Prof. Om Gupta
Article 370 is an enigma for Indians in particular and the whole world in general. This article created in 1950 by the then Indian leadership headed by Jawahar Lal Nehru in a tearing hurry to appease world opinion continues to be Achilles’ heel of successive union governments of India. Not only the parliament but even the office of president of India has been compromised in this historic blunder. Let’s understand how.
Jammu and Kashmir is a Muslim-majority state of India. At the time of partition, it was broadly agreed upon that the then princely rulers will decide whether they want to remain in India or become a part of Pakistan. The religion of the majority of the population was one of the criteria. Despite being a Muslim state, the then ruler of J and K Maharaja Hari Singh was indecisive. His initial stance was that his state would remain independent but under the pressure of Nehru, he conceded to merge with India.
Pakistan waged an attack on India with the help of Afghan tribals. Maharaja got panicky and sought Indian help. Before Indian forces could take control of the situation, Pakistan forcibly occupied a large portion of J and K that it continues to control. It is known as Pakistan occupied Kashmir (PoK). At this juncture, the United Nations intervened and enforced a ceasefire. Nehru agreed to not only this but also accepted a plebiscite to decide where the majority of population go to India or Pakistan. India later took a position that successive J and K Assembly elections have established that the people of Kashmir believe in Indian Constitution and the democratic system by voting in elections.
Coming back to Article 370, it was added in the Constitution by the Constituent Assembly as a temporary measure and its sole purpose was to control the monarchy of Maharaja Hari Singh. Article 370 clearly states that the President of India has the sole power to make any law but with a condition. He will have to take the concurrence of the government of Sheikh Abdullah on March 5, 1948. The Maharaja had appointed Sheikh Abdullah, the Prime Minister of J and K. But the million dollar question what was the need to create Article 370. Why Maharaja’s rights were not confiscated like it happened in case of other princely rulers. More than 500 such rulers had signed the annexation conditions. It is surprising why an exception was made in the case of Maharaja Hari Singh. It was a blunder on the part of then federal Government. The situation was made more confusing by imposing the condition that the President of India could could armed laws in J and K as per Article 370 but only after taking the consent of the J and K government.
Shockingly enough, no debate, no discussion was done by the historians, legal experts, constitutional scholars chose to remain silent. Article 370 would have died a natural death when J and K Constituent assembly passed a resolution to dissolve the monarchy of Mahraja Hari Singh on 29th August, 1952. Along with this crown prince Karan Singh was made the Sadar-e-Riyasat (Head of the state). History will continue to ask why Indian government opted to look the other way at this development.. But Nehru ordered to arrest Sheikh Abdullah on August 9, 1953 and put him behind the bars. Again the thinkers of this country chose to remain silent spectators.
Perhaps Abdullah dethroned Maharaja because he wanted to seize power or might be as per the suggestion of the UN adviser Owen Dixon, he wanted to declare J and K as Islamic Republic of Kashmir. Whatever might be the actual facts, the day Maharaja was dethroned and monarchy was abolished Article 370 became redundant. because as per the Constituent Assembly decision, the President could only seek the consent of Maharaja to amend laws.
Now there is no Sheikh Abdullah, no Maharaja’s monarchy and not even the Constituent Assembly. In January 1957 the Constitution of J and k was adopted by the J and K Assembly. According to its section 3, J and K is an integral part of India and will always be so. Then what is the relevance of 370. Government of India is fully empowered to amend Article 370 and remove all confusion and chaos. That is the only solution.
(The author is Sr Journalist)
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