Some Myths About Article 370, 35A and Kashmir

In the process of effectively scrapping Article 370 of the Constitution through a Presidential order supported by a resolution in Parliament, the Bharatiya Janata Party (BJP) and its supporters regurgitated a slew of myths, half-truths and sleights of hand that have been part of the Rashtriya Swayamsevak Sangh (RSS) propaganda for decades. The fact that many parties who do not subscribe to the RSS ideology also repeated them only goes to show how far these myths have travelled. Meanwhile, social media went ballistic with RSS/BJP supporters posting more and more bizarre claims while others started offering land for sale in Kashmir.

Here are some of the most long-nurtured myths – and the reality behind them.

MYTH: "J&K integration with India took place in October 1947. Article 370 came into force in 1952, Article 35A came in 1954, four and seven years later respectively. How can Articles 370 and 35A be a condition precedent to merger?"

This statement by Arun Jaitley, conveyed through a tweet on August 4 , summarises a frequently given argument. It is meant to prove that Article 370 and Article 35A were somehow unrelated to J&K’s joining of the Indian Union implying thereby that they are unnecessary and also that they were the result of some Congress government’s stupidity. Actually, this statement is wholly erroneous.

REALITY: The Instrument of Accession (IOA) was signed by Raja Hari Singh, then ruler of J&K on October 26, 1947. The IOA itself said that Parliament could only legislate on defence, external affairs, communications and some ancillary subjects in respect of J&K. Clause 5 clearly says that “The terms of this my Instrument of Accession cannot be varied by any amendment of the Act or of Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. Clause 7 said: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.”

In other words, there were many things left pending in the IOA and these were to be settled through negotiation in the coming years. Remember that in 1947, Pakistani forces and tribal militias had invaded Kashmir and were on the verge of annexing the whole of the state. In fact, this is what forced Raja Hari Singh to turn to India – otherwise he was vacillating. India rushed troops to Srinagar and the war went on till 1949. After that, negotiations on how to lay out the laws and governance mechanism started. Meanwhile, in order to preserve the spirit of IOA and reassure the Kashmiri ruler, Article 370 was moved in India’s Constituent Assembly in May 1949 and passed in October 1949 to become part of the Indian Constitution. In 1950, 1952 and 1954 Presidential Orders to settle various issues were passed. Both Nehru and Patel were part of these negotiations, blowing away the other myth that Patel was opposed to Article 370. The RSS was, at that time, propping up an agitation against the land reforms initiated by the Sheikh Abdullah government (appointed by the Raja), cloaking it as a demand for full integration of J&K. Most land was vested with Dogra and Pandit landlords, so the RSS was simultaneously giving it a communal colour, since most peasants tilling the land were Muslims. Perhaps that’s why they do not choose to remember the complex history of that period.

What about Article 35A? RSS/BJP propaganda hides the fact that way back in 1927, Raja Hari Singh had passed a Hereditary State Subject Order which allowed only to residents of the state to own land and right to government office. Subsequently, this was included in the J&K Constitution by the state’s Constituent Assembly. Because the IOA insisted that only those subjects in the Indian Constitution that were permitted would extend to J&K, the rights of state subjects also had to be preserved. This was done by the Presidential Order of 1954 which inserted Article 35A.

Also read: UT Status to J&K Setback to Federal Experiment

MYTH: “Autonomy given under Article 370 caused alienation of Kashmiri people from India.”

REALITY: Home Minister Amit Shah asserted that Article 370 was the root cause of spread of terrorism while many RSS/BJP leaders have been saying this for years. As a corollary, it is also said that the article was the source of sentimental belief in a separate Kashmir, providing ground to cross-border terrorists to exploit.

The harsh reality is that it is the erosion of Article 370, in letter and spirit, that has led to increasing disenchantment of Kashmiri people and their search for a way out. First, look at the erosion in letter. Since Article 370 provided for extending provisions of law to J&K through Presidential Orders, issued after concurrence of the State Assembly, this method has been used extensively. By the 1954 Order, almost the entire Constitution was extended to J&K. Out of the 97 entries in the Union List, 94 have been made applicable to the state and out of the 47 entries in the Concurrent List, 26 have been extended to the state. This has largely reduced the powers of the J&K state government. In all, Article 370’s provisions were used at least 45 times to extend provisions of the Constitution to J&K.

In this way, not only have the rights of the state been increasingly restricted, the spirit of the section has been violated by simply getting the state government to rubber stamp such extensions. Not that there should be no extensions at all. But so many? And that too by routine approval.

Not only this, the state’s own Constitution was amended several times using Article 370. For instance, Article 356 was extended removing a similar provision in the J&K Constitution (Article 92) which called for President’s concurrence for imposing President’s rule. Extension of President’s rule were done using Article 370. Even Article 249 (power of Parliament to make laws on State List entries) was extended to J&K without an Assembly resolution but through a recommendation of the Governor.

Many of these measures were used in the past (by Congress governments) to manipulate the politics of the state – to install ministries or impose President’s Rule. The BJP government itself played the same game in the previous term. And, now they have upturned the whole thing lock, stock and barrel.

MYTH: “Development was not possible because Article 370 didn’t allow it.”

REALITY: This is one of the most ludicrous of all myths created by the present government. Referring to the effective scrapping of Article 370, Arun Jaitley tweeted: “"The decision of the government will help the people of J&K the most. More investment, more industry, more private educational institutions, more jobs and more revenue." Many of the MPs who spoke in the Rajya Sabha and Lok Sabha waxed eloquent on the so-called benefits that would accrue with the removal of special status, including J&K will now become part of Global India”, etc.

How did Article 370 stop any government from providing or encouraging more investment and industry in the state? Already most provisions of the Constitution, including Union list entries were extended to the state. Most laws were also extended. The Union governments of the day could have undertaken any economic measures or schemes/programmes they wanted in J&K. In fact, all these years, there were wild promises of special packages, including the one made by PM Modi himself in 2015 for Rs 80,000 crore (of which about Rs.66,000 crore only actually materialised, till 2019).

The truth is that no government at the Centre – whether Congress or BJP/NDA – seriously undertook a complete package which included both economic and political measures that would provide sustainable and long-term benefits to J&K. The attitude was always that of distributing largesse and that too in a very myopic manner. Later, as the militancy took roots, all pretence of economic uplift was abandoned except when elections were in the offing.

What Jaitley and others really mean is that by removal of Article 35A, land will now become available and so, real estate sharks can gobble it up and deploy it for setting up private businesses including “private schools” as Jaitley innocently specifies. Whether this will happen or not is for the future to reveal. It is difficult to believe that private investment will flow into J&K even as the people there are discontented and uncertain.

MYTH: “Art 370 and Art 35A, and the arrangement they enshrine, were unique to J&K.”

REALITY: This is a popular myth but wholly untrue. Immediately after Article 370 in the Constitution is Article 371 in which various sub-articles exist giving similar special status to various regions/states based on the ethnic histories and cultures of the areas. These include: 371A for Nagaland; 371B for Assam; 371C for Manipur; 371D and E for Andhra Pradesh; 371F for Sikkim; 371G for Mizoram; 371H for Arunachal Pradesh; and 371I for Goa. Among the main provisions (except for Goa and Andhra Pradesh) are included provisions for land ownership, Governor’s role, etc. In other states too, there are laws preventing non-domiciliary persons from owning land like Himachal Pradesh (under its own HP Tenancy and Land Reforms Act, 1972). So, it is not as if J&K had something unique. It is notable that most states having such special laws that preserve local customs and culture or prevent land alienation have a special history and demographic composition (for example, tribal population) which calls for sensitive handling and assurances about rights. The same was the case with J&K.

Also read: A Kashmiri Pandit On Why He Feels Sad For Kashmiri Muslims