Article 370

The ‘immortality’ of Kashmir problem

Understanding the problem of Kashmir is no less than rocket-science today. Whatever steps India took right since the signing of Instrument of Accession to the signing of Indira-Sheikh Accord and even till date, “ambiguities” were always an inherent part of them. Some ambiguities were incorporated deliberately while others were the result of serious mistakes (read ‘blunders’).

The epicenter of this whole turmoil that we see today is the sign-of-interrogation (?) on the validity of “accession”, whether it was conditional and revocable or unconditional and irrevocable. And here the opinion of Kashmiris and the rest of India differ. The ambiguities kept doors open for both the parties to come up with conflicting arguments and opinions. Despite winning all the wars in the battle-field from Pakistan, India has always failed on the Negotiation Table. The more India has tried to solve the problem, more it has entangled itself into it.

What Kashmiris think?
As per them, the accession of J&K with India was “conditional” and the condition is “self-determination” right via plebiscite or referendum, which was compensated/replaced by “Special Status” via Article 370. And hence they argue that once that “special status” is lifted, the status of India-J&K relation will revert back to the pre-accession time, i.e. when J&K was not a part of India.

Today, there are 2 types of separatists in Kashmir. The first one is conspicuous separatists who demand “Independence” of Kashmir explicitly while the others demand the same independence clandestinely by other fancy names like “Greater autonomy” or “Self-rule”. But both give the same contentions to put their case by desperately trying to colour the accession as “conditional” and hence revocable or by drawing a line between ‘accession’ and ‘merger’.

What the rest of Indians think?
As per them the “accession” of J&K with India is complete, absolute and irrevocable.  So their argument is that since the state is an “integral” part of India like other States, there is no reason why the State should have a “special status” as per the terms of accession. For them Article 370, inter alia, is anti-development, regressive, unjust and discriminatory and must be abrogated.
Article 370
Historical Blunders
Agreeing Plebiscite and Internationalization of the Kashmir issue were the blunders made by Pt. Nehru. Nehru, as he is known as, a man who cared more about personalities than issues, first surrendered before Mountbatten on internationalization and later before Sheikh Abdullah on Article 370. He was warned both the times but he didn’t listen, and his far-sightedness as cited by Gandhi while backing him as the First PM, and hence, didn’t just let Gandhi but this whole nation down on this issue. Trusting Western Powers and Sheikh Abdullah, Nehru was walking on paper-thin ice and taking the matter to UNO was the first visible crack in it.

Today, ‘Article 370’ is the major reason why J&K is seen as “not-an-integral part of India”. State Property Ownership laws restricted this land to only Permanent Residents, who were manipulated and misguided by local Politicians and enemy-funded Separatists for their own vested interests. Had there been no such ‘State Subject’ blocks for outsiders to settle here, problem would not have aggravated to such level. With dilution of population, there would have been the dilution of separatist and “anti-Indian” sentiment.

Abrogation of Article 370
Again, like other matters, there is no unanimity on this as well.
As per Kashmiris, Article 370 is the “bridge” between J&K and the rest of India. And if Article 370 is lifted, the bridge will collapse and it’ll not remain a part of India anymore. The rest of Indians think of Article 370 not as a bridge but “barricade” between J&K and the rest of India which must be removed.

And here too, ambiguity play it’s role. Though this Article was “supposed to be” of temporary and transient nature, and the title of Article itself says “Temporary provisions with respect to the State of Jammu and Kashmir”  and even Nehru famously said on one occasion that “Samvidhan ki dhara 370 ghiste ghiste ghis jaayegi” – that the Article would over time be eroded and eventually disappear altogether. But Nehru’s promise that Article 370 was a temporary provision and will get eroded over a period of time has turned out to be a chimera.

Article 370 can not be revoked unilaterally.  As per clause 3 of the Article, the President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. And since the Constituent Assembly was dissolved with the introduction of J&K Constitution on 26th January, 1957,a new Constituent Assembly will have to be convened for this matter.

Article 1 of the Indian constitution is applied on Jammu and Kashmir via Article 370. Hence abrogation of 370 would also mean cessation of application of Article 1 on Jammu & Kashmir, which in turn would open the doors of its secession from the Indian Union, as the Kashmiris argue.
As per Senior Advocate Ram Jethmalani, “It is stated in the Constitution that Article 370 can neither be amended nor removed without the approval of the Constituent Assembly. Since the Constituent Assembly ceased to exist after the adoption of the Constitution, it was not possible to alter or remove the Article now.”

“Only a government that adopts an entirely different constitution and asks judges to follow it at the point of a gun could remove or amend the Article 370,” Jethmalani had said.
More than the Legal and Constitutional dimensions involved regarding abrogation of Article 370, what is most important is whether the people of Kashmir are ready for it. And if not, whether without taking them into confidence would that be a right and a progressive step to talk about lifting the special status. One must take possible repercussions into account.

Referendum or Article 370 ?
One thing is clear, the chaos this total mismanagement of the whole issue has created, India has put itself in a situation where it has only two choices in respect to Kashmir today (as nationalist Jammu and Ladakh are not a problem), i.e. holding Plebiscite or Article 370 as giving away Kashmir is unimaginable. India cannot escape both simultaneously and it’s the stark reality India has to face today. Holding plebiscite/referendum had it’s pre-conditions on which India and Pakistan could never reach unanimity again, as the omnipresent “ambiguities” were present here too. And in foreseeable future, it doesnot look a possibility either. Constitution of India and Constitution of J&K, both declare it as an “integral” part of India today. So Article 370 is certainly the better and infact the only choice. At most we can do is curse history and our leaders responsible for this situation.

Status quo is the fate of this state and our nation. There is no end to the Kashmir Problem, it’s immortal.

Source: Published in the First Edition of Jammu Redefining Magazine

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