Date: 17 Sep 2008


                      Perfidy of Article 370

Dear friends,
        This refers to AG Noorani's arguments against abrogation of Article 370.      ,

        Mr. A.G. Noorani has been a staunch supporter of Article 370. At one time, he argued that even the Indian parliament did not have the power to abrogate this Article. In India, we have dozens of such devils’ advocates. 

         It is correct that Article 370 confers certain special rights and exemptions to J&K, but all of it was intended to be a temporary phase. This is very clear  from the placement of Article 370 in Part XXI of the Constitution, "Temporary, Transitional and Special Provisions".  It is a   creation of India’s own Constituent Assembly. If it goes, the special position of J&K also goes. Now, the entire matter revolves around the question as to who can remove this obnoxious Article.

          After the Partition, India’s reconstituted Constituent Assembly consisted of 299 Members of whom 229 were elected from the Provinces and 70 from the Princely States of the time, including J&K.  The Constitution as passed on 26th November 1949 superseded all the earlier agreements or Instruments of Accession, signed by the Rulers of the princely States by which the States, including J&K, had surrendered only Defence, Foreign Affairs and Communication to the Union government. Moreover, the Rulers of Hyderababd, Mysore and   J & K adopted the Indian Constitution by proclamations, (CF “Introduction to Constitution of India”, by Durga Das).

          Article 370 was inserted in the Constitution because the Indian government of the time, headed by Jawaharlal Nehru, did not recognize the Maharaja of J&K, (Sir Hari Singh), as the   true representative of the people of J&K. Instead, it recognized Sheikh Abdullah, leader of the National Conference, as the representative of the people. It is not that the Sheikh had put up such a claim or he was an elected leader of the people of Jammu and Kashmir, as a whole. It was the Government of India which, unfortunately, gave him that unique status. It also declared that the will of the people of J&K would be ascertained before its accession to India was made final.

           In October 1947, in the guise of Afridid Tribesmen, Pakistan invaded J&K to grab it by force. The Indian government took up this Pakistani aggression the UN’s Security Council in December 1947, stating, inter-alia, “…But in order to avoid any possible suggestion that India had utilized the State’s (J&K’s) immediate peril for her own political advantage, the GOI makes it clear that once the soil of the State had been cleared of the invader and normal conditions restored, its people would be free to decide their future by the recognized democratic method of plebiscite or referendum which in order to ensure complete impartially, might be held under international auspices”. In pursuance to this reference, the Security Council, in its Resolution No.48 of 1948, stated that “The government of Pakistan should undertake to use its best endeavours to secure the withdrawal from the state of Jammu and Kashmir of the Tribesmen and Pakistani
nationals not normally residents therein who have entered the State for the purpose of fighting and to prevent any intrusion into the state of such elements and any furnishing of materials and to those fighting the state”. 

       Pakistan did not comply with the above resolution. To add salt to the injury, it ceded about 20,000 sq.kms.of the State’s territory to China. Further, it merged large portions of its forcibly occupied territory, with the mainland of Pakistan. By 1960, it was very clear to India and even the Security Council that Pakistan had no intention to vacate the territories under its occupation. Not only that, Pakistan launched a fully armed attack on India in August 1965 to forcibly occupy the whole of J&K. Seeing all these developments, Indian government should have embarked upon the act of removal of Article 370 then and there. In fact, failure to do it, gave a wrong impression to the secessionists and Pakistani agents in India, especially in the Kashmir Valley, that Indian government itself did not want full integration of Kashmir and was willing to grant full autonomy to the Kashmiris. It also creates doubts in the international body about India’s
oft repeated claim that J&K is an integral part of India.  

       While Article 1 of the Constitution (India, that is Bharat, shall be a Union of States as specified in the First Schedule and such territories as may be acquired) reflects  the legal effect of the Instrument of Accession, Article 370 reflects the  assurance of obtaining the consent of the people before deciding final accession of J&K to India. As a temporary measure, Article 370 provides that: (a) The provisions of Article 1 and Article 370 apply to J&K by their own force. Other provisions of the Constitution will apply as the President may by order specify with the concurrence of the State Government; (b) The power of Parliament to make laws for J&K will be limited to (i) those matters of the Union List and the Concurrent List which the President may decide as corresponding to matters specified in the Instrument of Accession; (ii) such other matters as the President may decide with the concurrence of the State Government; (c) the President may
declare that this Article shall cease to be operative or shall operate with such modification, but recommendation of the Constituent Assembly should be obtained before issuing such an order. 

           In a way, Jammu and Kashmir was to be a Centrally administered area for the time being in consultation with the interim Government of J&K, recognized by the President. J&K’s Constituent Assembly met for the first time in 1951. In 1954, it ratified the accession of the State with India, made an internal Constitution for J&K, ( in lieu of Part VII of the Indian Constitution that is meant for administering other States), and was dissolved in November 1956. The promise of ascertaining the wishes of the people, in a way, stood fulfilled with the ratification of the States accession to India finally and irrevocably by the duly elected Constituent Assembly of Jammu and Kashmir. 

          The contention that even the Union Parliament cannot amend or repeal Article 370 is illogical and based on misunderstanding. If accepted, it will mean that Article 370 is a super-Constitution, something more sacrosanct that the Constitution itself. Such a proposition is absurd. Article 370 cannot be allowed to become a Bhasmasur. With Article 368, the Union Parliament is all powerful and competent enough to amend or repeal any Article of the Constitution, including Article 370. The only logical view is that, if the President wanted to abrogate or modify Article 370, before the Constituent Assembly was formed or during its lifetime, he had to obtain its recommendation. After the Constituent Assembly was dissolved in  November1956, there is no impediment in the exercise of the powers of the President to abrogate this temporary Article. 

           So far, the relationship between the Union Government and the State Government of J &  K has been regulated by an Order passed by the President, called the Constitution (Application to Jammu and Kashmir) Order 1954, under the provisions of Article 370 itself. As per this Order, the jurisdiction of the Parliament on J & K is exercised through the President. Once Article 370 goes, the 1954 order will also go and J & K will fall in line with any other State of India. 

           The experience of the past 58 years has shown that Article 370 has defied all good intentions. Since 1955, it has been proving counter-productive. It provoked a secion of the Sikhs to press their demand for Khalistan and Christians of the North-East to seek Indepdnence or complete autonomy.  Notably, Jammu and Kashmir  comprises Kashmir Valley, the Jammu area, Leh and Ladakh, (apart from the Pakistan occupied territories). The demand for “Azadi” is coming from the terrorist-infected Valley alone and even there not every one wants “Azadi”. The people of Jammu and Ladakh want Article 370 to go. A solution to Kashmir must, therefore, take into account the sentiments of the people in Jammu, Leh and Ladakh and also the repercussion in other States of India. 

     The demand for “Azadi” to Kashmiris within Indian Constitution means making an Islamic State within the secular State of India at the cost of the latter. Complete “Azadi” to the Kashmir Valley is impossible because (i) it will be a land-locked State and (ii) it cannot meet its own administrative expenses. It will have to fall back to Pakistan or any other Muslim country for sustenance, which will bring one more enemy on the head of the Indian Union.  What Kashmiris really need is security and good governance, not Azadi, which they have had in abundance, (because of Article 370). All talks of separate Kashmiri culture, ‘Kashmiriyat’ are bogus. Already, India has many sub-cultures and all of them are safe and sound, without article 370 or ‘Azadi’. In order to give fair treatment to people of all faiths in J&K, (Hindus, Muslims and Bouddhs), and providing them good governance, it is essential to remove Article 370, even at this late
stage. The recent agitation of Jammu people for land allotment to Amarnath Shrine Board for Amarnath cave pilgrims and counter agitation against it are just pointers to the shape of things ahead.

         After removal of Artricle 370, it necessary that J&K is governed as a Union Territory for some years to restore normalcy in every field and to rehabilitate the 4 lakh Kashmiri Hindus hounded out of the Valley and languishing in various places since 1990. Thereafter, it will be desirable to trifurcate J&K into three separate areas of administration, namely, Jammu, Ladakh and Kashmir Valley. After it is done, action should be taken to settle score with Pakistan recovering the areas under illegal occupation of Pakistan.

Yours sincerely,
Ram Bhai 
(Ram Gopal)