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December 05, 2010




Page: 26/40

Home > 2010 Issues > December 05, 2010

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Genesis of Article 370 and its after effects

By PC Dogra, IPS (Retd)

Sheikh Abdullah used Pt. Nehruís weakness for him and his indispensability towards delivering on plebiscite to the hilt. He dictated his terms, so much so that the government and the Constituent Assembly of India had to bow to his wishes.

WHEN J&K State was attacked by the Pakistani regular forces and the tribals on October 26, 1947, Maharaja Hari Singh sought the help of India and signed an instrument of accession with India. It was similar to the one signed by the rulers of other states. However Government of India(GoI) adopted the stance that it was the people of the State of J&K acting through the Constituent Assembly to first endorse the accession to India and then determine the Constitution of the State and the jurisdiction of the Union of India. This is how Article 370 came into being. It was a temporary provision inserted till the accession was ratified by the Constituent Assembly of J&K. It was transitional in nature.

The other factor was the requirement of holding plebiscite. Security Council passed a resolution on April 21, 1948 recommending to the Government of Pakistan to withdraw tribals and Pakistani nationals from Kashmir. Subsequently GoI was to carry out a progressive withdrawl of the Indian forces to the minimum strength required for the maintenance of law and order. The resolution also envisaged the appointment of a plebiscite administrator with powers adequate to prepare and conduct the plebiscite.

It is a recorded fact of history that Pt Nehru was awfully enamoured of Sheikh Abdullah and hated Maharaja Hari Singh, the then ruler of J&K. Allan Campbell-Johnson have stated in their book Mission with Mountbatten that "Government of India took a stand before the Security Council that the present administration be transformed into a Council of Ministers under Abdullahís leadership. This Council should then convene a National Assembly elected on proportional representation. This Assembly should then elect a new government which should hold a plebiscite under United Nations control".

Sheikh Abdullah used Pt. Nehruís weakness for him and his indispensability towards delivering on plebiscite to the hilt. He dictated his terms, so much so that the government and the Constituent Assembly of India had to bow to his wishes.

Dr Karan Singh has written in his book Heir Apparent that "Maharaja deeply resented the manner in which "Jawaharlal had made his handing over the power to Sheikh, a virtual condition for extending military aid to save the State from Pakistani occupation."

Earlier respecting the terms of accession and the peculiar situation of J&K, Pt Nehru, Sardar Patel and Gopalaswamy Ayyangar, the then Minister-in-charge of Kashmir Affairs, after due agreement with Sheikh Abdullah and his colleagues approached the Constituent Assembly of India for incorporating the required provision in Article 306-A of the Constitution.

However Sheikh Abdullah backtracked and wrote to Gopalaswamy that the draft Article 306-A had not met with the approval of the Working Committee of the National Conference. Sheikh Abdullah sent an alternative draft which merely said that the provisions of the Constitution shall apply to Kashmir only in regard to the acceded subjects and that the Dominion Parliament shall be entitled to legislate in regard to Kashmir only in respect of acceded subjects. He objected to the preamble which stated that it will be short lived and that the Constituent Assembly of the State can terminate the Article and thereupon all the provisions of the Constitution would apply.

On October 16, 1949 Sardar Patel wrote to Gopalaswamy "I find that there are substantial changes over the original draft particularly in regard to the applicability of Fundamental Rights and Directive Principles of State Policy. You can yourself realise the anomaly of the State becoming part of India and at the same time not recognising these provisions. I do not at all like any change after our party has approved of the whole arrangement in the presence of Sheikh Sahib himself. Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people.

Sheikh Abdullah was so adamant regarding draft Article 306-A that he wrote to N Gopalaswami Ayyangar "In case I fail to hear from you within a reasonable time, I regret to say that no course is left open for us but to tender our resignation from the Constituent Assembly." His views had to be accepted and Article 370 was inserted in the Constitution as he wanted to be. It stipulated that no law enacted by the GoI would be applicable to the State of J&K until it was so approved by the State Legislature. There is a dual citizenship. Indians do not become automatically the citizens of J&K. The State has a separate Constitution and a separate flag.

This provision has been misused by the political elite of the Valley for building their empires. It is learnt that the provisions of wealth tax, urban land ceiling act and the gift tax are not made applicable under Article 370. It is a vicious strategy to keep the State aloof from the national mainstream. It militates against the very concept of one India and is a nutrient for the two nation theory.

Now let us examine the recommendations of the State Autonomy Committee constituted by the National Conference Government. It is strongly in favour of the restoration of pre-1953 status to J&K which means that:-

Central Government will have control over defense, foreign affairs and communications only.

J&K will remain out of the purview of Supreme Court of India.

Central Election Commission will have no jurisdiction over J&K.

Comptroller and Auditor General will have nothing to do with the auditing of the financial transactions of the State.

Article 370 to be made permanent.

The State will have its own President (Sadr-e-Riyasat) and the Prime Minister.

All the laws promulgated after 1953 will be repealed.

National flag will fly only on the Central Government buildings.

President cannot impose Presidentís rule without the concurrence of the State.

Provisions of the Constitution of India relating to the All India services will not apply to J&K

Does it not lead to a practically independent J&K?




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