Author: Saadut
•6:42 PM

"I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion..." (Selected works of Jawaharlal Nehru, Vol. 18, p. 418).

The ‘accession’ of Jammu & Kashmir with India on 26th October only happened for three subjects; defense, foreign affairs and communications. Article 370 (originally put as Article 306 A) was agreed upon by between teams led by Jawaharlal Nehru and Sheikh Abdullah after five months of discussions, and most of these discussions kept in mind the UN resolutions and the International nature of Kashmir dispute. Keeping in view India’s International obligations (and promises) for a settlement on Kashmir, the word “Temporary” was fixed to this article, pointing to the expiry of the article as soon as Kashmir was resolved (via UN mandated plebiscite).

The rants of Indians extremist right winged parties against 370 notwithstanding, the founder of rightist Jana Sangh, Shyama Prasad Mookerji, who was a minister in Nehru’s Cabinet, was privy to the discussions and formulation of the Article 370 document. He was in full agreement to 370 till he was a minister with New Delhi, his change of heart coming only in 1951 when he had already parted ways with Nehru and formed the extreme right Jana Sangh. And whatever noise BJP may be making right now, fact is it did nothing to 370 when it was in power in New Delhi.

While Article 370 might give the impression that the state of Jammu & Kashmir enjoyed any degree of autonomy, in reality Kashmir never saw any autonomy or self governance rights from New Delhi. In fact Kashmir was always treated lower than other states in India and deprived of all democratic, legislative and economic rights available elsewhere. And this erosion of rights in Kashmir was done using Article 370 as a sleeve, via which New Delhi extended its proxy hand to control Kashmir. While initially 370 was used as a tool by India to get hold of Kashmir with the lure of autonomy and demographic safety, the same act had been carefully devised by New Delhi to allow control of Kashmir as a colony, devoid of political powers

Crux of what Article 370 says:

The provisions of Article 1 (of Indian Constitution) and of this article shall apply in relation to that State” (1-c)

The power of (Indian) Parliament to make laws for the said State shall be limited to those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India……” and “such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation…” (1 - b, i & ii).

Article 1 of the Indian constitution is applied on Jammu and Kashmir via Article 370 (1-c), J&K being mentioned along with other states of Union in the 1st Schedule as Article 1 (2). Hence abrogation of 370 would also mean cessation of application of Article 1 on Jammu & Kashmir, which in turn would open the doors of its secession from the Indian Union.

And since “The power of Parliament to make laws for J&K shall be limited … in consultation with the government of J&K”(1 - b, i & ii) it was never difficult for New Delhi to pass such laws using governments in J&K that it has always nominated, nurtured and controlled via proxy elections.

Political freedom in Kashmir was always trampled by New Delhi to install puppet governments who could then act as faithful employees of New Delhi and work in accordance with India’s plan in Kashmir, including that for erosion of Article 370.  Balraj Puri claims that in 1953 he advised Jawaharlal Nehru to extend political freedom in Kashmir. Nehru replied “we have gambled at the international stage on Kashmir, we cannot afford to lose it. At the moment, we are there at the point of the bayonet. Till things improve, democracy and morality can wait.” (Kashmir Towards Insurgency, page 46).  “…Chief Ministers of that State had been nominees of Delhi. Their appointment to that post was legitimised by the holding of farcical and totally rigged elections in which the Congress party led by Delhi's nominee was elected by huge majorities."(Ex Governor of J&K B.K Nehru in ‘Nice Guys Finish Second’ 1997 ; pp. 614-5).

The 3rdclause of Article 370:

“Notwithstanding anything in the foregoing provisions of this article, 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………Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification” (370-3).

Hence Article 370 can never be abrogated because it would require the “concurrence” of State Constituent Assembly that ceased to exist since 1957. Also Article 370 cannot be abrogated or amended by amending provisions of Article 368 of the Indian Constitution, since this article has a clear provision regarding J&K wherein ‘(no constitutional amendment) "shall have effect in relation to the State of Jammu and Kashmir" (unless applied via Article 370 by a Presidential Order)’. And since even this amendment would require the concurrence of the state government and final ratification by its Constituent Assembly, it would not be technically possible.

Ironically much hype in India has been given to the land ownership rights in Jammu & Kashmir bestowed only on state subjects here. But then almost similar rights are in place in Himachal Pradesh and states of the North East in India, aimed at protecting ethnic identities and land ownership in these places. Be it unknown to most Indians that these land ownership rights existed in Kashmir even before India was free and have not been specially created or conferred with Article 370. And women of J&K do not lose their domicile right by marrying non-state subjects, contrary to the lies being peddled on Indian media.

Even though Article 370 had been put in place as the only bridge linking India and Kashmir, New Delhi had already planned ways and means to erode this relationship. On 4th December 1964, Indian Home Minister G. L. Nanda is quoted to have said “(370) would be used to serve as a tunnel in the wall to increase India’s grip on Kashmir”. And it was this “tunnel in the wall” that India has been using to bore deep holes into the foundations of J&K. There have been countless occasions when India used its proxies in the Jammu & Kashmir to push for amendments or reduced this Article 370 to a hollow shell. 

On February 14, 1954 the then Home Minister of Jammu and Kashmir D.P. Dhar, moved a motion ‘in order to enable the Centre to discharge its responsibilities which devolve upon it under the Constitution, those provisions of the Constitution of India, which may be necessary for the purpose, should be made applicable to the State in an appropriate manner’ and got it passed in the Constituent Assembly. Pertinently Sheikh Abdullah had already been dismissed & arrested by Nehru on 8th August, 1953 to be subsequently arrested for 11 years. D.P Dhar was suitably rewarded by India in later years. In another example of how New Delhi treated Kashmir as a colony befit of political rights, the President of India on 30th July 1986 made an order under Article 370, extending Article 249 of the Indian Constitution to Kashmir, in order to empower Parliament to legislate even on a matter in the State List, on the strength of a Rajya Sabha resolution.  Former secretary law and parliamentary affairs to J&K Government in ‘Kashmir Times’ (20th April, 1995) described how this ‘manipulation was done in a single day’ against the Law Secretary's advice and ‘in the absence of a Council of Ministers’ with the concurrence of New Delhi’s appointee, Governor Jagmohan. 

In contrast to popular perception in India that Article 370 was promulgated to bestow any autonomy upon J&K, fact is that the State of Jammu & Kashmir was autonomous in governance right from British times, even while common people had been deprived any human rights under Dogras, as they continue to be derived of even now un India. Article 370 was only used as an instrument by India to access Kashmir, and gradually whatever autonomy the state had enjoyed even before ‘accession’ was eroded stealthily by Indian mechanizations’ in concurrence with their political nominees here. 

Article 370 is an empty drum now, which political parties whip and beat whenever they have to score electoral points.  India is not doing any favor to Kashmir by retaining this hollow instrument in place; it is only doing itself a favor by retaining the only constitutional link between India and Kashmir. Not to forget that Kashmir is not like any other state in India, it is an International dispute that India has committed to redress and resolve. Any attempt by Indian politicians to play with 370 will only force open questions about the future of Kashmir. 

3rd December, 2013

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