Time to abolish article 370 of the Constitution.
Satbir Singh Bedi | 02 Jun 2014

As part of the integration of various Indian States into the Dominion of India, a three-fold process of integration, known as the Patel Scheme, was implemented.

As part of the integration of various Indian States into the Dominion of India, a three-fold process of integration, known as the Patel Scheme, was implemented.

(i) 216 states were merged into the respective Provinces, geographically contiguous to them. These merged States were included in the territories of the States in Part B in the First Schedule of the Constitution. The process of merger started with the merger of Orissa and Chattisgarh States with the then province of Orissa, on January 1, 1948. The last instance was merger of Cooch-Behar with West Bengal in January 1950.

(ii) 61 States were converted into Centrally-administered areas and included in Part C of the First Schedule.

(iii)The third form was consolidation of groups of States into new viable units, known as Union of States. The first Union formed was the Saurashtra Union on February 15, 1948.

The last one was Union of Travancore- Cochin on July 1, 1949.

As many as 275 States were integrated into five Unions Madhya Bharat, Patiala and East Punjab States Union, Rajasthan, Saurashtra and Travancore- Cochin. These were included in Part B of the First Schedule. Besides, Hyderabad, J&K and Mysore were also included in Part B.

At the time of accession to the Dominion of India, the States had acceded only on three subjects (Defence, Foreign Affairs and Communications). Later, revised Instruments of Accession were signed by which all States acceded in respect of all matters included in Union and Concurrent Lists, except only those relating to taxation.

The process of integration culminated in the Constitution (7th Amendment) Act, 1956, which abolished Part B States as a class and included all the States in Part A and B in one list. However, J&K was a State which was given a separate treatment based on the Instrument of Accession

which its then Maharaja Hari Singh had signed and which was accepted by the then Governor General of India. I take it that other States had also signed similar Instruments of Accession but they later on signed the revised Instruments of Accession. However, a blunder was committed by no asking the Maharaja/Regent of the State of J&K to sign the revised Instrument of Accession.

On the basis of the Instrument of Accession, Article 370 of the Constitution of India was inserted in the Constitution of India giving Temporary provisions with respect of the State of Jammu and Kashmir.

It is stated that the article was a by product of Kashmir 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 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. In fact, when revised Instrument of Accession was signed by other States, Nehru forgot to ask the Maharaja/Regent of J&K to sign a revised Instrument of Accession with India. Was this blunder deliberate? My inkling is that it was a "deliberate" blunder.

There are at present two views regarding the Article 370 of the Constitution. 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 only Muslim-majority state about India secular credentials, and as a mechanism to safeguard Kashmir culture (or Kashmiriyat, as it is often described).

The article supporters see in Kashmir unique personal and property laws an expression of the will of the people of Kashmir and reckon Kashmir 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.

In fact, a separate Constitution of J&K was enacted by the State Legislature which came into effect on 26th Jan, 1957. In view of the fact that the Constitution of India declares it to be a Union of States and not a federation of States like USA, one of its States cannot have a separate Constitution. In fact, either all of its States should have separate Constitutions in which case, it should be declared a federation through amendment of its Constitution so that no State is discriminated against or the Article 370 of the Constitution of India and the Constitution of J&K should be declared null and void being ultra vires of the Constitution of India and hence anti national.