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ARTICLE 370 – THE WHOLE NATION WANTS IT 

Article 370 – the whole nation wants it

By Prasanna Lal Das

This article is also available on this site.

The blog version of this article is available here.

The cry for the abolition of the Article 370 of the Indian constitution, which confers great autonomy on Jammu & Kashmir, is a misplaced one – the cry instead should be for its extension to the whole of India.

Article 370, unwittingly perhaps considering its historical circumstances, may be the brightest glint of federal expression in the Indian constitution, which otherwise remains largely unitary in character. Large sections of the Indian population (and regions that contain them) thus feel increasingly marginalized from the ‘mainstream’, and seemingly disparate phenomenon like recent disturbances in the northeast, the girding of heartland India by naxalites, the trivialization of the parliamentary process, and paradoxically enough, the continuing impasse in Jammu & Kashmir, may well be said to spring from the centralized nature of governance in India which concentrates power in the hands of a few organized interest groups and leaves the average citizen with only symbols of democratic participation like ritualized elections and awe-inspiring, monumental edifices where elected representatives apparently serve the people. Article 370, minus its current imperfections, may well be the harbinger of a ‘new India.’

Before getting ahead with the story however, a look backwards at what Article 370 is, and its motivations. The article was a byproduct of Kashmir’s accession to India after independence, and was designed to ensure that Kashmiri aspirations were well served by the government of India, and critically, that Kashmiris would have a vital say in the manner their state was governed. In its broadest contours, the article gave the central government primacy in defense, foreign affairs, and communication, while the state government assumed greater control over other laws (including those of property, citizenship, and fundamental rights) and the daily lives of its citizenry. The article was conceived under what may be termed as extraordinary circumstances, when the threat of Kashmir slipping from India’s then tenuous grip was a distinct possibility, and was certainly politically expedient – it was thus originally conceived as an ‘interim’ measure but like many other ‘temporary’ features in the Indian constitution, it has now assumed a permanent air and we currently talk about it mostly as a vexing issue that nobody is ever likely to do anything about.

As things stand, the battle lines for and against the article are clearly drawn – its supporters see the article as a vital cog in the preservation of the Indian union, an instrument that honors a promise that the government of India made to the people of Kashmir at the time of accession, a vehicle to assure citizens of India’s only Muslim-majority state about India’s secular credentials, and as a mechanism to safeguard Kashmir’s culture (or Kashmiriyat, as it is often described). The article’s supporters see in Kashmir’s unique personal and property laws an expression of the will of the people of Kashmir and reckon Kashmir’s interests are best left to the people of Kashmir themselves (especially if it helps maintain the integrity of the Indian union). The opponents of the article however see it as fundamentally flawed – to them Article 370 is a tool of appeasement, one that gives special leeway to Muslims even though they are a majority in the state (at the cost of the ‘real minorities’ in the state – the Pandits, the Laddakhis, etc.), they view it as a discriminatory tool that provides preferential treatment to one state over all others in the country on account of ‘historical blunders’ made after the Kashmir raids of 1948, and they decry it as another hole in the ‘pseudo-secular’ fabric of India which owes its continued existence to the twisted logic of electoral politics rather than to national interest.

It is not my purpose in this article to favor one argument over another (suffice to say that the motives of both sides are suspect to a degree and ideology rather than common logic takes precedence in many of their assertions) but to shift the focus of the debate – rather than keep Jammu & Kashmir at the center of the argument about Article 370, it may be time to view the article in a larger national context. Does the article offer any guidelines to the governing system in the rest of India? Is there greater merit in the rest of India adopting some of the salient features of the article than in denouncing it largely on the grounds of ‘we don’t have it, so shouldn’t she’? Should we choose to be frogs in a well pulling each other down, or is it time to climb out of the holes we have dug for ourselves, and take a look at the larger world around?

Let’s take a look at the article stripped of its historical baggage, and ignore for a moment that it only applies to Jammu & Kashmir in its current guise – all it proposes is greater autonomy in the running of a state than is the norm in the Indian constitution. The article recognizes that India is a diverse country and that a region may have special needs which may or may not be in consonance with the needs of the rest of the country. It thus leaves discretionary powers with the state and subjects all central laws/amendments to state approval before they can be implemented in a state. It transfers accountability and power to the state government in virtually all matters except those that deal with the integrity of the Indian union, and its international relationships. The idea is that only local governance can truly protect the identity and interests of a state and that central participation in governance should be limited to only larger and ‘national’ issues.

Viewed under this lens, there is little that is objectionable about the article and little that is not valid for all other states too – almost all Indian states have distinct cultural traditions, ethos, and practices, which are worth special attention, each state has needs, people, and circumstances that are unique to it and which are difficult to club with a national consensus. Unfortunately however, the Indian body-politick, with a few exceptions, chooses to treat the entire country as an unvariegated whole when framing laws and states have no choice but to both accept and enforce them, regardless of any reservations they may have about the applicability of the law to their local needs. There is quite often little ability amongst states to even tweak or ‘customize’ a law for its state-specific needs – one size, bloated enough, fits all. The result thus is a mode of governance, in which states, despite being in the frontline of administration, have little input into laws, and are squeezed between an unyielding center and an increasingly disenchanted populace. And worst of all, states always have an escape door when implementing unpopular laws – it isn’t their fault! The population is thereby left to fend for itself – it has little access to the central government, and the local government more often than not, finds it easy to wash its hands off any measures that excite debate and disagreement among the governed.

Make no mistake; Article 370 was not formed to lay down the principles of center-state relationships or to directly solve the problem described above. It isn’t thus either exhaustive enough or extensive enough to cover the gamut of issues that go into center-state relations. It however does provide the springboard necessary to begin questioning the unitary model we have chosen to adopt in the whole country, bar Kashmir. And if it can work in Kashmir, why can it not work in the rest of the country too?

There are many obvious problems, and the first ineluctably is the state of Kashmir itself – a state that is quite possibly, with the contentious exception of Bihar, the least peaceful in the country. To make matters worse – the violence in Kashmir does not stem from general lawlessness, as it does in Bihar, but from a disregard of central authority, an attitude that is often blamed, among many other things, on Article 370 (except by the extremists themselves, who believe it doesn’t go far enough!). Is there thus a real risk that extending the article to other states in the country will further fan secessionist flames in the northeast, and other states like Punjab and Andhra Pradesh which have flirted with incipient secessionism in the past? Will Article 370 be the spur that finally breaks India apart?

A more pertinent concern is perhaps the ability of the states to do justice to increased power, and handle it responsibly. Unfortunately, recent Indian constitutional history isn’t exactly littered with examples of farsightedness shown by states – their record is patchy at best, and downright shoddy in reality. In fact, a case may be made that but for central intervention and guidance, most Indian states, driven by narrow, parochial concerns, would have descended into anarchy a long time ago. Possibly the worst record in this regard is that of the Jammu & Kashmir legislature itself, which has shown a remarkable ability to shoot itself in the foot consistently. The recently proposed bill debarring Kashmiri women from property rights on marriage to ‘outsiders’, the legislature’s refusal to accept the amendment limiting the size of state ministries to 15% of the total elected strength, and its long standing refusal to recognize Anglo-Indians and other minorities in the state are just three examples of legislation which persistently refuses to look beyond the state. What guarantees are there that other states shan’t do the same, and perhaps worse?

The answer to both questions lies in the inchoate nature of Article 370, and in its flawed, single-state focused implementation. As stated earlier, the article is not designed to guide center-state relations, but in the case of Jammu & Kashmir, it does just that. Limiting the article to one state however produces one very significant consequence – it allows Jammu & Kashmir to create discriminatory legislation without fear of consequence (as no other state is in a position to answer it in the same coin). It is extremely likely, though by no means guaranteed in the short-term, that Jammu & Kashmir may loosen its property laws that preclude ‘outsiders’ from buying property in the state, and also employment laws that virtually exclude all outsiders as well as a large section of Kashmiris themselves, if other states ever decided to resort to quid pro quo, and excluded Kashmiris from property and employment rights in their states. Right now, this is a non-issue for Kashmiris, but give other states similar rights, and egalitarian values are likely to hit home soon. There’s of course always the chance that allowing such powers to all states may result in a race towards the bottom with each state keen to emphasize its ‘exclusive’ nature but the affliction is likely to be limited to only a few states and that too only for a short time, as some states demonstrate the benefits of inclusive polity and economy. The measure is unlikely to stir any more instability than already exists, and by making states responsible for their actions and overall condition, is likely to curtail any imprudent adventurism. 

The other more fundamental problem with Article 370 is its state-centric, monolithic view of autonomy and local governance. In keeping with the overall unitary spirit of the constitution, the article does little to promote grassroots governance and concentrates all significant powers in the hands of the state government. The version of autonomy it thus creates is in essence a majoritarian one – it cloaks a centralized mode of governance under the garb of an autonomous one. Kashmir can thus never be truly autonomous unless it itself allows power to percolate downwards to the people. In its current avatar, Article 370 is largely a sham, and its fundamental centralizing proclivities must be given a thorough makeover before the article can truly become a template for other states.

All this of course is perhaps asking too much of an article that was conceived in a specific historical context and designed to gradually fade away as the force of those historical forces diminished – there are probably more implications for the constitution here than for this specific article. There also exist several other similar articles for which a similar case may be made (variants of Article 371 the most prominent among them). Article 370 however is as good a place as any to start as it is an existing constitutional provision, and one that already contains germs of what true federalism may eventually be like in India. Expanding it to the whole country will signal willingness on part of the government to start unshackling the states and also permanently bring Kashmir on par with other states in the country without compromising any of its aspirations or the means to achieve them. Article 370 may have been born out of all the wrong questions, but it may inadvertently have led us to a slew of right answers.

At the end however, the question about India’s secular fabric will remain – will expanding the article to the entire country send wrong signals to minority communities in India? This is the most morally challenging part of the debate because like it or not, religion and religious emotions are inextricably tied to the history of the question. Needless to say, the government must be steadfastly secular in its implementation of federalism in India, and religious leaders must indubitably play an important part in the process, but there are no easy answers to the question. The time may however have come to move away from the politics of easy answers.  

September, 2004

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