The incorporation of Article 370 in the Constitution of India was a purely temporary measure, but even after the lapse of nearly 60 years it continues to operate as a mandate of the state. It may be recalled that only within a few days of Partition, Pakistan waged a proxy war against India to grab Kashmir. It took the plea that the attack had been launched by the Azad Kashmir Forces. Pakistan had attacked on October 24, 1947. Maharaja Hari Singh signed an Instrument of Accession on October 26, 1947 and empowered the Union of India to have absolute jurisdiction in respect of three subjects namely defence, foreign affairs and communication.
In executing the said Instrument the Maharaja'ssole object was to save his state from the onslaught of Pakistan and her allies. It was jointly decided that the final decision from which there would be no change regarding accession of Jammu & Kashmir to India would be taken by the Constituent Assembly and till that is done the state will have a special status. In order to grant that special status stipulated in the Instrument of Accession a purely temporary provision was made by incorporating Article 370 in the Constitution of India.
After the execution of the Instrument of Accession the Constituent Assembly was convened by the people of Jammu & Kashmir on the seventeenth day of November 1956 whereby they adopted, enacted and gave to themselves a new constitution which they called the Constitution of Jammu & Kashmir. In this context the most important point to remember is that according to the agreement between the erstwhile ruler of Jammu & Kashmir and the Union of India the final decision regarding accession of Jammu & Kashmir to India was taken on November 17, 1956 by the Constituent Assembly which made a written commitment in the Preamble to its newly framed Constitution that Jammu & Kashmir was an integral part of India. In order to clear all doubts in this regard Article 3 of the said constitution also clearly and definitely stated, ?The state of Jammu & Kashmir is and shall be an integral part of the Union of India.?
Thus all controversies regarding accession of Jammu & Kashmir to India automatically came to an end.
There was no question of retaining Article 370 in the Constitution after the Constituent Assembly acting on behalf of the people of Jammu & Kashmir finally decided that Jammu & Kashmir was an integral part of India. The matter ended there for good and the only task left before the Centre was, and still is, to amend the Constitution for abrogating Article 370 and to repeal the constitution of Jammu & Kashmir which grants special status to that state.
The constitution of Jammu & Kashmir has created a state with its own flag within the sovereign State of India. Jammu & Kashmir has not only its separate flag, it has a separate constitution and distinct official language.
It is an anomalous situation which ought to have been removed the day it had arisen. If it is allowed to continue it will accelerate destabilisation not only in the state of Jammu & Kashmir but in the whole of India.
It is true that when the Constituent Assembly representing the people of Jammu & Kashmir had taken the final decision regarding the accession of that state to India and the Constitution thereof had also proclaimed that ?the State of Jammu & Kashmir is and shall be an integral part of the Union of India? (Article 3), the Centre took no action to make the guaranteed integration real. Instead of abrogating Article 370 and abolishing special status of Jammu & Kashmir by annulling its unconstitutional constitution the Nehru government evolved the obnoxious and unwise policy of appeasement of Muslims in the Kashmir valley and thus committed the blunder of making a non-issue an issue. It is also true that the subversive elements were active even at that time, both in Pakistan and India, but who prevented the then Prime Minister Nehru to crush them with the help of the armed forces which were always at his disposal. Nehru went on committing one blunder after another. Even today the Centre is pursuing the same cowardly and conciliatory policy towards the enemy.
Article 370, which according to part XXI of the Constitution of India, was a temporary, transitional and special provision ought to have been firmly annulled either by invoking Presidential power under Clause (3) of the same Article or through constitutional amendment under Article 368 read with Article 355. When the Instrument of Accession was executed on October 26, 1947 and the Constituent Assembly acting on behalf of the people of Jammu & Kashmir accorded final sanction to the said accession on November 17, 1956 the Kashmir chapter was closed for ever for the supreme good of both the Hindu and Muslim masses. Why was a closed and concluded matter made a subject of controversy again? Clause (3) of Article 370 of the Constitution of India clearly states, ?Notwithstanding anything in the foregoing provisions of this article the President may, by public notification, declare that this article shall cease to be operative only with such exceptions and modifications and from such date as he may specify.?
The Proviso added to the said Clause that ?the recommendation of the Constituent Assembly of the State referred to in Clause (2) shall be necessary before the President issues such a notification? has become ineffective and cannot act as a constitutional bar to Presidential proclamation for the simple reason that it is no more in existence. The question of its consent, therefore, does not arise. The erstwhile Constituent Assembly of Jammu & Kashmir has been replaced by the Legislative Assembly. Article 46 of the constitution of Jammu & Kashmir states, inter alia, that ?there shall be a legislature for the state which shall consist of ? two Houses to be known respectively as the Legislative Assembly and the Legislative Council.?
The word ?New Kashmir? which occurs in Article 13 of the Jammu & Kashmir constitution does not and cannot mean independent Kashmir. It only means ?better Kashmir? whose prime object would be the promotion of the mass of the people by establishing a socialist society free from all exploitation of man by man.
From the perusal of these facts it becomes abundantly clear that the continuation of Article 370 under whose cover the state of Jammu & Kashmir enjoys a special status, is totally unjustified and it is within the power of the President of India to make it inoperative.
It should never be forgotten that Article 370 incorporated in the Constitution of India at the behest of Nehru has become a strong shield of protection in the hands of terrorists and their patron the state government. It is due to this mischievous Article which gives special status to Kashmir that more than 3000,000 Kashmiri Pandits comprising 78,000 families, have been forced to leave the Kashmir valley and live a miserable life as refugees in their own country.
Article 370 has been used to build political oligarchy in the state of Jammu & Kashmir. Although the Constitution of Jammu & Kashmir talks of liberty of thought, expression, belief, faith and worship no such thing exists there in practice.
After the formulation of Operation Topic by the then dictator of Pakistan Zia-ul-Haque in November 1987 a reign of terror was unleashed in Kashmir which continues unabated even today. In the very beginning of the said operation more than 800 Kashmiri Hindus, 100 non-Kashmiri Hindus and a number of Sikhs had been reportedly killed in the most callous manner.
The mass attack on the Hindus had begun in a pre-planned manner in January 1990. It culminated in gangrape, kidnapping, loot, arson and murder in the most unthinkable manner as time rolled on. Poor and innocent people belonging to Hindu community were butchered like beasts. The servants of Satan masquerading as messengers of Allah gangraped a school teacher working at Bandipora and subsequently sliced her on a mechanical saw. Neither the Centre, nor the State government took any meaningful measure to nab the culprits and punish them.
Sporadic attacks had started as early as February 1986 when, according to authentic reports, 56 temples and 150 houses were burnt in a single day and more than 1500 houses belonging to Hindus were looted. All these calamities would have been easily averted had the centre taken pre-emptive action by giving army a free hand after giving a deathblow to the special status to Jammu & Kashmir on the basis of its own constitution as well as on the grounds already existing in the constitution of Jammu & Kashmir referred to above in the foregoing paragraphs. Article 370 and the resultant special status of the state of Jammu & Kashmir have given rise to many anomalies. Article 5 of the Indian Constitution recognises only one type of citizenship but the so-called constitution of Jammu & Kashmir accords recognition to a particular category of citizens whom it designates as permanent residents. In view of the fact that as per entry 15 of the first schedule of the Constitution of India, Jammu & Kashmir is a state of this country and every citizen of this sovereign state called Bharat? ipso facto becomes a citizen of that state too and is entitled to reside and settle there and hold property to carry on any occupation, trade or business. But the constitution of Jammu & Kashmir makes unlawful discrimination between permanent residents defined in Article 6 and others who are citizens of India within the meaning of Article 5 of the Constitution of India. Due to this anachronistic law a citizen of India who is not a permanent resident of the sate of Jammu & Kashmir faces great difficulties in the enjoyment of his fundamental rights there.
An Indian citizen who is an ordinary resident of Jammu & Kashmir is not allowed to contest elections there. Does it not show that Jammu and Kashmir has become virtually an oligarchic state run by Muslims although both the constitutions i.e. the Constitution of India and the constitution of Jammu & Kashmir unequivocally declare that it is an integral part of India?
There is no doubt that all these legalistic problems arise only because of the special status granted to this anachronistic state by incorporating Article 370 in part XXI of the Constitution of India. The moment this mischievous Article is abrogated and the constitution of Jammu & Kashmir is annulled by an all of Parliament followed by a non-communal government with a strong will and arms to eradicate terrorism from the valley comprising three regions all these baffling problems will be solved and the valley will be no more a place for terrorists to indulge in heinous crimes and deadly sins in the name of religion and God.
There are two options for the abrogation of Article 370. The first option is to invoke Presidential power exercisable under that Article itself. Article 370 lays down: ?Notwithstanding anything in the foregoing provisions of this Article the President may, by public notification, declare that this Article shall cease to be operative or shall be operative. Only with such exceptions and modifications and from such date as he may specify. Provided that the recommendation of the Constituent Assembly of the state referred to in clause (2) shall be necessary enforce the President issues such a notification.?
The consent of the Constituent Assembly of the state of Jammu & Kashmir for the exercise of the Presidential power is not required because the said Constituent Assembly is no more in existence.
The other efficacious remedy is to abrogate Article 370 and declare the constitution of Jammu & Kashmir null and void being ultra vires the Constitution of India by amending the Constitution under Article 368 read with Article 13(2) and Article 355.
Since the very day India was declared to be a Sovereign Republic persons in power have never cared to change obsolete and obnoxious laws which have been plaguing our great motherland for several decades. There is an urgent need for drastic changes in the entire legal system.
Section 18 of the Indian Penal Code framed by Macaulay doesn'tregard the state of Jammu & Kashmir as a part of India. It says: ?India? means the territory of India excluding the state of Jammu & Kashmir. Why has not this utterly false, unlawful and objectionable section been repealed by the Indian Parliament as yet? The continuance of this section speaks to the ignorance, selfishness and callous indifference of politicians in power to the interests of our nation.
Abrogation of Article 370 and subsequent annulment of the special status of Jammu & Kashmir is a sacred duty of all and sooner it is done the better it will be.
(The author is a senior advocate and can be contacted at 207 A, Kalyani Apartments, Sector-06, Vasundhara, Ghaziabad(UP))