Date: 8/13/2004



Kanayalal M. Taireja

1. The Circumstances under which Article 370 was incorporated in Constitution of Bharat

On October 26,1947. Hari Singh, the Maharaja of Kashmir, signed the Instrument of Accession of Kashmir to the Dominion of Hindusthan. Under this Instrument, he surrendered the jurisdiction of three subjects. Defence, Foreign Affairs and Communication to the Central Government. Lord Mountbatten, presumably with the knowledge and consent of Pandit Nehru, unwisely insisted that the final decision of the accession would be ratified by the Constituent Assembly of Jammu & Kashmir. For the transitional period, from the date of execution of the Instrument of Accession to its ratification by the Constituent Assembly of Jammu and Kashmir, some temporary provisions in the form of Article 370 were made in Bharatiya Constitution. This is how Article 370 was incorporated in our Constitution. It was Sheikh Abdullah who made Pandit Nehru incorporate in our Constitution, the said Article which rendered the bulk of the Bharatiya Constitution inapplicable to Jammu and Kashmir State.

Was it not a blunder by Pandit Nehru to follow Lord Mountbatten blindly? When neither Maharaja Hari Singh nor Sheikh Abdullah demanded the ratification of the Instrument of Accession by the Constituent Assembly of Jammu and Kashmir, it was wrong on the part of the Government of Bharat to insist on the ratification. It was a Himalayan blunder committed by Pandit Nehru. Moreover, the incorporation of the said Article was a temporary provision during the transitional period. It ought to have been removed sooner. But Pandit Nehru, who always considered himself Muslim by culture and Hindu by mere accident of birth, and was of Sheikh Abdullah, obstinately declined to abrogate the said suicidal Article.

Sheikh Abdullah apprehended that if Hindus, who migrated from Pakistan to Bharat, were allowed to settle in the state of Jammu and Kashmir, they would transform the majority of Muslims in the valley into minority. Hence he pressurized Pandit Nehru to get Article 370 incorporated in the Constitution of Bharat, which harmed the entry of non-Kashmiris into the State of Jammu and Kashmir. Thus the nefarious plan to continue outnumbering Hindus in the valley was fulfilled by the dint of Article 370. If pernicious Article -- 370 had not been incorporated in our Constitution, Hindu immigrants would have settled in the valley to reduce the Muslims to minority, and the problem of Kashmir would have been solved for eve

2. Horrendous Consequences of Article 370

1. Two Constitutions, two flags, and two prime ministers in one country

Under Article 370, the state of Jammu and Kashmir was allowed to have its separate constitution, separate flag, separate emblem, and separate prime minister. Thus there were two constitutions, two flags and two prime ministers in one country. Pandit Nehru was the Prime Minister of Hindusthan and Sheikh Abdullah the Prime Minister of Jammu and Kashmir, which was declared as an inseparable part of Bharat

2. Application of two-nation theory

Even ordinary man of common sense will give verdict that by incorporating Article 370 in Bharatiya Constitution, the then ruling politicians implicitly implemented the two-nation theory, on the basis of which they gave one-third of the country in the form of Pakistan to the Muslims.

3. Secessionism spread to other states The venomous tendencies of secessionism and separatism, strengthened by those, who incorporated the baneful Article 370 in Bharatiya Constitution, later on spread to Nagaland, Meghalava, Mizoram and the Punjab.

4. Regionalism and parochialism The Article 370 tanned and fed the forces of regionalism, provincialism, parochialism and obscurantism. It created regional conflicts, collisions and controversies in truncated Bharat.

5. Denial of fundamental right to settle permanently

Under Article 19 (1) (e) and (g) of our Constitution, it is fundamental right of the citizens of Bharat to reside and settle permanently in any part of the country, and to practice any profession or carry on any occupation, trade or business. But Article 370 deprived the citizens of Hindusthan of the right to settle permanently in Jammu and Kashmir. Is it not a strange discrimination that citizens of Jammu and Kashmir could settle in any province of Hindusthan but the citizens of Hindusthan could not settle in Jammu and Kashmir, because of this discriminatory Article 370? Even Pandit Nehru, the Prime Minister of free Hindusthan, could not settle in his own ancestral land Jammu and Kashmir, because of the baneful barrier of Article 370. No citizen of Hindusthan could go to the state of Jammu and Kashmir without a permit issued by the state government, headed by Sheikh Abdullah. Dr. Shyama Prasad Mookerjee, the founder of Bharatiya Jana Sangh (the progenitor of BJP) defied the permit system and entered the territory of Jammu and Kashmir without permit. He demanded from Nehru Government the abrogation of the detrimental Article 370, which smacked of secessionism. Consequently he was arrested on May 11, 1953, and detained in Srinagar Guest House. On June 23, 1953, Dr. Mookerjee breathed his last, while in police custody in the Srinagar Hospital under suspicious situation: The unofficial probe pointed to medical murder. Thus the founder of Bharatiya Jana Sangh sacrificed his life for the abrogation of the venomous Article 370.

6. Denial of Fundamental right to purchase property

Under Article 370, citizens of Bharat cannot purchase immovable property in the State of Jammu and Kashmir, but the people of Kashmir can purchase property in other states of Hindusthan.

7. Deprivation of the right to vote

The citizens of Bharat cannot become the citizens of Jammu and Kashmir. Due to Article 370, they are deprived of their right to vote in the elections to the state assembly or municipal council or panchayats.

8. Double citizenship granted to the citizens of J&K

The Constitution of Hindusthan confers only one citizenship. But the citizens of Jammu and Kashmir enjoy double citizenship - one as citizens of Hindusthan and the other as citizens of the state.

9. Denial of Jobs

On account of Article 370, Indian citizens cannot get jobs in the state of Jammu and Kashmir. All the jobs in the state are reserved for the citizens of the state.

10 Detrimental to women of the state even Article 370 is highly detrimental to the women, who are even born and brought up in the state of Jammu and Kashmir. If a woman, who is permanent citizen of the state, gets married to a man who is not a citizen of the state, she loses her properly. She is deprived of even her ancestral property. In the state of Jammu and Kashmir, domicile certificates issued to women are valid upto their marriage only. They have to acquire fresh 'Permanent Residence Certificate' after their marriage.

11. Denial of admission and job to Kashmiri women after marriage. If a woman, who is born and brought up in Jammu and Kashmir and is permanent citizen of the state, marries a citizen of Bharat, she cannot get a job in the state, nor can she get admission in medical, engineering or agricultural colleges established with the financial aid by the Union of Bharat. Shri Jagmohan, the former Governor of Kashmir and now the Union Minister of Culture and Tourism, cites cite such case of Dr. Rubeena Nasruilah in his book, My Frozen Turbulence in Kashmir.'

12. Victimization of Hindu Immigrants - Supreme Court helpless:

On account of unholy partition of the holy Motherland, unfortunate Hindus were ousted from their ancestral homes in West Pakistan. A few thousand Hindu families migrated to Jammu and Kashmir and settled there. Though, fifty five years have elapsed since their migration, yet they, their children and even grand-children have not been granted citizenship on the ground that outsiders cannot settle permanently in the state on account of Article 370. Consequently, these unfortunate Hindus are deprived of their fundamental rights. They cannot purchase land for construction of their houses. Their names are not included in the electoral rolls of the state assembly. Hence, they cannot exercise their franchise in elections. They cannot get Government or semi-government jobs. They arc not sanctioned loans by the state government. They are not granted government licenses for the purpose of business. Their children are not granted admissions in medical or engineering colleges of the state, though the Union Government of Hindusthan bears most of the expenses of the said colleges. Thus, they are treated as second-class citizens in a state, which is declared as an inseparable part of Bharat. Having seen no other alternative, the unfortunate displaced persons knocked the door of the Supreme Court. It is a matter of irony, agony and astonishment that though the Supreme Court realized the injustice rendered to them; yet, it could not give any relief to them because of the discriminatory Article 370. It is a heartrending tale that the honorable judges of the Supreme Court, in spite of having recognized their grievance as justifiable, expressed their inability in their judgment to give any relief to the unfortunate Hindu immigrants in view of the peculiar constitutional position prevailing in the state.

13. Incapability to alter the boundaries of Kashmir

Under Article 3 of Bharatiya Constitution, the Parliament has the right to change the boundaries of any province, provided the President consults with the authorities of the concerned province before signing the bill. But, on account of Article 370, the Parliament of Hindusthan cannot alter the boundaries of Jammu and Kashmir. For doing so, it has to seek approval from the Constituent Assembly of Jammu and Kashmir. It indicates that the Constituent Assembly of Jammu and Kashmir is above the Parliament of Hindusthan. Had Pandit Nehru not applied Article 370 to the state of Jammu and Kashmir, the Parliament of Hindusthan could have split Kashmir into various parts and annexed the said parts to the adjoining provinces. The only panacea to the problem of Kashmir is to abrogate Article 370, split Kashmir into parts and annex the said parts to the adjoining provinces in such a way that the Muslims may lose the majority, and Hindus may be induced to settle permanently in the said parts with overwhelming majority. The well-planned systematic dispersal of Muslim population and settlement of Hindu population in its place is the only remedy to the malady of Kashmir

14. Non-acceptance of Hindi

The decision of the Union of Bharat pertaining to Hindi as National language could not be applied to Jammu and Kashmir because of Article 370. No member could speak in Hindi in the State Assembly without prior permission of the speaker.

15. No CBI in Kashmir

On account of baneful barrier of Article 370, Central Bureau of Investigation (CBI) was not allowed to work in Jammu and Kashmir. Thus Sheikh Abdullah and his accomplices were let loose to collude with Pakistani conspirators and infiltrators. The reports of his collusions and conspiracies with Pakistani agents and spies could not reach the ears of the ruling leaders of Hindusthan.

16. Two Presidents in one country

It is astonishing that before 1964, the President of Hindusthan could not appoint a Governor in the State of Jammu and Kashmir, on account of restriction of discriminatory Article 370. The Legislative Assembly of Jammu and. Kashmir elected the head of the state, who was designated as the Sadar-i-Riyasal, which is an Urdu word. It means president. Thus the truncated Hindusthan had two presidents, one president of Hindusthan and second president of Jammu and Kashmir.

17. No President's Rule:

Before 1964, the Article 356 of Bharatiya Constitution was not applicable to the state of Jammu and Kashmir. This Article empowers the President to declare President's rule in a State.

If the so called Prime Minister of the State, Sheikh Abdullah had refused to implement the instructions of Union of Bharat, pertaining to Defence, Foreign Affairs or Communication, the President of Hindusthan could not have declared President's rule in the state for want of application of 356 to the state.

Ultimately, the Government of Bharat realized the gravity of the problem and Articles 356 and 357 of Bharatiya Constitution were made applicable to she state in 1964.