Mehbooba Mufti is Right on Article 370

During the recent Lok Sabha Elections, the BJP banked on its conservative base and their policies were aimed at them. The manifesto issued by the BJP mentioned the abrogation of Article 370 and 35 A as one of its goals.

During the British rule, J&K was a princely state and the partition plan gave such states a choice, whether to remain a part of either India or Pakistan or remain independent, Maharaja Hari Singh chose the latter. But, the attacks by the militia formed by the North-West tribal forces forced the Maharaja to seek India’s help and in turn sign the treaty of accession, with the promise of a referendum later on. This sparked the first Indo-Pak War. Pakistan held one-third of the territory and India moved to the UN to sort out the dispute. The UN put forth a resolution for a plebiscite under certain conditions.

Article 370 was agreed upon in the instrument of accession and gave India control over the foreign affairs, defense and communication of the state. It therefore ensured the internal autonomy of the state on the premise of an incomplete agreement with the Indian union. Therefore, the legislative and executive spheres were left for the State Assembly to decide with a separate President and Prime Minister. Article 35 A gives exclusive powers to the State Legislative Assembly to define the permanent residents of the state and grant them the required benefits in scholarships, employment, immovable property and other public aid and welfare in the state. J&K’s history warrants it an exceptional status.

Is Article 370 amendable? If abrogated can it solve the long standing political dispute?

The legality of Article 370 has been settled by the Supreme Court in the Sampat Prakash vs State Of Jammu & Kashmir case in 1969 by holding it as a permanent provision of the Constitution enshrined by the Constituent Assembly. Therefore, the often repeated argument of experts and legal luminaries that it is temporary and meant for temporary stability of the state in wake of the derailing security situation is misleading. Moreover, it’s to be mentioned that Article 370 isn’t a favour but an agreement between the highest officials of the princely state and country. The historical context compelled Nehru to insert this exception for the state. The High Court of J&K in 2015 repeated the stand of the India’s Apex Court: “The Article (370) is a permanent feature of the constitution.” The statement of former Chief Minister Mehbooba Mufti in that “Abrogation (of Article 370) would unintentionally grant us freedom”, is without exaggeration, a measured statement if seen through the prism of the law and constitution. Therefore, the campaign promise of abrogating the Article 370 is misleading.

The Article 370, in essence, is the last ray of hope for the common people in Kashmir. It provides a unique sense of identity and sanctity and debate over its abrogation only worsens the situation. 

The eternal debate over the Article 370 makes one wonder about the left over  special status of Jammu and Kashmir. The defense or ‘security’ has been left for the Central Government to decide. The AFSPA and the PSA have been in operation for years. Independent inquiries have brought forth hundreds of human rights violations and abuses faced by the people at the hands of the state, which have deteriorated the security situation. The extremist wave is at its highest since the 90’s. South Kashmir seems to be governed by the rebels. 

Article 370 bridges the gap between us and the most probable solution would have been the revival of the situation that existed during the pre Delhi Agreement. Our leaders need to rise above the narrow political opaqueness and bring in a piecemeal strategy through the revival of Article 370 in its pristine form in letter and spirit.

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