Lt Col Mukund Singh Jamwal (Retd)
Article 370 of the Indian Constitution has always been a red rag to Kashmiri politicians as well as Kashmir centric politicians . A mere mention of this article invites reactions of fast and furious type from these politicians. The reactions range from Omar Abdullah’s , ” without article 370 Jammu and Kashmir would not remain part of India” to , “Article is an emotional bridge between India and Kashmir” , Muzaffar Baig’s ” No power on earth can remove Article 370 from the constitution” and Mufti Mohammad Sayeed, ” Article 370 is the only basis for accession of J&K to India” etc etc. With elections having been announced to the State Assembly , all these politicians who inspite of having ruled this State turn by turn for the past six decades, have nothing to show in terms of development and economic upliftment of the people . They have found a convenient topic to divert attention from their misdeeds and misgovernance.
What is astonishing is that while the BJP has been advocating debate over this article , the Kashmiri politicians are averse to even a mere mention of the same. While saying that this article is prtotector of Kashmiri identity these politicians have failed to explain as to how it is so. Is having a separate flag , separate constitution and separate penal code indication of Kashmiri identity? If that is so, then what about the identities of Tamils, Telgus, Malyalis, Maharashtrians, Bengalis and a number of other castes and creeds living in India who do not have anything like article 370 to protect their identities. Is Kashmiri identity or Kashmiriyat so fragile that it needs a special article to protect itself? Also does the Jammu and Kashmir State comprise of only the Kashmiris? What about the identities of other inhabitants of this State e.g. the Jammuites and Ladakhis etc. who feel that their identity is best preserved if the State is fully integrated with the Indian union.
One really marvels at the propensity of the Kashmiri politicians to brazenly project their own viewpoint as the demand of the complete State of Jammu and Kashmir. Leaders of both the Kashmir based parties , National Conference and PDP , tend to treat the whole State of Jammu and Kashmir as their fiefdom. They tend to forget that the State of Jammu and Kashmir is not comprised only of Kashmir. Knowing very well that the whole of Jammu province and Ladakh – barring the appeasement specialists and the ever so secular politicians – are bitterly opposed to Article 370 and want its abrogation , they still talk of the secession of J&K State from India. They also know fully well that even the Gujjar and Bakarwal community of the whole State as well as people belonging to the hilly areas of Kashmir are not in favour of retention of Article 370.
It therefore transpires that clamour for retention of Article 370 is basically amongst some of the misinformed inhabitants of only the Kashmir valley who according to observers constitute only 2% to 5% of the State of Jammu and Kashmir. And here too it is basically the political class which is more vociferous because it is primarily they , who are empowered by this article to rule the State without any accountability , so much so that they don’t even want to have a debate over the article in question.
Under the circumstances , It becomes imperative for us to delve into history of Article 370 , which was intended to be a temporary provision in the Indian Constitution , meant to fade out with time but which has been made a holy cow by the self serving political class and is now being termed as the emotional link between the State of J&K and the Indian Union.
In 1947, the State was invaded initially by Pakistani tribals trained and led by Pakistani army officers and subsequently by the Pakistani regular army itself. The Maharaja asked India for help and also signed the Instrument of accession. It was the same document which had been signed by all the other Rajas and Maharajas of the country for joining their States to the Indian dominion.
Once the Instrument of accession was signed by the Maharaja , accession of the State with India was complete like all the other States. But , no , this is where Nehru’s ego and hatred for the Maharaja and love for Sheikh Abdullah came to the fore. Before Aug 15, 1947 , Maharaja Hari Singh had placed Nehru under house arrest , when he had gone to Kashmir in support of Sheikh Abdullah , who had been agitating against the Maharaja and had been imprisoned by him. This had infuriated Nehru , who was not a person to forget such an insult. In order to spite the Maharaja , he announced that even though the Maharaja had signed the Instrument of accession , India would still like to ascertain the wishes of the people of J&K regarding the accession . Sheikh Abdullah , who nurtured designs of securing J&K State as his fiefdom , exploited Nehru and insisted on special status for the State on the plea that majority of the population were still not fully prepared for acceding to India.
This was far from the fact. By the time Indian Army flew into the State to repel the Pakistani aggression , the raiders had reached in the vicinity of Srinagar airport. They had left a trail of loot , murders and rapes throughout the valley . The people were highly scared of the Pakistani army and welcomed the Indian army with so much of relief. At that time their biggest enemy was Pakistan and they all were whole heartedly supportive of accession with India. Sheikh Abdullah who had in the meanwhile been appointed the Prime Minister of J&K State by the Maharaja , did support accession with India and therefore wanted to claim his pound of flesh.
Nehru was amenable to Sheikh’s demand of giving special status to the State and wanted him to discuss the matter with Dr. B.R.Ambedkar , who was the Chairman of the Constitution Drafting Committee. However, Dr Ambedkar was furious when he heard of the proposal and told the Sheikh bluntly , ” You wish India should protect your borders , she should build roads in your area , should supply you food grains and Kashmir should get equal status as India , but Govt of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal would be a treacherous thing against the interest of India and I as the Law Minister of India will never do it.” All Ambedkar devotees who exploit his name for vote catching and are biggest supporters of retention of Article 370 today must ponder over their stance and at the least agree to debate the merits/demerits of this article to honour his sentiments.
It is worth noting however , that the framers of the Constitution were quite clear that Article 370 was a temporary or transitory provision which was to fade away with the passage of time. It was accordingly put under Part XXI of the Constitution of India which deals with “Temporary , Transitional and Special provisions “. The fact is that , it is basically the politicians who have their own vested interests in ruling over their fiefdom without any accountability who do not even want to have even a debate on this article. Apart from saying that it is an emotional bridge or preserver of Kashmiri identity and threatening secession , these leaders cannot even explain which provision of the article are beneficial to the common man and whose removal would lead to loss of Kashmiri identity.
Article 370 grants special autonomous status to J&K State . The State has a separate flag and a separate constitution. The provisions of the article imply that except for defence , foreign affairs , communications and ancilliary matters (matters specified in Instument of accession), no law of the Parliament can be made applicable to the State without State Govt’s concurrence. Residents of the State have different laws related to citizenship , ownership of property and fundamental rights.
The biggest disadvantage of this article is that it is the main cause of separatist movement and terrorism. It basically delinks the State from the rest of the country. It helps the mischievous elements to constantly remind the innocent and gullible people that accession of the State to India is not complete. This was amply proved in Apr 1958 when the Plebicite Front had passed a resolution citing Article 370 saying that “J&K State has not acceded to any of the two dominions , India or Pakistan. Therefore it will not be right to call Pakistani invasion on J&K as an attack on India.”
The citizen of the State is affected by the fact that Part IV (Directive principles ) and part IV A of the Indian constitution are not applicable to the J&K. Fifth schedule pertaining to the administration and control of schedule areas and schedule tribes and 6th schedule pertaining to administration of tribal areas is not applicable to the State. It is the only State which does not have to give detailed record on the money flowing in the State and where and how it is used. Even the right to education is not applicable to J&K. Many other laws like Panchayat Raj amendment act empowering the Panchayats is not applicable to the State.
A thorough scrutiny of Article 370 would reveal that there is nothing in it for the benefit of the common man. On the contrary it keeps the common man segregated from India , depriving him of the many beneficial laws passed by the Indian parliament from time to time. The act only empowers the political class to enjoy unbridled power and authority without any accountability whatsoever. That is why they are loathe to even a mere mention of this article.
Earlier under this act , even the Supreme court, The Election Commission and the Comptroller and Auditor General of India did not have any jurisdiction over J&K and the Governor of the State was known as Sadar-i-Riyasat while the Chief Minister was called the Prime Minister. Over the years that has mercifully been rectified. Needless to say that two prominent formers Chief Ministers , Bakhshi Ghulam Mohammad and G N Sadiq were in favour of removal of Article 370.
It is laughable when in all seriousness , some of the worthies opposing removal of Article 370 , proclaim that this cannot ever be removed because under Article 370 (3), consent of the State legislature and the Constituent Assembly is mandatory and since the Constituent Assembly has been dissolved this article cannot be abrogated. They all must remember that in India , Parliament is Supreme . It is paramount and is vested with all the powers of making laws or rescinding them. That , however is a bridge which shall be crossed once consensus for the article’s abrogation has been achieved. For that to happen , we must insist on an open and threadbare debate not amongst the politicians but the general public of J&K , particularly amongst those of Kashmir region.
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