Jawarhalal Nehru himself had said that the importance of the Article would fade with the passage of time. Farooq Abdullah, president of the ruling National Conference, warned the people during electioneering that if the BJP was voted to power, it would abrogate Article 370 which gave special status to Jammu and Kashmir. The people of the State have rejected the National Conference, which had been dominating the political scene since 1939, outright in the 2014 Lok Sabha election, and voted for the National Democratic Alliance led by the BJP. Farooq himself tasted defeat for the first time in his long political career.
The Congress in its election manifesto promised to separate Ladakh from the territory of J & K and give it a separate legislative Assembly. The enraged people voted for a BJP candidate, Thupstan Chhewang, for the first time, sending a clear message to politicians meddling with their future. The impugned Article has been the biggest impediment to the integration of J & K into the Indian Union. While Article 370 gives Kashmiris equal rights all over India, non-Kashmiri Indians do not have the same rights in Kashmir. This seemingly privileged position has actually put the Kashmris, particularly its youth, in a position of disadvantage. The economic liberalisation and industrial growth the nation had witnessed did not reach Kashmir because of this discriminatory legislation. The people have come to realise the shortsightedness of their political leaders and expressed their resentment through the ballot box.
India’s 560-odd princely States, at the time of independence in 1947, were given the option of acceding to either India or Pakistan. The majority of them were Hindu kingdoms embedded within the Indian hinterland and they acceded to India. Kashmir had a Hindu Maharaja, Hari Singh, with a Muslim majority, and its territory bordered both India and Pakistan. Even as the Maharaja was toying with the idea of an independent Kashmir, Pakistani troops disguised as Pathan tribesmen attacked the western areas of the State and occupied almost one-third of its territory in October 1947. Hari Singh decided to accede to India and appealed to Nehru for the deployment of Indian military forces to push back the invaders. He signed the Instrument of Accession on 26 October 1947, in the same form as was executed by the rulers of the other princely States which had acceded to India following the enactment of the Indian Independent Act, 1947. Jammu and Kashmir thereby became legally and irrevocably a part of the territory of India. Kashmir is strategically important to India because every land invasion of the country has come from its north-west frontier. The accession of Jammu and Kashmir took place under peculiar circumstances. A war was going on within the State and a ceasefire was agreed upon. Part of the State was still held by Pakistani forces. Under the circumstances, Nehru wanted his Law Minister B R Ambedkar to draft an Article with special provisions for J & K because of the circumstances under which the accession took place. Ambedkar was not convinced. Hence the task was entrusted to his deputy, Gopalaswami Ayyangar, who had been the Prime Minister of J & K under Maharaja Hari Singh for more than six years. On 17 October 1949, Gopalaswami introduced a special Article (306-A) governing the relations of J & K in the Constituent Assembly. In the final draft of the Constitution it was numbered 370.
All the provisions of the Article were temporary in nature with a special provision (Section 3) that the President might issue an order to end its operation. The Article was adopted by the Constituent Assembly without much discussion because Nehru wanted it. Under the Constitution adopted in 1949, States in the Indian Union were classified under Part A, B, C and D. Jammu and Kashmir was placed under Part B States. Article 238 of the Constitution, which dealt with the administration of States in Part B of the First Schedule, was deleted in the wake of the reorganisation of States in 1956. Of the Articles 369 to 392 specified as “temporary, transitional and special provisions,” under Part XXI of the Constitution, 379 to 391 had been deleted by the Seventh Amendment in 1956. Article 371 (A to I) on nine other States are under “special provisions.”
It is meaningless to continue the “temporary and transitional” Article 370 indefinitely when it confers no advantage to the people of Jammu and Kashmir. It only benefits political parties to build vote-banks, besides keeping alive the sense of alienation of the people. They should realise that the limited autonomy Article 370 bestows is insignificant compared to investments and developments that would accrue once this discriminatory Article against the rest of the people of India is removed. It may be pointed out that Hyderabad or Junagadh were not given any special status, but the people of both States prospered as equal citizens of the country.
The contention of Omar Abdullah, Chief Minister of J & K, that Article 370 cannot be deleted because the State does not have its Constituent Assembly any more is not correct. It is true that Section 3 of the Article has a clause that the recommendation of the State Constituent Assembly “shall be necessary” before the President issues a notification declaring that Article 370 “shall cease to be operative.” Section 167 of the Jammu and Kashmir Constitution framed by the State’s Constituent Assembly says that the State government cannot amend Section 3 of its Constitution and recognises the authority of Indian Parliament to legislate on matters and that the State “is and shall be an integral part of the Union of India.” And Article 368 of the Indian Constitution empowers Parliament to make any changes in it in accordance with procedure laid down in this article. Of course, this would be subject to judicial review on the issue of whether the basic structure of the Constitution has been changed. The irreconcilable differences between India and Pakistan on the future of the State had cost both the nations dearly. Indian military presence in Kashmir had become a permanent fixture as Pakistani troops under the guise of guerrilla infiltrators boldly violated Indian sovereignty across the Line of Control. How Prime Minister Narendra Modi, who had established rapport with Pakistan’s Prime Minister Nawaz Sharif by inviting him to take part in his swearing-in ceremony in New Delhi on 26 May, would resolve the issue is far from clear.
Though Kashmir did not figure in the talks between the two Prime Ministers, Pakistan questions the legitimacy of Kashmir’s accession to India and doubts if Hari Singh ever signed the Instrument of Accession. According to international law, every treaty entered into by a member of the UN must be registered with the Secretariat of the United Nations. For whatever reason, India has not presented the Instrument of Accession signed by Hari Singh to either the UN or to Pakistan. That does not void the accession and India has the constitutional right as well as the duty to protect the people of Kashmir from invading infiltrators from across the border. India cannot afford to lose Kashmir, its only Muslim-majority State, to maintain its secular identity.![Avatar]()
- Adding to my earlier comment
In The Statesman dated 07 Dec 2013, Mr Rajinder Puri had written an Opinion piece (http://thestatesman.net/news/2... on the same topic. I take the liberty of reproducing my comment under Mr Puri's article:
“The Instrument of Accession was executed by Maharajah Hari Singh, ruler of the erstwhile princely state of Jammu and Kashmir, on 26 October 1947. Article 370 became operative from "the 17th day of November, 1952", i.e., long after the "Accession". Professor Subramanian Swamy also pointed out during a TV discussion that the Article 370 was enacted long after the accession, and he argued that the Article 370 was not part of the Instrument of Accession. Further, the Constitution clearly states that Article 370 consists of “Temporary provisions with respect to the State of Jammu and Kashmir.” Therefore, how can it be considered to be a permanent or immutable feature of the Constitution of India? Will Mr Rajinder Puri please clarify?”
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Article 370 conundrum -- Sam Rajappa
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