With the end of WWII, it became clearer than ever that India was going to get independence from British Rule. Under the Government of India Act, 1935 the foundation was already laid for an electoral democracy in United India. In winter 1945-1946, elections by “limited franchise”, though, were held for twelve provincial assembles & central assembly of “United India”. Congress won 923 & Muslim League 425 Provincial Seats. The elections gave 90% non-Muslim & near to 100% Muslim votes to Congress & Muslim League, respectively. Of total 102 seats, Congress won 57, while Muslim League got 30 seats for the central assembly. Though Congress still emerged as the largest party in those elections, it also proved that “the Muslim League had indeed won the right to be considered the sole and undisputed representative of the Muslims of [United] India”. [Ranbir Vohra, the Making of India: A Historical Survey (M E Sharpe, Armonk, New York & London, England, 1997) page 179, emphasis added] The central assembly was later to become Constituent Assembly of “United India” assigned with the task of framing the Constitution for it [United India]. But the members to the Constituent Assembly of United India were ‘elected’, under the British Cabinet Mission Plan of 1946, by the Provincial Assemblies according to proportional representations by single vote. As the Partition of India became inevitable which led to “reorganisation” of the provinces of Bengal & Punjab between two Dominions of India & Pakistan, total membership of Congress & Muslim League in June 1947 for the Constituent Assembly was, respectively, 299 & 73. Under Mountbatten Plan of 3rd June, 1947, the Indian Independence Act, 1947 passed by the British Parliament with “mutual consent” of Congress & Muslim League, partitioned India into two separate sovereign Dominions of India and Pakistan. The failure of British Cabinet Mission Plans of 1946 to bring unity between Congress & Muslim League, the two major recognised parties, dissected the Joint Constituent Assembly of India into two separate Constituent Assemblies of India & Pakistan. In the light of the rapid developments, 28, mostly non-Muslim members of Muslim League from West Punjab, East Bengal (formerly East Pakistan, now Bangladesh), Sindh, NWFP & Baluchistan, joined Constituent Assembly of India. Four members of “J&K Government” of pro-India, National Conference, too joined Constituent Assembly of India but very late.
The first meeting of the Constituent Assembly of India was held in Constitution Hall, New Delhi on 8-12-1946 though formally it began its business on 18-12-1946. After almost three years’ time consumed in deliberations & discussions among its 299 members, it finally adopted the Constitution for Republic of India on 26-11-1949 which became effective from 26-01-1950. The members were representatives “elected” by the Provincial Assemblies. J&K was not represented from the date of commencement of its proceedings till 16-06-1949 when four members, Sheikh M Abdullah, Mirza M Afzal Beigh, Mawlana M Syed Masoodi & Moti Ram Bagda joined the proceedings as “representatives” of the people of J&K. In the words of Dr. Rajendra Prasad, Chairman, Constituent Assembly of India, “circumstances have been such” which delayed their participation in the proceedings of the Constituent Assembly. What were those “special circumstances” are discussed next.
The Indian Independence Act, 1947 that ended British suzerainty over 565 Princely States from “appointed date” of 15th August 1947 read with speeches of Lord Mountbatten, & Lord Listowel, respectively, on 25-07-1947 & 16-07-1947, before Chamber of Rulers (of Princely States) & House of Lords, recognized the Rulers’ right to accede to either of the two Dominions. As the division of India was going to take place according to communal allegiance; the predominantly Hindu provinces were to form the Union of India, and the predominantly Muslim provinces were to form Pakistan”. The Rulers of the States had to make their choice, thus, in favour of either of the two Dominions well before 15th August, , keeping in mind the demographic, “economic and geographical links” of the State” with either Dominion.
While most of the Hindu dominated princely States had desired to accede to Indian Dominion, there was “problem” with the Rulers who wanted to remain independent, for example, Nizam/Ruler of Hyderabad desired to remain independent & Ruler of Junagarh wanted to join Pakistan; both the wishes were impracticable for two broad reasons: (1) Both had overwhelming Hindu population & (2) completely surrounded on all sides by Indian Dominion. But the Ruler of J & K State had somewhat “different problem” of making a decision. Some argue that he wanted to remain independent but this argument is convincingly belied by a chain of developments following Gandhi Ji’s visit to Kashmir on 1st August, 1947. Pakistan, as with Sheikh Abdullah, was not Maharaja Hari Singh’s choice either, but the viceroy had warned him about consequences of his attitude. On evidence, it seems he had only intent of joining Indian Dominion. But why it took him so much time to “sign” instrument of accession on 26-10-1947 with India? Copy of instrument of accession was not made public till 1971, nor was it attached with the White Paper on Kashmir tabled in Parliament in 1948, nor was it attached with India’s complaint against Pakistan in United Nations? Was he then waiting for, or expecting, something to happen? Like how Radcliffe Commission was going to decide about the fate of Gurdaspur district of Punjab which was only link connecting India by road to Kashmir? These are the questions that have been raised & debated since that time.
Earlier his PM Ramchandra Kak had offered Standstill Agreement to both India & Pakistan. As India signed standstill agreement with Ruler of Hyderabad, Pakistan signed it with Maharaja Hari Singh’s government, though India declined to accept it.
Pakistan did not accept accession of J&K with India “signed” by Hari Singh on 26-10-1947. India argued that accession was valid as the Ruler had requested for its military help to fight back Pakhtoons who had intruded into Kashmir via Baramulla on 23-10-1947 & that the military help was extended only after he, the Ruler, signed Instrument of Accession/IOA with India. So, J&K became a part of India by virtue of IOA & that Pakistan was an “aggressor” only, India claimed. The United Nations where the matter was taken by India itself on 1st January, 1948 after hearing both the sides at length declined, via a number of Resolutions, to declare Pakistan “aggressor”. Instead, it held that JK was a “dispute” between the two countries the resolution of which was to be achieved by holding a free & impartial plebiscite under UN auspices. Thus, finding itself caught on a wrong foot by UN Resolutions, India “regretted” its decision, and wanted to come out of UN tangle of “unusual & abnormal” conditions in the words of Gopalaswami Ayyangar. The argument is clearly supported by the speech of N Gopalaswami Aiyangar, architect of Article 370, then item no. 306-A, in the Constituent Assembly of India, which he delivered on the date of its passing on 17-10-1949. He said:
“……..We are entangled with United Nations in regard [to] Jammu and Kashmir and it is not possible to say now when we shall [be] free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled. Again the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the Sate to decide for themselves whether they will remain with the Republic or wish to go out of it……….” (The Constituent Assembly Debates (Proceedings) Volume X, 154-293-294 (PDF), No. 10, pages 423-427; also cited in H.O. Agarwal, Kashmir Problem: Its Legal Aspects, (Allahabad, Kitab Mahal, 1979) page 126)
But how could India come out of this UN tangle, since it was signatory to the UN Resolutions? See next.
Preparations for digging out a linkage tunnel between JK & India:
Unlike that of other States, the Maharaja conceded to three subjects of Defense, Foreign Affairs and Communication with India and put stringent conditions in clauses 4 & 7 of Instrument of Accession/IOA. It was in the light of those conditions put in IOA and accepted by India, and in view of the fact that the settlement of the Kashmir-Issue was pending final disposal with UN that a “conduit pipe“ to link J&K “constitutionally” with India was found and applied by Indian leaders and Law makers, of course, with the active participation of “National Conference leadership” in the proceedings of the Constituent Assembly that was discussing about features of the future Republic’s Constitution. Ninety three seats were given to the States for representation in the Constituent Assembly of India Debates. J&K was given four seats. The four members, named above, were “nominated” by the Interim Government appointed by Maharaja Hari Singh at Nehru’s behest with Sheikh Abdullah as its Emergency Head on 30-09-1947. Whether nomination was later confirmed by the Maharaja or his Regent son, Yuvraj Karan Singh, as there are conflicting reports about it, is inconsequential as the administration / government was “selected” by the Rulers & “not elected” government of the people of the State.
But for the “special circumstances” [including UN angle] read with the discussions between Congress & National Conference leaders about the safeguards to the State’s “autonomy” in future Republic’s Constitution that were held at Delhi for some months in 1949, J&K was not represented in the Constituent Assembly for a long time. Ultimately, the four “representatives” of J&K joined the proceedings of the Constituent Assembly of India on 16-06-1949, as mentioned earlier. And, apparently, the Delhi talks of 1949 between the two sides had laid the foundation for linking JK with India through a Constitutional tunnel of Article 370.
Incorporating Article 370:
The Kashmir’s representatives led by Sheikh M. Abdullah had prepared draft Article 306-A [which finally became Article 370 in the Constitution] limiting the power of Indian Parliament to legislate on three matters specified in the IOA with respect to the State of J&K. The National Conference draft Article was not, however, considered in its original shape by N. Gpalaswami Aiyangar who after effecting “vital” changes in it, re-drafted Article 306-A which was resent to Sheikh Abdullah , but simultaneously moved & passed in the Constituent Assembly of India on 17-10-1949 , and “the members from the State [who were present there] did not object” to changed draft of the Article . N. Gpalaswami Aiyangar who was the architect of Article 370 incorporated it in the Constitution of India, as noted earlier.
Incorporation served two purposes for India:
Ex-Supreme Court Judge, N Santosh Hedge, has said that “whatever was the purpose of those Articles [370 & 35-A] …according to me, it has served that purpose”. Business Standard dated16-04-2019 [Articles 35A, 370 required to be scrapped: Santosh Hegde], emphasis supplied] What was that purpose, he has not explained. These words reflecft aphorism of army of antagonists of the Article[s]. However, it disguises full truth about the purpose[s] the Article[s] served the interests of India. I think “purpose” was not single. It was double. Actually, when Article 370 was incorporated in the Constitution of India, India was under great “pressure” by UNO for holding Plebiscite in J&K. Article 370 immediately served as a conduit pipe to set up “constitutional link” with the State of JK that in a way buttressed its stand on it. Till incorporation of Article 370, India had only Military control over the State. Article 370 laid the foundation for administrative & legislative control over the State. These three types of controls together strengthened its hold on the State. While institution of Army is for defending country against external attack, the other two are for running daily affairs of life in a democratic set up. This was the immediate & short term dividend of incorporating Article 370 into the Constitution. Its long term benefit for India was that India started advancing the novel argument that the participation of Kashmiris in elections held later on under the Constitution of India read with Representatives of Peoples Act was proof that they have been voting for India, confiding trust and loyalty to it. The Indian arguement went to the extent of repeatedly saying that the right of self determination guaranteed under of the United Nations International Covenant on Civil & Political Rights in all democratic systems, to which India is a signatory, could be exercised “externally” as under UN auspices or “internally” by participating in elections for governance to pursue economic, social and cultural development of the people. But a counter argument is advanced that there are UN Resolutions of 1952 & 1957 that hold of right of self determination under the Constitution of India is no substitute to its “external exercise” under UN Resolutions, but India has rejected these Resolutions.
Post-incorporation: Full work to extend tunnel deep inside State’s special status:
The conduit pipe to complete “process of accession” came in the shape of Article 370. Although rightwing organisations of India are openly pressing for its abrogation right from day one, as yet, “Retention of Article 370 has sometimes been justified by saying that it is not a wall but a tunnel. On December 4, 1964, Gulzari Lal Nanda, Union Home Minister, said, “through this tunnel a good deal of traffic has already passed; more will pass now. A few days later MC Chagla, Education Minister, observed, “Through Article 370, the whole of the Constitution could be applied to the J & K”. [Jagmohan, My Frozen Turbulence in Kashmir,(Allied Publishers, 2006, 7th edition), page 252] Earlier on 27the November, 1963, Prime Minister of India, Jawaharlal Nehru, told Lok Sabha as under:
Article “has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close. There is no doubt that Kashmir is fully integrated … We feel this process of gradual erosion of Article 370 is going on. Some fresh steps are being taken and in the next month or two they will be completed. We should allow it to go on” (Lok Sabha Debates; 27 November 1963; Volume XII, Columns 1231-2 cited in AG Noorani, book, titled ,Article 370: A Constitutional History of Jammu & Kashmir (Oxford University Press, 2011) page 2, 304-305 & its book review by Aijaz Wani published by Sage Publications on behalf of Institute of Race Relations on its Website on 29-09-2014)
Article 370 gave J&K a special status in the Union of India which no other State enjoyed. The arrangement that was made between India & J&K State through this Article is called “asymmetric autonomy” in political science & Sheikh Abdulla firmly believed that this arrangement was sine qua non for J&K relationship with India. But erosion of this Article for “integration” of the State with India was forced upon it by New Delhi through “client governments in Srinagar run by stooge valley politicians who had no legitimacy in the eyes of the people” . Bakshi GM from 1953-1963, GM Sadiq from 1964-1971 & Mir Qasim from 1971-1975 were engaged for the toxic process of erosion of State’s autonomy or special position guaranteed under this Article. In 1954, first Mega Presidential Order, The Constitution (Application to Jammu and Kashmir) Order, 1954 was passed which was followed by 47 Presidential Orders (as amendments to that Mega Order & not replacement) between 11-2-1956 to 19-02-1994 extending 94 out of 97 items in Union List & 260 out of 395 Articles of the Indian Constitution to the State.
In December 1964, when G M Sadiq was Delhi-appointed PM of the State since February, 1964, the Central Government extended Articles 356 & 357 of the Constitution, where-under the Centre can dismiss any “elected” government in any State including J & K State, whereby it was, therefore, brought on par with other States of India. There was extraordinary protect against this move jointly by Sheikh Abdullah’s NC & Mirwaiz Mawlana M Farooq’s newly constituted Awami Action Committee, two largest political parties of Kashmir “To all intents and purposes this meant the cancellation of Article 370”. Alastair Lamb, Kashmir: A disputed Legacy, page 208 “Over the years, President’s Rule imposed under these Provisions became extremely controversial because it was thought often used to serve central government convenience or political party interests.” Granville Austin, Working Democratic Constitution, page 157; S R Bommai v. Union of India ( AIR 1994 SC 1918 =(1994) 3 SCC 1 (gives extreme power to the CG) Again under the “regime” of GM Sadiq, ”State Assembly” by amending the J & K Cnstitution vide its Sixth Amendment decided to replace the post of Sadr e Riyasat, though a nominal Head, yet appointed by the State Council of Ministers, to that of a Governor directly appointed by the Delhi Government & post of PM of the State was replaced by CM like that of any other State of India. These “amendments” by Central Government’s stooge politicians of Kashmir dealt mortal blow to the “special” position or autonomy that was guaranteed under Article 370.
The process of erosion of autonomy continued. On 08-07-2017, the State Government, a coalition of PDP-BJP, where-under PDP bogged down under the pressure tactic from its coalition partner, BJP, [see below] ultimately gave “concurrence” , as was required under Article 370, to the central government for extension of the Central Goods and Services Tax Act, 2017 together with newly incorporated Articles 246-A & 279-A to the State. This was done by passing the Constitution (Application to Jammu and Kashmir) Amendment Order, 2017 to the cited Mega Order of 1954. Earlier BJP, had given “ultimatum” to its coalition partner PDP to give “concurrence”, “not later than July 6” for extension of the Central Goods and Services Tax Act, 2017 to the State otherwise coalition was going to end, in the words of BJP. It meant loss of “power” to PDP that had so far resisted against implementation of Central Goods and Services Tax regime in J&K in the interest of protection of the State’s “financial autonomy” but ultimately, it failed to resist temptation of losing power. More recently, the central government, in absence of any “elected government” in the State, but on the recommendations of its own nominee, Governor of the State, issued the Constitution (Application to Jammu and Kashmir) Amendment Order, 2019 by amending the Presidential Order of 1954. Hindustan Times dated 28-02-2019 [Provisions with regard to reservations for the SCs, STs and OBCs which were brought in 1993 through the 97th Amendment were made applicable to the State by said Presidential Order]; Countercurrents dated 3-3-2019[ The Constitution ( Application to Jammu & Kashmir) Amendment Order, 2009 : A critical analysis]
So, through the tunnel of Article 370, provisions of the Constitution have been step by step artfully transported to the State through elected & non-elected State governments from time to time which has reduced the provision to mere otiose.
It is clear from above that Article 370 that was avowed to be a provision to guarantee and maintain the “special status of JK within Union of India” was surreptitiously used for different political objects of gradual “total merger” of the State with India. Sheikh Abdullah while addressing his Constituent Assembly of J&K on 11-08-1952 had this to say about Article 370:
“I would like to make it clear that any suggestions of altering arbitrarily this basis of our relationship with India [Article 370] would not only constitute a breach of the spirit and letter of the Constitution, but it may invite serious consequences for a harmonious association of our State with India……In arriving at this arrangement the main consideration before our Government was to secure a position …… of maximum autonomy ….. for the [State] while discharging [its] obligations as a unit of the federation [of India]….” (The J&K Constituent Assembly Debates, from 1951 to 1955, Volume 1, page 563; Sumantra Bose, Transforming India , Challenges to the World’s largest democracy ( Picador India, 2013) page 248)
Such erosion of the provision has been itself conflicting with the commitments of Indian leaders made to the world and Kashmiri leaders of the time who had preferred the Congress over Muslim League leadership while joining hands with Indian Dominion. In view of the clearly expressed reservation (Article 370), the State even after the Proclamation of the Rule [see next about this Proclamation] enjoyed sovereignty in all other matters which were possessed by it after the Instrument of Accession. Yuvraj Karan Singh, Regent of Jammu and Kashmir, acting on the advice of his Council of Ministers, after completion but before commencement of the Indian Constitution, issued a Proclamation on November 25, 1949 which contained that it (Constitution of India) “applicable to the State of Jammu and Kashmir govern[s] the Constitutional relationship between this State and the contemplates Union of India…” Thus, since the commencement of the Constitution, it is Article 370 which governs the relationship between Union of India and State of Jammu and Kashmir.
Article 370 falls in basic structure of the Constitution:
Notwithstanding that this special provision has been emptied of its initial force to maintain and protect Unique Position of J&K within Indian Union, “ it is evident that the Constitution-makers have treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis, it still presents features not common to any other State included in the Union of India”. Prem Nath Kaul v. State of Jammu & Kashmir, AIR 1959 SC 749= (1959) SCR Supl. (2) 270, (05 Judges Constitution Bench) The continuance of the exercise of the powers conferred on Parliament and President by the provisions of Article 370(1) has been made conditional by the “final approval by the State Constituent Assembly” itself under clause 2 of Article 370. Ibid; speech of N Gopalaswami Ayyenger in the CA of India on 17-10-1949[same words] It meant, in other words, that it was only the State Constituent Assembly that had plenary power to give final approval on laws extended by President in “concurrence” with the State Governments under this provision. However, the Supreme Court in its two subsequent rulings emphatically approved exercise of powers by the President under Article 370 even after the Constituent Assembly had ceased to operate and JK Constitution was enforced in the State. The Supreme Court held that the exercise of powers by the President under the provisions of Article 370 (1) even after enforcement of the State Constitution w e f 26-01-1957 would be valid in law. It further held that “Clause (3) of the Article clearly envisages that the Article will continue to be operative and can cease to be operative only if, on the recommendation of the Constituent Assembly of the State, the President makes a direction to that effect. In fact, no such recommendation was made by the Constituent Assembly of the State, nor was any Order made by the President declaring that the Article shall cease to be operative. On the contrary, it appears that the Constituent Assembly of the State made a recommendation that the Article should be operative with one modification to be incorporated in the Explanation to Clause (1) of the Article”. Sampat Prakash v. State of J&K, AIR 1970 SC 1118= (1969) 3 SCR 574 (03 judges) In Sampat Prakash , the Supreme Court held that it was bound by its earlier authority of 7 judges. Puranlal Lakhanpal v. President of India, AIR 1961 SC 1519= (1962) 1 SCR 688 (07 judges)
Similar view about constitutional validity of Article 370 and the valid exercise of powers by the President under it was upheld by the Supreme Court in its later decision. M M Damnoo v. State of JK , (1972) 1 SCC 536 The Constitutional Bench of seven Judges held that the object behind enacting Article 370 was to recognize the “special position” of the State of JK and to provide for that special position by giving power to the President to apply the provisions of the Constitution to JK with such exceptions and modifications as the President might by order specify. Puranlal Lakhanpal v. President of India, AIR 1961 SC 1519= (1962) 1 SCR 688 (07 judges) While interpreting the word “modification” used in Article 370, the Constitution Bench held that “when Article 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify, it means that he may vary (i.e., amend) the provisions the Constitution in its application to the State of Jammu and Kashmir. We are, therefore, of opinion that in the context of the Constitution, we must give the widest effect to the meaning of the word “modification” used in Article 370 (1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Article 370(1) only to such modifications as do not make any “radical transformation.” We are therefore of opinion that the President had the power to make the modification which he did in Article 81 of the Constitution”. Ibid: this interpretation of the word “modification” puts a seal of approval on the Presidential Order of 1954 whereby, inter alia, Article 35-A was incorporated in the Constitution; Discussion about Article 35-A can be found in my separate columns & articles on Countercurrent & elsewhere
It has to be noted that Article 370 is an original provision of the Constitution, as such it cannot be repugnant to other provisions of the Constitution of India in view of cardinal rule of interpretation of the statutes, that is, “In Civile Est Nisi Tota Lege Perspecta Una Aliqua Particula Ejus Proposita Judicare Vel Respondere’. Translation: “construction is to be made of all parts (of a statute) together, and not of one part only by itself”
Even if it is presumed to be an exception, there are exceptions to every rule. Under the Constitution, only States & not Union Territories have Legislature, as yet, UT of Pondicherry has a Legislature. This is an exception to the general rule.
On the basis of expediency and political history, there are special provisions contained under the Constitution with respect to other States of India. Likewise, Article 370 is also a special provision with respect to JK.
The discussion makes it clear that Article 370 has become a “permanent feature” of the Constitution of India as the “condition precedent” for its abrogation as envisaged under its clause (3) [Supreme Court has already held in State Bank of India v. Santosh Gupta decided on 16-12-2016 that “despite the headnote of Article 370, it is not a temporary provision] was never fulfilled nor could be fulfilled any time hereafter. This is the ratio of the cited rulings of the Supreme Court in respect of Article 370. Ram Jethmalani, a noted Supreme Court lawyer, has recently stated that “Article 370 is a part of the basic structure of the Constitution because we have incorporated it in accordance of the wishes of the then Constituent Assembly of Jammu and Kashmir……[Repealing] it is out of question. “ The Economic Times dated 08-11-2014; DNA dated 08-11-2014 [BJP is quiet since I explained Article 370 to Narendra Modi: Ram Jethmalani It may be noticed here that under the law of India as laid down by the Apex Court in a plethora of its judgments, Parliament has power to amend the Constitution but what constitutes “basic structure” or “pith & substance” of the Constitution , that cannot be amended or abrogated by any Constitutional Amendment. As stated above, Article 370 is a “basic structure” of the Constitution, it cannot be destroyed by any Constitutional amendment.
But despite what is stated above, right-wing organisations are time & again approaching the Supreme Court for quashing Article 370. The rightwing organisations of India led by BJP are presently spearheading the campaign against Article 370 & Article 35-A. The approach of right-wingers on Article 370 is just an appeal to closure. Apparently, the Supreme Court cannot declare Article 370 unconstitutional when its 07-judges bench in Puranlal Lakhanpal ante has upheld its constitutionality beyond repeal & that ruling is binding on it till date. For such an action, the Supreme Court has to then constitute a larger bench of 08 or more judges to revisit earlier rulings on it. But for aforesaid reasons, it seems unlikely. Then what course is left with the rightwing organisations of India to do away with these provisions. For that they need, 360 odd members in Parliament, required numbers in Raja Sabha & majority in 15-17 State Assemblies of India. Presuming that happens, Article 370 is taken away by such an Amendment by right-wingers, such Amendment will 100% come in challenge before the Apex Court that will then in exercise of its power of judicial review either strike down such Amendment as conflicting with basic structure (Article 370) without remitting it to a larger bench for reconsideration or it may in its discretion constitute a larger bench of 08 or more judges to deal with the issue afresh in the light of earlier rulings & political history of J&K. It is just a presumption.
National Conference leadership which was fully involved in shaping the “direction of events” of 1947 that had far-reaching consequences for overwhelmingly Muslim populated State of J&K took pride in aligning themselves with liberal, social, progressive & democratic “lofty ideals” of INC leadership, instead of “communal politics” of Muslim leaguers , would have never thought of that Article 370 will be divested of its sanctity & honour by the same INC leaders & their political-successors about whom they publically had said: Mantu shudam tu manshudi man jah shudam tu tan shudi man degram tu degree . Translation: Me & Nehru are two bodies but with one soul , cited in Times of India dated 03-11-2011[Sheikh Abdullah’s speech at Lal Chowk in May 1949], The Statesman (Calcutta) dated 31-05-1949 also reproduced the said Persian quote].
Keeping in view radical erosions made with the much avowed State’s special status in the Union of India & the fact that its corpse seems to be now awaiting cremation at the pyre of heap of broken pledges by secular-democratic-system of India, the then leadership of National Conference, if they were alive today, would have been compelled to ask themselves: was it a “fustian bargain” they had struck with India as it seems to have been a “constitutional game” played with them by the experts of law with which they don’t seem to have been well versed. After all, none can deny the brute truth that nothing stays permanent in politics & law. Article 370 is just an empty shell left in the hands of the State now. Its fire has been taken off it by tinkering with it multiple times.
Two points arise here: First, if National Conference leadership had not conceded to the incorporation of Article 370 at the most crucial time of political history of Kashmir, what would have been the repercussions. Obviously, Indian case on Kashmir would have been very weak, for its “UN tangle”. Second, if this Article is abrogated after more than 7 decades of its existence on Constitution, what will be the consequences? If this tunnel is severed, then, the “constitutional link” between JK & India is mostly likely to come under serious questioning & sharp focus at national and international levels keeping in view the UN Resolutions that still stand on UN Charter and many countries till date are advocating for resolution of , what they call, long pending “unfinished agenda of partition”. It will be like stirring hornet’s nest and all “facts and myths” surrounding JK’s Accession with India & subsequent developments that “consolidated India’s control on JK” will come in a serious doubt before the world, all mainstream political parties less by right-wingers, say it. The Tribune dated 28-04-2019 [Centre’s J&K Policy dreaful: Experts: “….If the two (Artcles 35-A & 370) the whole issue of instrument of accession will open up……”, per Radha Kumar]. : The situation India would never want taking place. This seems to be the priori reasoning.
M J Aslam is Author, academician, essayist, story-teller & freelance columnist