Article 370: A Wrecked Compact

ARTICLE 370 of the Indian constitution was devised as a guarantee of the autonomy of the territory that was the princely state of Jammu & Kashmir. It is the only provision of the constitution which was negotiated for five months from 15 May 1949 to 16 October 1949 between Jawaharlal Nehru and Sheikh Abdullah.
A solemn compact is now a total wreck. The home minister G.L. Nanda said in December 1963, “only the shell is there”. The previous month, Nehru had said “this process of gradual erosion of Article 370 is going on”.
A constitutional provision is not a natural element to be “eroded”. It was systematically violated in breach of its terms. The process was begun by Nehru himself after Sheikh Abdullah was unconstitutionally ousted from the office of prime minister of Indian Kashmir on Aug 8, 1953 on Nehru’s orders. Since then, New Delhi foisted its men, now as chief ministers, through rigged polls to provide the requisite consent for the ‘erosion’ of Article 370.
The ruler Hari Singh acceded to India on Oct 26, 1947 only in respect of three subjects — defence, foreign affairs and communications. India was governed by an adapted Government of India Act, 1935. The Instrument of Accession did not bind Kashmir to accept the new constitution which the constituent assembly was to draft. Hence the need for the Nehru-Abdullah parleys.
Article 370, as agreed, exempted Kashmir from the provisions for governance of all the states. It was free to have its own constitution. Parliament’s power over it was restricted to those three subjects.
But Article 370 also empowered the Indian president to make orders to extend to it other provisions of the constitution for a federal framework — but with two provisos. If they corresponded to matters already comprised in the Instrument of Accession mere “consultation” with the Indian Kashmir government was required. If they went beyond it or more central subjects were to be extended, its “concurrence” was obligatory.
However, if it was given before its constituent assembly was “convened”, the concurrence was to be “placed before such Assembly for such decision as it may take thereon”. In plain words, Kashmir’s constituent assembly alone could accord that requisite consent to the Kashmir government’s interim “concurrence”. Once it was convened in October 1951, the Kashmir government’s authority to concur with the Union on further extension of the centre’s powers vanished.
On the Assembly’s formal dissolution on Nov 17, 1956, the sole consenting body was gone and the Indian president lost any power to make further orders under Article 370.
Yet, the Indian president made as many as 47 orders from 1958 to 1994. Of the 395 articles of India’s constitution, 260 were extended to Kashmir; 94 of the 97 matters for legislation in the Union List were extended to it, including the residuary powers of legislation. From the concurrent list 26 of the 47 items were applied. All this was accomplished by procuring in the teeth of Article 370 the concurrence of handpicked chief ministers elected through rigged polls.
The report of an autonomy committee set up by the Indian Kashmir government said: “Far from enjoying a special status, as Article 370 envisaged, [Kashmir] was put in a status inferior to that of other states. One illustration suffices to demonstrate that. Parliament had to amend the constitution four times, by the 59th, 64th, 67th, 68th constitution amendments to extend president’s rule imposed in Punjab on May 11, 1987. For … Kashmir, the same result was accomplished by executive orders under Article 370.”
In a note to Nehru in 1952, president Rajendra Prasad referred to the “ex¬tr¬aordinary” power of amending the constitution by executive orders. It had to end once Kash¬mir’s constitution was enacted in November 1956.
Even the unio¬nists demand its rollback to its pre-1953 status. One order can repeal another. In June 1999, prime minister Vajpayee’s cabinet brusquely rejected the Kashmir Assembly’s resolution endorsing the autonomy report. The PDP’s manifesto promised to “use Article 370 itself to restore the original special status” of Kashmir. But the BJP has always been for its abrogation. The PDP-BJP coalition pact says “the present position will be maintained on all the constitutional provisions pertaining to J&K”. Article 370 plus the Orders made thereunder alone answer that description.
The phraseology is a poor cover for Mufti Mohammed Sayeed’s deceit. The wreck of Article 370 reflects the betrayal of Kashmiri politicians who sold their peoples’ right for the sake of a taste of power
Article 370 was adopted by the constituent assembly in October 1949 when the Indian government was committed to a plebiscite in Kashmir. Its terms therefore did not bar a plebiscite.
The writer is an author and an eminent lawyer based in Mumbai.

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