Article 370 must go
by Sandhya Jain on 03 Dec 2014 7 Comments

Article 370 has been distrusted from its inception; but until now it could never be discussed seriously because the vested interests in favour of retaining it seemed invincible. Now, however, though it is far from being expunged from the Constitution, a serious debate has been joined. Last December, the then Gujarat Chief Minister Narendra Modi visited Jammu and prodded the ordinary citizens of the State to seriously discuss if the Article has benefitted or harmed them; he opened the door for fresh thinking on the matter. Unlike other leaders opposed to Article 370, Mr Modi did not attack it or seek its abrogation. He merely hinted that any psychological advantage it seemed to give the State might be illusory from the standpoint of ordinary citizens.


Many citizens thinks this debate is necessary as Article 370 is regarded as the reason for separatist tendencies in the Kashmir valley and for the alienation of its Muslim population from the rest of the country. The nation has been keen to have this debate especially after the forced exodus of the small Pandit community from the valley in 1990, but the hold of so-called secular political parties over the polity has been so pernicious that sober voices could not be heard.


In this context, I would like to raise a few points. Historians must seriously research if Lord Louis Mountbatten’s remaining in India as the first Governor General was part of a dubious deal with the British Empire. If an Indian had held the post, Sardar Patel might have accomplished the integration Jammu & Kashmir on the lines of the other kingdoms. To my mind, there is a link between Mountbatten staying on in India and Jawaharlal Nehru taking exclusive charge of J&K; the war launched by Jinnah and the taking of the issue to the United Nations so that Pakistan could retain the territory it had grabbed. 


Mountbatten undermined the Instrument of Accession signed by Maharaja Hari Singh by insisting there must also be a plebiscite on the issue. By agreeing and insisting on the plebiscite, Nehru actually endorsed the two nation theory. He was too intelligent not to realise this, so there was clearly some hidden compulsion that needs to be brought out by historians.


I my add that I am personally convinced that the signal to Jinnah to invade J&K was given by Mountbatten, who was Commander in Chief of the Armies of both India and Pakistan. Some evidence has since come out to substantiate this, but it has not been properly collated.


When Mountbatten finally left India, and Sheikh Abdullah made it impossible to complete the drafting of the Indian Constitution, and Nehru was forced to order his arrest in 1953, it is inexplicable why the Government of India did not end the charade of a separate Constitution of J&K; after all, other Princely States gave up this right. The new leaders of the State were reasonable persons who would have gone along. That Nehru continued with the separate Constitution and also with Article 370 puts the blame for everything that has gone wrong squarely on his shoulders.


A cursory look at the history of the period shows that Article 370 was inserted in the Constitution of India in 1950 when Maharaja Hari Singh was still the king, with a view to undermine him by empowering the President of India above him. After the Accession, the Maharaja surrendered control over defence, foreign affairs and communications to the Union of India and retained all other powers.


To accommodate the ambitions of Sheikh Abdullah, Sardar Patel persuaded Maharaja Hari Singh to abdicate in favour of his son. Then in August 1952 Sheikh Abdullah abruptly got the Constituent Assembly of J&K to abrogate the monarchy. Thus all powers retained by the Maharaja since the Accession in 1947 lapsed that very day.


This is after the promulgation of the Indian Constitution in January 1950 and before the promulgation of the J&K Constitution in January 1957.


Senior advocate Bhim Singh argues that Article 370 became irrelevant with the abolition of the monarchy because it was a temporary measure only to rein in the Maharaja. Once the monarchy ended, J&K stood fully merged into the Union of India as the conditions inserted by the King at the time of Accession were automatically terminated.


Article 370 expressly states that it shall apply in respect of the Government that was constituted by the Maharaja of J&K – which means Sheikh Abdullah, who was appointed under the Maharaja’s Proclamation of March 5, 1948. It says that no law on J&K shall be applicable to J&K unless approved by the Government of J&K (read Sheikh) constituted by the Maharaja of J&K. It was only to curtail the powers of the monarch. When the monarchy was thrown out, Article 370 became infructuous.


Under Article 370(3), “the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify”. It was provided that the President would require a recommendation of the State Constituent Assembly. But this provision became redundant once the State Constituent Assembly ceased to exist. This happened in 1957 when the J&K Legislative Assembly was constituted.


Then, Section 3 of the Constitution of J&K says, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India”. Similarly, Article 1 of the Constitution of India refers to the First Schedule which mentions J&K at serial no. 15, “The territory which immediately before the commencement of this Constitution was comprised in the Indian State of Jammu and Kashmir”.


To my mind, the presence of two documents – instead of one overriding Constitution for the whole of India – conveys a sense of artifice in the relationship and instills a sense that one side can invoke the right to walk away. This is why it is imperative that the Article 370 and the separate State Constitution must go. Syama Prasad Mookerji had the wisdom and foresight to understand this.


There is also a view that Parliament under Article 368 has absolute power to amend any provision of the Constitution of India. Under Section 3 of J&K Constitution read with Article 1 of the Constitution of India, J&K (entire J&K) including POK, Gilgit-Baltistan is integral part of the Indian Union. This is the consensus of the Indian Parliament as exemplified in the resolution of 1994 under the leadership of then Prime Minister Narasimha Rao. Parliament does not have the right to amend the basic features of the Constitution, but Article 370 is on record a “temporary provision” and cannot be protected under Article 368. Hence, Article 370 can even be amended to empower Parliament to legislate in respect of J&K.


Article 370 is infructuous according to the provisions of the Indian Constitution, the Constitution of Jammu & Kashmir, and because the raison d’etre for its promulgation have long disappeared in the light of certain historical developments which cannot be reversed. No temporary provision should be allowed to persist for over half of a century; it must go.


At some stage, an Article 35A was surreptitiously added as a tail of Article 370 by Parliament to bluff the people of J&K. It was inserted in the Appendix and most lawyers do not know of its existence, let alone ordinary citizens. This has reputedly made it impossible to touch the separate status of J&K, but the Article has dubious constitutional validity and is liable to be challenged.


It is well known that from time to time various forces in the valley question the State’s integration with India. Some years ago, even Chief Minister Omar Abdullah challenged the legality of the Accession, deploying peculiar language like ‘merger’ and so on; he was not challenged or rebuked by the UPA.


The bottom line in my view would be political will, combined with consciousness among ordinary citizens that excessive privileging of hereditary elites is detrimental to their own progress and well-being. As the nation evaluates the utility of various political dynasties across the nation, some of the holy cows nurtured by them will also come under scrutiny.


This is the text of a presentation made at a seminar organised by Kashmir Samiti at Delhi on 30 March 2014

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