and Kashmir comprises all the territory of that was under the ruler
of the state on august 15, 1947. It means Pakistan occupied Kashmir (POK) is also
the part of India.

– The state has bicameral system. There are 111 members elected directly by the
public in the Vidhan Sabha; out of which 24 posts have been kept vacant for "Pak
occupied Kashmir".

– Under the original constitution of the state, the Chief of the State was "Sadar-e-
Riyasat" (President) and Chief of the government was "Wazir-e-Azam" (Chief
Minister). In the year 1965, they were nominated as governors and Chief Minister
respectively.
Boundary demarcation: Bone of Contention

The key UN resolution of August 13, 1948 proposed a Cease Fire Order (Part I), barring
any augmentation of armed forces, organized or irregular, followed by a Truce Agreement (Part II)
calling for wholesale withdrawal of all Pakistani troops as well as the tribal invaders and other
Pakistani combatants from J&K. The territory so evacuated was to be administered by the Local
Authorities (of the State) under the surveillance of the UN Commission with such Indian military
assistance as might be considered necessary by the Commission.

Pakistan was frustrated by the failure of the six rounds of Swaran Singh-Bhutto talks on J&K
through 1963 but sensed opportunity in India's discomfiture in the 1962 Sino-Indian conflict.
Further, encouraged by its awn boundary settlement and friendship treaty with China (1963) and
having tested its new US-aided military prowess in Kutch (1964) and also banking on what is saw
as a weakened India after the death of Nehru, Pakistan embarked on its next adventure, "Operation
Gibraltar". So-called Pakistan "irregulars" with full military support launched a multi-pronged
invasion of J&K on August 5, 1965 along five major axes under the directions of Major-General
Akhtar Hasan Malik, GOC 12 Division.

In 1963, Pakistan unilaterally conceded to China some 6000 sq km of J&K territory in the
Shaksgam Valley and adjacent areas of J&K, north of Siachen, from east of K2 to a point a little short
of the Karakoram Pass. Thereafter it commenced extending its lines of communication eastwards
from Skardu.

There is first the international boundary between J&K and Pakistan in the Jammu-Sialkot
sector. This is known as the "Working Border" in Pakistan's terminology and came into being with
Partition. Next, the Cease Fire Line, CFL, (Karachi Agreement, July 27,1949), was redesignated as
the Line of Control (LOC) in 1972 (Suchetgarh Agreement).

Article 370: Autonomy & Integration

With J&K's accession to India in 1947,it was necessary to define their constitutional
relationship. This was done by adoption of Article 370 of the Indian Constitution, defining the
mechanism for managing Centre-State relations with specific reference to J&KT. his Article has
nothing to do with J&K being part of India or its further "integration with India" .

Article 370 provides that

"(1) Notwithstanding anything in this Constitution ....
(b) i. the power of Parliament to make laws for the State shall be limited to those matters in
the Union List and the Concurrent List which, in consultation with the State, are declared by
the President to correspond to matters specified in the Instrument of Accession ....
ii. Such other matters in the said Lists as, with the concurrence of the Government of the
State, the President may by order specify.
(c) The provisions of Article 1 and of this Article shall apply to that state subject to such
exceptions and modifications as the President may by order specify; provided that no such
order ... shall be issued except in consultation with the government of the State
Jammu and Kashmir Integral Part of India

Article 3 in part 2 of the Jammu and Kashmir constitution stated "Relationship of the State
with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the
Union of India."

“Large no. of residents of J&K took a loan from State Bank of India for numerous purposes
by pledging their property, but on account of non-payment of loan amount and repeated reminders
by the bank, SBI took the legal route provided under the SARFAESI Act and started the process of
securitization of its debts. Loan defaulters challenged the process adopted by the bank where they
pleaded that property of a permanent resident of J&K cannot be acquired by the non-JK resident.
State H.C ruled against SBI. The appeal was finally settled by the Supreme court of India with some
really interesting remarks on alleged Sovereignty of JK and people living therein.”

In its judgment titled “State Bank of India v. Santosh Gupta and Anrs” which Hon’ble
Supreme Court decided in the backdrop of the appeals filed by various petitioners against the

In some of the initial paragraphs of the Judgment Hon’ble Court made it very
clear while refereeing to Article 1 of the Constitution of India and Section 3 of the
Constitution of Jammu and Kashmir that:

There is no dual citizenship in India like any other country and the permanent
residents of the State of the Jammu and Kashmir are Indian Citizens.

Even in the State of Jammu and Kashmir Quasi- federal Structure of the
Constitution of India continues.

Constitution of India and the Constitution of Jammu and Kashmir do not have
equal status.

judgment delivered by the High Court of Jammu and Kashmir dated 16.07.2015. In the impugned
Judgment High court held that Since various provisions of the SARFESI Act, 2002 collides with
section 140 of the Transfer of Property Act of Jammu and Kashmir 1920 therefore, they are beyond
the legislative competence of the Parliament, as a result, can not be made applicable in the state for
banks which are of Indian Origin.

Hon’ble Court also refers to the cases like Prem Nath Kaul v. State of Jammu and Kashmir
and Sampath Prakash just to reiterate that though Art. 370 is a temporary provision but unless the
consent of the constituent assembly is obtained it cannot be removed. (see para 11)

Hon’ble Court held that under Art. 370 no concurrence of state government is required to
make any parliamentary legislation applicable in the state of Jammu and Kashmir if a matter is
enlisted in the Union list or concurrent list as made applicable to the state of Jammu and Kashmir
through Presidential Orders.
Citizenship plus Provision: (Dual Citizenship)

The Constitution of India usually does not permit holding Indian citizenship and citizenship
of a foreign country simultaneously. The Government of India has now enacted laws to grant
Overseas Citizenship of India (OCI), which could be dubbed as “Dual Citizenship”. But the case of
Jammu & Kashmir is little worse, but so called ‘liberals’ would argue the non-existence of the very
concept of “Dual Citizenship” in India. Of course, Constitutionally, Legally it is valid, but the
insertion Article 35A is itself a short-cut route to the constitutional provision. It is often criticized
by the constitutional experts, that even new edition/print of constitution has placed the Article 35A
in the Appendix unlike the Article 21A which find its place in between Article 21 and Article 22.

 It lays down that a citizen of India is treated as the permanent resident of the state if on
May 14, 1954; he/she….
o Lawfully owns the property in the state
o Has been living in the state for 10 years prior to May 14, 1954
o Having migrated to Pakistan after March 1, 1947 but returns to the state for
resettlement.
 Kashmir Constitution gives all the rights to the permanent residents of the state but
who is the "permanent residents" of the state shall be decided by the State Legislative
Assembly only.

Article 35A is a symbol of “Kashmiri colonialism” over the rest of J&K. In a memorandum to
the Union Home Minister and to the National Human Rights Commission, the Jammu & Kashmir
People’s Forum presented cases of the communities whose fundamental rights have been “legally”
snatched by the state government—the right to property; right to vote; right to employment; right
to marriage by choice; right to higher education; right to be a member of a panchayat or a
cooperative society; right to avail bank loans. These communities are:

Refugees from POK (Pakistan Occupied Kashmir) who were forced to live and settle outside
J&K after they crossed over to Jammu in 1947.

1) Kashmiri Pandits and Sikhs who were forcibly pushed out of Kashmir Valley.

2) West Pakistan Refugees (WPR) who migrated to adjoining Jammu in 1947.

3) Families displaced due to regular firing along the Line of Control (LOC) with Pakistan.

4) Balmiki community members who were persuaded by Sheikh Abdullah to migrate from
Punjab to J&K to undertake the scavenging of night soil.

5) Descendants of Gorkha soldiers of the Maharaja’s Army.

6) Women of J&K who married men from other states. The children born of such offspring too
are denied all rights. No such provision exists for the men who marry non-state subjects,
making it a gender biased issue.

7) The people of Ladakh who have to live at the mercy of the Kashmiri administration.
Except for the exiled Pandit families and the people of Ladakh, all other communities mentioned in
this list have been denied the status of permanent residents or state subjects because of Article 6 of
the J&K Constitution, which draws its powers from Article 35A of the Indian Constitution.

Article 35A: Trade-off on Equality

Under the Constitution of India, the Right to Equality is the bedrock of democracy. This
stands sacrificed in terms of the provisions of Article 35A. J&K is the only state in the Indian union
which has the powers to control the rights and liberties of other Indian citizens in J&K. This is why
there is denial of judicial redressal for the non-permanent residents of J&K. Article 35A sanctifies
and legitimises this basic defiance of the Indian Constitution. Most people in the legal profession
remain ignorant of this aspect, since it was inserted as an Appendix, which is not a part of the
official text of the Constitution. It was never presented before the Parliament as the sole authority
to amend the Constitution is vested only in the Parliament of India.

The Muslim refugees from Xinjiang and Tibet, who had migrated to Kashmir following the
Chinese occupation of their countries in 1949 and 1959, respectively, have been granted “state
subject” status, along with voting rights in the Assembly by the J&K government. Jagdeep Dhankhar,
a senior advocate of the Supreme Court and former Union Minister, in his keynote address at a
function organised in the Nehru Memorial Museum and Library in September 2017, made the
pertinent point that he too was unaware of the existence of Article 35A—an Article which outrages
every word of the Preamble of the Constitution of India. Speaking at the same venue, the former
Governor of the state, Jagmohan said, “The common people of Jammu Kashmir, the poor, no one is
benefitting from Article 370 or Article 35A—whether they are Hindus or Muslims. It is only vested
interests, the elite, who have been benefitting from these provisions.

Exemption to Parliamentary Enactment:

• Indian Penal Code vs Ranvir Penal Code?

• Transparency? Right to Information?

• Right to Education?

• Decentralization? PRI? Local Governance?

• Reservation for Minority?

• Investment and Development?

Article 370: Special or Temporary?

Very word of the Constitution Part XXI says, it is a Temporary, Transitional Provision. In
essence, it is subject to replacement, repeal or abrogation in the future as time demands.

Article 370 was drafted in Part XXI of the Constitution, which relates to “Temporary,
Transitional and Special Provisions”. Clause 3 of the Article empowers the President of India on the
recommendation of the J&K Constituent Assembly to issue a notification for the abrogation of
Article 370. However, the J&K Constituent Assembly dissolved itself on January 25, 1957, without
recommending abrogation of Article 370, leaving some people to argue that Article 370 had become
a permanent fixture of the Constitution of India, despite being titled a temporary provision in the
Constitution.

Constitutionality of revocation of Article 370:

In modern times, the space for regressive laws is shrinking. But abrogation of such laws will
be opposed by vested interests. It has taken decades to rid the Muslim daughters of India of the evil
and ignominy of triple talaaq—a pernicious custom whereby a Muslim male could divorce his wife
by a simple rendering of the word talaaq, three times, by any means. Here too, the Muslim clergy, all
male dominated, termed such a judgement by the apex court as an assault on their faith,
conveniently forgetting that Muslim countries such as Pakistan have already enacted such laws
decades ago. It is, thus, time for India to move on and not be held hostage to blackmail and threats
from religious power brokers.

• Article 238 – Application of Provisions of Part VI to States in Part B of the First

Schedule.

• Article 35A inserted through Presidential Order 1954. Constitutional Validity of

Article 35A?

• Article 3: Formation of New State.

Formation of new States and alteration of areas, boundaries or names of existing States:
Parliament may by law

(a) form a new State by separation of territory from any State or by uniting two or
more States or parts of States or by uniting any territory to a part of any State;

(b) increase the area of any State;

(c) diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State; Provided that no Bill for the purpose shall be
introduced in either House of Parliament except on the recommendation of the President

• Interpretation under Article 367?

(1) Unless the context otherwise requires, the General Clauses Act, 1897 , shall,
subject to any adaptations and modifications that may be made therein under Article 372,
apply for the interpretation of this Constitution as it applies for the interpretation of an Act
of the Legislature of the Dominion of India

(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or
to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a
reference to an Ordinance made by the President or, to an Ordinance made by a Governor,
as the case may be
 • Legal or Constitutional Hurdle in Scrapping Article 370?

Breach on Agreement of Promise:

Mahatma Gandhi was visiting Rabindranath Tagore’s School in Santiniketan, just outside
Calcutta, India. A young girl approached him for an autograph. In her book he penned this entry:
“Never make a promise in haste. Having once made it fulfil it at the cost of your life.”

Rabindranath Tagore was too eager to know, what Bapu has written in it. Tagore, seeing
Gandhi’s entry, became agitated and wrote in the girl’s book a Bengali poem to the effect that no
one can be made “a prisoner forever with a chain of clay.” The concluding line of the poem,
however, was done in English for Gandhi to read: “Fling away your promise if it is found to be
wrong.”

If we think in the line of Rabindranath Tagore, the Constitution has provided for a
Temporary or Special provision, it also describes the ways to do away with the same. The
Constituent Assembly has withered away itself without making any arrangement regarding the
same. More than that, these long years of Special provision has not seen the light of Economic
Development but only the insurgency and terrorist outfits.

Had the Article been time bound or incorporated in a manner to allow its lapse in due
course of time, a very high probability of the contentions being resolved would have existed.
Integration in to the mainstream of society and polity has normally been seen as equalizers. The
flow of liberal opinion, people and ideas does not reduce the autonomy or the identity; to the
contrary they only serve to secure.

It is high time to “fling our promise” i.e. Revocation of Article 370, which provision is
explicitly seen as a “cancer cell” eroding the peace and tranquility rather securing the people’s right.

Carcinogenic: Breeding ground of Terrorism

Sociologist Durkheim calls the “whole society as an Organism”. Drawing a straight line with
human anatomy, individual cells which make tissue and they in turn makes Organ, System and
Organism holistically. The “individual cells” similar to the “individual being” in the society has their
own metabolism, functions etc. They prefer to live in their own way but it could not be neglected
that they are inter-dependent. The “theory of invisible hands” operates the Market as advocated by
Adam smith. The States as a part of Indian Territory, though has ethnic, linguistic, cultural
differences, they operate in a symphony.

The vested interest, separatist, insurgency, anti-social elements operates counter-cyclical as

hindrance to India’s growth and prosperity. This could be achieved only by making people state
united, through a common point (Unity in Diversity). The very reason Dr. B.R. Ambedkar opposed
division of states on Linguistic lines and also advocated to adopt Sanskrit as a common/National
Language. Here the problem with Article 370 is much worse, existence of two constitutions which is
more dangerous. The vested interest of the ruling class and privileged section of Jammu & Kashmir
has not made any provision to benefit the common man which ultimately turned them towards
Anarchism, Radicalization and Terrorism.
 Militancy/insurgency gradually changed from being primarily indigenous, though trained
and assisted by Pakistan in the early 1990s, to being dominated by foreign or "guest" militants and
jihadis by 1994.Many smaller indigenous militant formations have dissolved, merged or
surrendered and the JKLF proclaimed it ha1d abandoned arms. The major indigenous militant
group still active is the Hizbul Mujahideen. President Musharraf banned six terrorist organisations
in December 2003 but many continued functioning under new names from different locations.
However, the foreign terrorist component, largely Pakistani but with some Afghan elements, has
now been essentially reduced to two principal formations, the Lashkar-e- Taiba (the militant limb
of the Jamaat-ud Dawa) and the Jaish-e-Mohammad. Smaller formations remain.

The recent attacks at Uri, Pulwama, Bhalakot, etc could add up to the list of Security
Personnel death.
Political Awakening and Socio-Religious Fissure

Article 370 has created a condition of inequality with in the country India. In its very
genesis, Article 370 sought to create unequal terms for people who were citizens of the same
country, living in different regions. This was also a precursor to the unequal development of people
in J&K itself and in comparison to the rest of the country. The multiple cause and effect of the
Maharaja's bid to safeguard his own sovereignty, Nehru's bid to invalidate Jinnah's Two Nation
Theory, and Sheikh Abdullah's bid to ascend to power; all of these have only resulted in effecting an
unequal playing field and creating roots for future disharmony.

Retention of the provision implies festering of contentious issues. In the areas of Jammu and
Ladakh, other reasons for dissent were fermenting. In Jammu, the sudden shift from a Jammu based
Hindu ruler to a Kashmir based Muslim rule, was cause for tremendous heartburn, as were the
issues of a separate flag, a separate constitution and a separately elected governor (not nominated
by the centre in Delhi). Similarly, in Ladakh, it soon became evident that Sheikh Abdullah was far
removed from the Ladakhis and their way of life. As early as 1949, they wrote to Nehru to ask for
integration with Jammu or East Punjab, as separate from the valley. The enormous wealth of
Buddhist monasteries was threatened by the land reforms of Sheikh Abdullah, setting off a religious
friction, as also the fear of eventual accession to Pakistan.

Failure of Article 370 could be listed many – it has not created power structure to serve the
vulnerable population which it originally intended for. Rather it has served as yet another
subterfuge to extant the bias in the society. It has boosted ethnic nationalism posing grave threat to
“Secular spirit of India”. It has not empowered the people; it has not moved a stone towards “Self-
Governance”; It has not improved Social Mobility.

The exclusion of Kashmiri Pandits who remain non-citizen, misunderstanding of the

Demographic profile of the state, Leftist interpretation of Indian History everything added up to
flawed approach to the problem of Kashmir. We often tuned to view things through the prism of
Communalism, Religious fracture, Any enduring settlement must be based on Facts, not on
Emotions and Sentiments though these cannot be neglected completely. We need a unified
perception, we often fail to differentiate:

1. Spirituality and Science

2. Belief and Knowledge

3. Righteous and Self-Righteous

4. Rationality and Omniscience

5. Reasoning and Antagonizing

6. Socialism and Anarchism

7. Acceptance and Tolerance

Future of Jammu and Kashmir

On Monday, August 5, 2019, the Narendra Modi government made arguably the most
audacious decision of its tenure and probably the boldest decision made by any government on
Kashmir since Indira Gandhi arrived at a modus vivendi with Sheikh Abdullah in 1975. By moving to
revoke the ‘special status’ granted to the State under Article 370, and by reorganising the State into
two Union Territories — Jammu and Kashmir and Ladakh —it demonstrated unprecedented
chutzpah, but it may have unleashed a chain of events difficult to predict or contain. For one, while
even the founding fathers recognised that Article 370 was a transitional or temporary provision,
there was a clear subtext; that its revocation would only happen once the acquiescence of the
people of the State was obtained.

For the good of the people of India and for the residents of J&K, Repeal or Abrogation of
Article 370 and Article 35A is commendable deed, as it will pave the way for the development of the
state and its total integration with the union.

It is time to give justice to the victims of Article 35A. These are the women of J&K who
choose life partners from outside the state, the migrants from West Pakistan who came in 1947 and
settled in Jammu Division, the Balmikis, the safai karamcharis who uncertain about their children’s
future, the Gorkhas of J&K, who have lived here since the 18th century and are denied citizenship
rights till date. Such abuse of human rights must end in a free and democratic India.

The Special Provision provided to the state of Jammu and Kashmir has done very little to
the common man in the state in these many years. The idea of revocation of the Special or
Temporary provision would make it possible for the statesman to rebuild the empire. It is not
certain without the people’s participation; the very first step is empowering the citizens at grass
root democracy. The 73rd Amendment was not applied to the state these long years; it is time to
turn the stone.

Conflict Management: Revisiting Gupkar Model

 Internally, for nearly 70 years, New Delhi managed Jammu and Kashmir (or more
precisely the Kashmir Valley) through Srinagar’s Gupkar Road. Gupkar Road became a metaphor
for the Centre’s approach, historically, towards Kashmir. New Delhi’s follies and its firmness; its
cleverness and its calculations; its vacillating largesse and its ubiquitous Leviathan-like presence,
were part of Gupkar’s landscape and legacy.

The Gupkar model, it was obvious, had become redundant and counter-productive and had
incentivised bad politics and the attendant rent seeking and other despicable forms of corruption. It
is time to revisit it, now, shorn of its ideological fervor, what is seemingly being put in place is a new
audacious plan beyond the constitutional interventions. As a start, the Modi plan is fundamentally
about directly reaching out to the people without the mediation of either separatist groups or
mainstream politicians. The new model or approach should involve:

– Military Entrenchment – to keep law & order on pace.

– Benefits to People – entitlement, essential needs.

– Negotiation with Locals – grass root democracy.

Dominance or Compromise will provide only TEMPORARY SOLUTION. We can find PERMANENT
SOLUTION only through Integration.

Universalism, Secularism, Nationalism

Dr. B. R. Ambedkar argue in his ‘Thoughts on Liguistic States’, “Why do Tamils

hate Andhras and Andhras hate Tamils ? Why do Andhras in Hyderabad hate Maharashtrians and
Maharashtrians hate Andhras ? Why do Gujaratis hate Maharashtrians and Maharashtrians hate
Gujaratis ? The answer is very simple. It is not because there is any natural antipathy between
the two. The haired is due to the fact that they are put in juxtaposition and forced to take part in a
common cycle of participation, such as Government. There is no other answer.So long as this
enforced juxtamposition remains, there will be no peace between the two.”
 Dr. Radhakrishnan has observed “Nationalism is a political religion which stirs the hearts
and wills of men and rouses them to service and self sacrifice in a way that no purely religious
movements have done in recent times.” Much before this observation Swami Vivekananda stirred
the hearts and minds of Indians with enthusiasm for strength and fearlessness; ready for service
and self sacrifice for nation.

Swami Vivekananda’s nationalism is associated with spiritualism. He linked India’s

regeneration to her age-old tradition of spiritual goal. He said, “Each nation has a destiny to fulfil,
each nation has a message to deliver, each nation has a mission to accomplish. Therefore we must
have to understand the mission of our own race, the destiny it has to fulfil, the place it has to occupy
in the march of nations, the role which it has to contribute to the harmony of races”. His nationalism
is based on Humanism and Universalism, the two cardinal features of Indian spiritual culture. He
taught people to get rid first of self inflicted bondages and resultant miseries.

Satyameve Jayate!! Jai Hind!!

References:

1. Hoskote, Amitabh & Hoskote, Vishakha. (2017). JAMMU & KASHMIR & THE POLITICS OF
ARTICLE 370: SEEKING LEGALITY FOR THE ILLEGITIMATE. PEOPLE: International Journal of
Social Sciences. 3. 813-835. 10.20319/pijss.2017.s31.813835.

2. ARTICLE 370 OF THE CONSTITUTION OF INDIA AND THE CONSTITUTION OF JAMMU AND
KASHMIR, https://shodhganga.inflibnet.ac.in/bitstream/10603/63964/11/11_chapter%204.pdf

3. Bhat RA (2017) Political Awakening and the Religious Fissures in Kashmir Prior to 1947. Arts
Social Sci J 8: 268. doi: 10.4172/2151-6200.1000268

4. A J&K Primer: From Myth to Reality by B.G.Verghese – Centre for Policy Research.

5. Article 35A and the Future of Stability in Kashmir by Dhruv C Katoch – CLAWS Journal, Winter
2017

6. Article 370 and its implementations by Tawheeda Nabi, Subaiya Nazir, Shahid Hussain Wani,
University of Kashmir, and Desh Bhagat University, Punjab – 2018 IJCRT, Volume 6.

7. Press Information Bureau/ Special Report/ Swami Vivekanada Birth Anniversary 2015
https://pib.gov.in/newsite/printrelease.aspx?relid=114532

8. The Hindu Report/August 2019/ https://www.thehindu.com/opinion/lead/piecing-together-

kashmirs-audacious-road-map/article28827029.ece