“I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion…”
“We have fought the good fight about Kashmir on the field of battle… (and) …in many a chancellery of the world and in the United Nations, but, above all, we have fought this fight in the hearts and minds of men and women of that State of Jammu and Kashmir. Because, ultimately – I say this with all deference to this Parliament – the decision will be made in the hearts and minds of the men and women of Kashmir; neither in this Parliament, nor in the United Nations nor by anybody else,” Jawaharlal Nehru said in the Lok Sabha on June 26 and August 7, 1952.
– Selected works of Jawaharlal Nehru, Vol. 18, p. 418 and vol. 19 pp. 295-6, respectively.
The war of words started when Dr. Jitendra Singh of the BJP took the office of Minister of State for Science and Technology of India in the new government led by Modi. Dr. Jitendra Singh is previously known for his infamous role in the 2008 siege/blockade of Kashmir’s essential supplies during the 2008 uprising for freedom in Kashmir. His comments were simple that ‘the process of abrogation of article 370 has been started.” Since India’s right-wing has always harped on abrogation of article 370 to merge Kashmir with India, this didn’t come up as a surprise for people of Kashmir.
Moreover, one of the essential elements to Article 370 is the state subject law which reiterates that only Kashmiris can buy property/land in the territory of Jammu Kashmir. It is surprising how Kashmiri Pandits who are against this law forget that it was them who initiated the original state subject law in 1928. It was during this period that Punjabis started to join the Maharaja’s administration. It was a threat to the Pandits in the administration as their places were slowly being taken away by Punjabis. With the help of Kashmiris – Muslims, the Pandits managed to create the first State Subject Law in Kashmir.
The hullabaloo around Article 370 has come as a shock for Omar Abdullah and other Pro Indian parties in Kashmir whose bread and butter comes from Article 370. It has proven to be a matter of life and death for their existence as a ‘Kashmiri representation’.
So what is Article 370?
The ruler of Jammu and Kashmir acceded to India by an Instrument of Accession on October 26, 1947 in respect of only three subjects – defence, foreign affairs and communications. A schedule listed precisely 16 topics under these heads plus four others (elections to Union legislature and the like).
Clause 5 said that the Instrument could not be altered without the State’s consent. Clause 7 read: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.” Kashmir was then governed internally by its own Constitution of 1939.
The Maharaja made an Order on October 30, 1947 appointing Sheikh Abdullah the Head of the Emergency Administration, replacing it, on March 5, 1948, with an Interim Government with the Sheikh as Prime Minister. It was enjoined to convene a National Assembly “to frame a Constitution” for the State.
Article 370 embodies six special provisions for Jammu and Kashmir. First, it exempted the State from the provisions of the Constitution providing for the governance of the States. Jammu and Kashmir was allowed to have its own Constitution within the Indian Union.
Second, Parliament’s legislative power over the State was restricted to three subjects – defence, external affairs and communications. The President could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the Instrument of Accession. For this, only “consultation” with the State government was required since the State had already accepted them by the Instrument. But, third, if other “constitutional” provisions or other Union powers were to be extended to Kashmir, the prior “concurrence” of the State government was required.
The fourth feature is that concurrence was provisional. It had to be ratified by the State’s Constituent Assembly. Article 370(2) says clearly: “If the concurrence of the Government of the State… be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.”
The fifth feature is that the State government’s authority to give the “concurrence” lasts only till the State’s Constituent Assembly is “convened”. It is an “interim” power. Once the Constituent Assembly met, the State government could not give its own “concurrence”. Still less, after the Assembly met and dispersed. Moreover, the President cannot exercise his power to extend the Indian Constitution to Kashmir indefinitely. The power has to stop at the point the State’s Constituent Assembly drafted the State’s Constitution and decided finally what additional subjects to confer on the Union, and what other provisions of the Constitution of India it should get extended to the State, rather than having their counterparts embodied in the State Constitution itself. Once the State’s Constituent Assembly had finalised the scheme and dispersed, the President’s extending powers ended completely.
The sixth special feature, the last step in the process, is that Article 370(3) empowers the President to make an Order abrogating or amending it. But for this also “the recommendation” of the State’s Constituent Assembly “shall be necessary before the President issues such a notification”.
Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution which apply to all the other States; namely, Article 368. For, in relation to Kashmir, Article 368 has a proviso which says that no constitutional amendment “shall have effect in relation to the State of Jammu and Kashmir” unless applied by Order of the President under Article 370. That requires the concurrence of the State’s government and ratification by its Constituent Assembly.
Basically it means that if the ‘constituent assembly’ in Jammu Kashmir passes a resolution to abrogate Article 370. It will be sent to the Indian Parliament, which if passes it with a majority will then be sent to the Supreme Court for judicial review. The judicial review will imply that the Article 370 is the binding feature of the ‘accession’ of Jammu Kashmir with India. That if it is abrogated it will nullify and invalidate the instrument of accession, the state will cease to be part of the Indian Constitution. Deeming the Indian presence as ‘illegal occupation’ and without any basis in law according to the Indian Law books. As India’s presence in Kashmir is already deemed illegal under international law and resolutions passed in the United Nations.
The Role of the United Nations
India filed a complaint in the U.N. Security Council on January 1, 1948 alleging that Pakistani forces were fighting in Kashmir. On April 21, 1948 the Security Council recommended the formation of a U.N. Commission for India and Pakistan (UNCIP) to proceed immediately to the scene of the dispute and to submit its findings to the Security Council.
India took the issue to the UN under Chapter VI of the UN Charter, dealing with the Pacific Settlement of Disputes and not under Chapter VII dealing with aggression. ( That basically meant that India accepts Kashmir as a dispute?)
During his address to the Security Council of March 8, 1948, the Indian Representative Mr. Gopalasawamy Ayanger said that, “No doubt the Ruler, as the head of State, has to take action in respect of accession. When he and his people are in agreement as to the Dominion to which they should accede, he applies for accession to that Dominion. However, when he has taken one view and his people take another view, the wishes of the people have to be ascertained. When so ascertained, the ruler had to take action in accordance with the verdict of the people (quoted from Sardar M. Ibrahim Khan. “The Kashmir Saga”, Pakistan, 1985, P. 2).
After lengthy investigations, the UNCIP passed two resolutions, one on Aug. 13, 1948 and the other on Jan. 5, 1949. The latter resolution begins as follows: –
“Having received from the Governments of India and Pakistan, the communications dated 23, Dec. and 25, Dec. 1948, respectively, their acceptance of the following principles which are supplementary to the Commission’s resolution of 13 Aug. 1948:
“The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be determined through the democratic method of a free and impartial plebiscite After the establishment of the cease-fire line by the UNCIP both the parts of Kashmir became legally autonomous and their accession to either of the two countries made subject to a plebiscite according to the Security Council resolutions. ”
Basically, India and Pakistan became signatories to the UN Resolutions which nullified the ‘Instrument of Accession’ of the Maharaja and called for a free and impartial plebiscite in Kashmir. These resolutions passed in the UN and signed by both India and Pakistan make Kashmir a ‘disputed territory’ not belonging to either India or Pakistan until the plebiscite takes place.
Later in 1956, the Constituent Assembly of Kashmir (which was formed after the 1953 coup ousted Sheikh Abdullah’s administration) ratified Kashmir’s accession to India. This was a violation of the earlier UN Resolutions. The United Nations Security Council assembled and discussed this issue. Later in its resolutions, following Resolution 91(1951) and passing Resolution 122 (1957) it unequivocally declared that convening of the constituent Assembly in Kashmir and its decisions, would not prejudice the final disposition of the State of Jammu and Kashmir in accordance with the will of people expressed through a free and impartial plebiscite.
The Kashmiri Point of View
Article 370 gives the illegal occupation of Kashmir by India a legal outlook. Indian right-wing harps on the fact that there is hindrance to the development in Kashmir as due Article 370, Non-Kashmiris cannot buy land in Kashmir. True, land can only be bought by Kashmiris in Kashmir but the Indian administration in Kashmir can provide land for Industrial purposes on a 99 year lease (which is practically two lifetimes). The right-wing Indians also believe that abrogation of this law will mean that they could settle in Kashmir and create a demographic change. Basically replicate another Palestine in Kashmir.
It is pertinent to mention that in ‘Azad Kashmir’ which is the Pakistani Controlled Kashmir, no Pakistani national can buy property in the territory of Azad Kashmir. Under Article 4 of the AJK alienation of land law, 1989 – Non Kashmiris cannot buy land in AJK. Never has their been an issue in Pakistan related to abrogation of such laws in the Pakistani Controlled Kashmir.
The new-Indian government is basically be-fooling the people of India to show its prowess and imperialist intention.It is not talking about the draconian law such as Armed Forces Special Powers’ Act which gives the Indian Forces in Kashmir a license to kill or the lawless law Public Safety Act which means a person can be imprisoned under no charge for two years. Also the fact that there are reportedly more than 500,000 Indian soldiers in Kashmir – world’s highest soldier to civilian ration in Kashmir. These soldiers were not stopped by Article 370 from occupying houses, hotels and cinemas of Kashmir. Neither were these soldiers stopped from building menacing bunkers and camps by Article 370. Neither does it stop the Indian Forces from occupying thousands of acres of land in Kashmir.
The puppet administration of Kashmir and other pro-Indian parties are creating such noise, as if the people of Kashmir actually care about this law. When after 23 years of protests and sacrifices, Sheikh Abdullah ‘surrendered’ the plebiscite movement only to Article 370 from India, which was subjected to constitutional abuse by India since the 1953 coup of Sheikh Abdullah. Leaving it like a lonely tree with no leaves in the summer. Sheikh Abdullah couldn’t even get the nomenclature of Prime Minister from the bargain for his own interests.
The revocation would give a shot in the arm to the Freedom struggle of Kashmiris under the Occupation of India. If it’s done away with, one the birds that flock around India will flee Kashmir and Kashmir will secede automatically from India.
“Propaganda can all too easily turn into dogma, believed by those who created it in the first place” ~Alistair Lamb (Kashmir, A disputed Legacy)
P.S: The first unilateral change of draft article 370(at that time numbered as article 306A) by Gopalswamy Aiyengar & Moulana Abul Kalam Azad before it was adopted by Indian Constituent assembly .The duo first approached Abdullah for his consent to the required change in said Article which was turned down by him. Thereafter they made the changes on their own and got the article approved by Constituent Assembly. But what was team Abdullah(the other members being M/s Afzal Beg, Maulana Masoodi & Moti Lal Baigra) doing at that precise moment. Sitting in Parliament Canteen sipping tea or indulging in other recreational activities? They did not bother to be in the Assembly to safeguard their interests and further failed to move an amendment resolution once the treachery came to their notice. So much for ‘we have given sacrifices for Article 370″ wails by National Conference. (Zulfikar Majid – Countercurrents)
Note: Instrument of Accession signed by the Maharaja is itself debated by various commentators and historians. India has not been able to produce the instrument of accession to the United Nations but only in its published form (which is not accepted). Infact Kashmir: A Disputed Legacy, 1846-1990 by Alastair Lamb is banned in India because of the facts that debunk India’s claim on accession.
“A Comprehensive Note on Jammu and Kashmir: The United Nations.” Embassy of India, Washington D.C. Accessed 2 July 2007. http://www.indianembassy.org/policy/Kashmir/Kashmir_MEA/UN.html.
United Nations Security Council Resolution 47 (1948) on the India-Pakistan Question. Adopted 21 April 1948. Document No. S/726. http://www.kashmiri-cc.ca/un/sc21apr48.htm.
QAISER JAVED MIAN. RESOLVING KASHMIR DISPUTE UNDER INTERNATIONAL LAW
A.G. Noorani – Oxford University Press, 2011