GENESIS, BIRTH, DEMISE AND OBITUARY OF ARTICLE 370 – By RS Mehta

No provision of the Indian Constitution, during its troubled existence, and even in its demise, had attracted as much attention, caused as much controversy, and raised as much passion in the minds of average Indians as Article 370. The arena of this debate had been replete with literature of all hues, from highly technical to highly emotional. While the Indian nationalists hold one end of the spectrum, the other end is held by fissiparous Kashmiri intellectuals, Islamic extremists, and cross-border anti-Indian elements whose causes were espoused from time to time by many politicians within the valley and outside, many of whom had built their entire political career around it. As a result, over a period, the inimical provisions of this article turned into a huge national problem of immense proportion posing a serious threat to the very territorial and constitutional integrity of India. Therefore, understanding the genesis, life cycle, and death of Article 370’s needs careful analysis.

While dealing with this topic in its constitutional dimension, one must remember that the Constitution of India is not merely a legal framework crafted to accommodate conflicting political interests and extra-constitutional aspirations of various sections of India polity. Indeed, a vibrant, aspiring democracy like ours deserves more. Ideally, the Constitution must reflect the innate spirit of one vibrant nation that brings the people together to uphold certain national values, hopes, aspirations of the people who constitute the nation. Character and vitality of any constitution must be judged by the honesty and effectiveness with which it imbibes and enforces the above elements of nationhood. Therefore, without undermining the enormity of the task of safeguarding the freedom of the citizens of diverse states, let us explore the extent to which Article 370 of the Indian Constitution served the objective of achieving the welfare, hope, aspirations, and development needs of the people of Kashmir and to what extent it delivered them in its tumultuous decades of existence?

Brief History of Kashmir

The ancient history of Kashmir is chronicled in the 12th CE epic work of Kalahan called the Rajtarangini  (Pandit, 2017)  and supplemented with the information contained in Nilamath Puran, Visnu-Dharm-Uttar Puran, coupled with the travelogues of travellers from China. Also, a host of indelible archaeological remains of the Sanatan (Hindu) temples in Kashmir, such as that of Avantipora and the oldest sun temple of Anantnag, suggest the existence of vibrant Sanatan (Hindu) culture in the Valley before the 6th century CE. As per the Rajtarangani, the Kashmir valley was an integral part of the Asoka Empire in the 3rd century BCE, when Buddhism was introduced in this region. Buddhism and Sanatan practices (Hinduism) both co-existed harmoniously in this area during his period. (Patel  V, 1971) After that, the Valley had few Tartar and Hun incursions; however, its inhabitants came under comprehensive Islamic influence after Mohammad Ibn Kasim invaded it in 712 CE. Mass conversion, mostly forced upon  the Kashmiri population started in the region thereafter under the patronage of successive Muslim rulers.   In 1586 CE, Kashmir was conquered by Moghul Emperor Akbar. The power shifted to the Afghans with the invasion of Ahmad Shah Abdali in 1750, but it was wrested away from his Governors by the Sikhs under Maharaja Ranjeet Singh in 1819. (Barton, 1934) .   On the death of Maharaja Ranjeet Singh and the defeat of the Khalsa army in the First Anglo -Sikh War, the British government sold the sovereignty of Jammu & Kashmir, to the Dogra King, Raja Gulab Singh for  a consideration of 75 Lakhs Nanukshahi  Rupees through the Treaty of Amritsar on 16 March 1846 and the state  remained with this dynasty till it was acceded to Indian Union by his descendent Maharaja Hari Singh in October 1947. (Bhatia,1997) (Gupta, 2012)

However, for the sake of this Article, it will suffice to say that the seeds of Article 370 lie in clause 7 of the Instrument of Accession, by which Maharaja Hari Singh ceded his sovereignty over Kashmir to the India Union. The instrument of Accession itself was a product of the Indian Independence Act 1947 and an outcome of the memorandum placed before the Cabinet Mission on 12 May 1946 named “State Treaties and Paramountcy”. (Menon, 1999) Draft Instrument of Accession was first circulated when Lord Mountbatten addressed a congregation of rulers of Indian States on 25 July 1947. He advised them that although on the total withdrawal of the Queen’s rule in India, legally, they would become independent, it was in their interest to accede to one of the two dominions, considering the geographical contiguity of their States. He said the Accession was under the Cabinet Mission memorandum of 16 May, which contemplated surrendering only three subjects: defence, external affairs, and communications. He also warned the States, ‘If you do not link with one or other of the dominions, you may be cut off from any source of supply.’ (Menon, 1999) Considering the above,  most princely states of India settled for a full merger with the Indian Union in exchange for a privy purse offered by the Government of India.

Genesis of Article 370

Doubts have been raised about why an ‘Instrument’ that facilitated the seamless merger of other states into the Indian Union during the same period had to give birth to article 370 when it came to J&K ? The Answer to this question lies in the sequence of events that took place at the time of independence and the time when the Constitution of India was finally framed and adopted. As stated above, when the British Crown withdrew its paramountcy in India on 15 August 1947 and restored the full sovereignty to the rulers of 562 princely states, these states had the choice to have their own independent Constitution. (Justice Anand, 2013) However, most did not opt for it as communication, railways, postal services, policing, law and order, and commercial inter-dependence had made the economic survival of small islands of independent administrative units enveloped by the vast territories of the Indian Union unviable. (Justice Anand, 2013)(pp68)

Why J&K was Different?

Compared to the above conditions, the situation in Kashmir was vastly different. Territorially, Jammu and Kashmir was by far the biggest of all princely states, with an area of 84,471 square miles and an estimated population of about forty lakhs, most of which were Muslims, ruled by a non-Muslim ruler. The State had a well-developed administration, bureaucracy and even a full-fledged constitution before its Accession to India. (Fazili, 2008) Unlike other princely states, a strong people’s movement to democratise the rule of autocratic Dogra king Maharaja Hari Singh was active in the Valley. This movement for democratisation and self-rule in the Valley ran parallel to the Indian freedom struggle where prominent democratic leaders like Mr Sheikh Abdullah in Kashmir and Indian freedom struggle movement leader like Pdt Jawaharlal Nehru viewed each other as comrades in arms chasing two different goals, but sharing similar values and passions of their age. (Brecher, 1953) Therefore, it is of utmost importance for a non-Kashmiri to understand that the people’s movement in the Valley, though running parallel to the Indian national movement, was very different in character and orientation compared to the Indian freedom struggle against British rule. Unlike the Indian freedom movement, the people’s movement in the Valley was not directed against the British but against the Dogra rule. (Lavakare, 2005) It was led by two factions: the Kashmiri Muslim Conference, headed by Mr Ghulam Abbas and the Kashmiri National Conference, led by Mr Sheikh Abdullah. (Lone, 2018) Both the above parties had somewhat different agenda and objectives. (Brecher, 1953) The Muslim Conference stood for the Islamisation of the State and complete integration with Pakistan. At the same time, the National Conference claimed itself to be, in a way secular and stood for the self-rule of Kashmiris (Information). National Conference aspired to be independent of both Pakistan and India. Maharaja Hari Singh was the immediate common enemy for both factions and deposing him from power was their common goal. This kind of political dynamics was unique to J & K. This could partially explain why Kashmiri leaders acted so differently compared to the representatives of other states when invited to participate in the Constituent Assembly. (Lavakare, 2005)

The Royal Dilemma

It is also important to understand the circumstances in which Maharaja Hari Singh had signed the Instrument of Accession with India. The period between 15 August 1947 and 27 October 1947 is characterised by royal confusion and indecisions. (Dominique Lapierre, 2009 ) Maharaja’s indecision about accession was due to two reasons – (a) he had a stark dislike for the fundamentalists of Pakistan, and (b) he had an equally strong distrust of Indian democratic leaders like Nehru, who were sympathetic to Sheikh Abdullah – the man who had by then emerged as a prominent challenger to the authority of Dogra rule in Kashmir. (Dominique Lapierre, 2009 )   Consequently, he asked both the governments in India and Pakistan to wait for his decision. Instead, he asked both to conclude with him a ‘Stand Still Agreement’ until he made up his mind whom to join. (Gajendragadkar, 1981)

The predominance of Muslim population in Kashmir and its contiguity to Pakistan had led the leadership in Pakistan to believe that Kashmir belongs to them and should naturally join them. This belief led them to stop sending supplies to the Valley, disrupting communication and using other coercive means to pressurise Maharaja Hari Singh to sign the Instrument of Accession in favour of Pakistan immediately after finalising the “Stand Still Agreement” with him.    On the other hand, Pdt Jawaharlal Nehru exhibited his well-known leanings towards the democratic leaders of Kashmir over royalty and pressurised Maharaja to surrender his powers to the Kashmiri people’s representative before the issues of Accession to India could be discussed and finalised. The Raja was reluctant to do so, hence the delay in decision. (Bhatia, 1997 )

Pakistan loses Patience

Unnerved by Maharaja’s ambivalence and fearing his tilt towards India, the then leadership in Pakistan started encouraging, equipping, and assisting unruly hordes of fierce tribals from within its territories to crossover to Kashmir to create disturbance. Along with tribals, Pakistan also deployed its regular army disguised in tribal clothes to capture Srinagar with the help of pro-Pakistani elements in the Valley. (Bourke-White, 1949) Maharaja Hari Singh did not have adequate resources to prevent or protect the Valley from this clandestine invasion by a regular army and barbaric tribals. It was under these circumstances that he wrote to Lord Mountbatten on 26 October 1947 (Dominique Lapierre, 2009 ) –

“I have to inform your Excellency that a grave emergency has arisen in my State and request immediate assistance of your Government….Though we have a standstill agreement with the Pakistan government, that Government permitted steady and increasing strangulation of supplies like food,  salt and petrol to my State….Afridis, soldiers in plain clothes and desperadoes with modern weapons, have been allowed to infilter into the State…it has become difficult to stop the wanton destruction of life and property and looting. The Mahoora power House, which supplies the electric current to Srinagar, has been burnt. The number of women who have been kidnapped and raped makes my heart bleed. The wild forces thus let loose on the State are marching on with the aim of capturing Srinagar…. With the conditions obtaining at present in my State and the great emergency of the situation as it exists, I have no option but to ask for the help of Indian dominion. Naturally, they cannot send the help asked for by me without my State acceding to the dominion of India. I have accordingly decided to do so, and I attach the Instrument of Accession for acceptance by your government” (Singh’, 1947)

The Mystery

Desperation contained in the above communication suggests that the sovereign ruler of Kashmir was in no position, at that point in time, for hard bargaining with Indian leaders on any aspect of the Accession. He had no choice but to accede to India’s full integration without any precondition. The only alternative left with him for not joining the Indian Union, was a forced surrender to Pakistan, which the Maharaja hated and was desperate to avoid at any cost. To posterity, it remains a mystery even today what prevented Indian leaders from seizing this golden opportunity presented to them on a platter to secure an unconditional integration of the State of Kashmir with India (without Article 370), especially under the circumstances explained above.

Parachuting of Mr Sheikh Abdullah

Strangely enough, the answer neither lies in the legal technicality of the subject nor the political compulsions of that moment but in the unique chemistry of Pdt Jawaharlal Nehru and Mr Sheikh Mohammad Abdullah. As stated earlier, Raja Hari Singh had no fondness for Mr Abdullah. He had been his political tormentor from the very beginning, and constantly challenged his authority in the past. That is why Maharaja Hari Singh never liked him nor hesitated to imprison him whenever necessary.   At this moment, from the Maharaja’s perspective, Mr Sheik Abdullah had no role to play in the negotiations between India and Kashmir as regards to its accession , and nothing would have pleased Raja Hari Singh more than to keep him out of this business. The chronicles suggest that it was Pdt Nehru who put the precondition on the Maharaja of J & K that he must hand over the state powers to Mr Sheikh Abdullah as the people’s representative and the Indian Government will only allow him to represent the State of Jammu And Kashmir in the Constituent Assembly. The Raja had no choice but to nominate Mr Sheikh Abdullah to represent him in the constituent Assembly. The legal and constitutional havoc that Mr Sheikh Abdullah and his team created thereafter in the Constituent Assembly is now history. (Lavakare, 2005) (Bhatia, 1997 )

Havoc in the Constituent Assembly

The first thing Mr Sheikh Abdullah and his team did in the Constituent Assembly was to insist that the Kashmir and India relationship would be based strictly in accordance with para-7 of the Instrument of Accession, which said – “Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into agreements with the government of India under any such future constitution.” (Bhatia, 1997)  Extreme inflexibility displayed by the Kashmiri delegates on this point became a major constitutional crisis and a major challenge to the symmetric federal character of the Constitution. The matter was further complicated by India’s attempt to secure the withdrawal of Pakistani troops from Kashmir through UN intervention. To win its case in the UN, the leadership in India chose not to use force to contain Kashmiri  aspirations within constitutional limits. (Lavakare, 2005)

Prominent leaders like Dr BR Ambedkar and Mr Vallabh Bhai Patel were well known for their opposition to any exclusion of J&K from the legislative jurisdiction of India. However, Mr Sheikh Abdullah went on to press for a draft provision that sought the complete exclusion of J&K from the constitutional organisation of India. Knowing that the Chairman of the Drafting Committee, Dr Ambedkar, may not agree to undertake the task of drafting such provision which he was so opposed to, Pandit Nehru, who was for strangely and in-explicably aligned to Mr Abdullah’s cause, used his influence and clout of his towering personality to induct Mr Gopalaswamy Ayyangar, a prominent aid to the Maharaja Hari Singh to prepare the final draft and get it approved in the constituent Assembly. (Bhatia, 1997 )

Adoption of Article 370

It is not surprising therefore, that very little discussion on this subject is recorded in the minutes of the Constituent Assembly debates.   Nevertheless, assuming that there was no resistance to it is also not true. As per the personal account of a prominent national leader reproduced by Mr Arvind Lavakare in his article “The Truth About Article 370”, published on 23 June 2005, Pdt Jawahar Lal Nehru, before leaving the country for a visit abroad, finalised the draft provisions relating to Jammu and Kashmir with Sheikh Mohammad Abdullah and entrusted Golpalaswami Ayyangar the task of piloting these provisions through the Constituent Assembly. Ayyangar spelt out his proposals in the Congress Parliamentary Party. His presentation provoked angry protests from all sides, and Ayyangar found himself a lone defender, with Maulana Azad, an ineffective supporter. (Lavakare, 2005)

Despite resistance, the bill for special constitutional provision for Jammu & Kashmir was moved in India’s Constituent Assembly. Sardar Patel, the then Home Minister of India, declared – “In view of the special problem with which the Jammu and Kashmir Government is faced, we have made special provisions for the continuance of the State with the Union on the existing basis.” Accordingly, Draft Article 306-A was formally adopted and added to the Constitution of India as Article 370. (Justice Anand, 2013)

 Anomalies   

If an objective and impassionate view is applied with the sole purpose of ascertaining the legal status of Article 370, it becomes apparent that it was a self-applying article that operated ex-proprio-vigore outside the Constitution of India.  However, from a constitutional integrity, federal symmetry, and uniformity point of view, one cannot but agree with the constitutional experts that provisions of Article 370, among other things, distorted the very integrity and consistency of the Constitution of India. Article 370 (2) had created a separate Constituent Assembly for the State of Jammu and Kashmir that became an extra constitutional authority by itself. A healthy and strong constitution demand that there should be only one Constituent Assembly that enjoys absolute power to make uniform provisions for the whole of its sovereign territory. Article 370 became a glaring aberration to it.

By all reckoning,  Article 370 was a part and parcel of Indian constitution till it was abrogated in 2019. Therefore, the power to make deletion and amendment to any part of the constitution of a sovereign nation like India, subject to the recommendation of an authority lying outside the Indian Constitution i.e. the Constituent Assembly of Jammu and Kashmir, gave birth to a strange and unfortunate situation where the Indian Constitution had delegated its sovereign powers to bring about amendments and modifications to itself to an authority away from the Indian Parliament and Indian legislative system. No other state legislature in the country enjoyed such exceptional extra-constitutional power over and above the Indian Parliament. Because of this, Article 370 suffers from a congenital defect of compromising the very integrity and basic structure of a sound Constitution. 

Article 370 – Temporary, Transitional or Special ?

Some constitutional experts had termed the provisions of Article 370 as “special” on the ground that it was introduced it in the constituent Assembly in this manner. However, this term is nowhere mentioned in the Article’s original text as embedded in the Constitution nor used anywhere while referring to it in the Constitution. Therefore, this Article’s ‘temporary’, ‘permanent’ or ‘special’ nature remains an issue of constant debate. The Article was initially placed under Part – XXI of the Constitution titled ‘Temporary and Transitional Provisions’. The above nomenclature was later changed to ‘Temporary, Transitional and Special Provisions’ vide the Thirteenth Amendment Act, 1962. This change created an impression that the nature of Article 370 had changed to ‘special’. Some experts argue that the word ‘Special’ was added not to change the character of Article 370 but to accommodate certain other special provisions like Article  371, 371(A ), and 371( I ) introduced for other states in the subsequent amendments, which were of special nature. The implication of treating Article 370 as ‘special’ is that it changes its nature from ‘temporary’ to ‘permanent’, which many nationalists are not prepared to accept. (Bhatia, 1997 )

Notwithstanding the argument mentioned above, what remains beyond dispute is that the framers of the Constitution conceived Article 370 as ‘Temporary Provisions with respect to the State of Jammu and Kashmir. ‘ Temporary nature of the Article arises from the fact that the power to finalise the constitutional relationship between the State and the Central Government was specially vested in the Jammu & Kashmir Constituent Assembly and Article 370 (2) had put an obligation on the President of India of convening a separate Constituent Assembly for the State of J&K.  Thereafter, the Article itself makes a provision at Clause (3) to “cease to be operative or shall be operative only with such exceptions and modifications” through a public notification by the President of India, provided that the recommendation of the Constituent Assembly has been obtained.” (Article-370(3), 1949)  Therefore, it can be safely concluded that Article 370 was conceived as a constitutional provision that was temporary in nature and the framers expected it to be abrogated at some point of time by the order of the president of India. However, the constituent assembly dissolved itself in 1957 without recommending the abrogation of this Article.  It is interesting to note that a five-judge bench of the Supreme Court of India in 1968 in Sampat Prakash v. State of Jammu and Kashmir had ruled that –

(i)         The wording of Article 370 makes no mention of the completion of the work of the Constituent Assembly or its dissolution.

(ii)        The Constituent Assembly recommended that Article 370 should continue with one modification.

The apex court’s verdict implies that because the Jammu & Kashmir Constituent Assembly had recommended its continuation in November 1952, Article 370 can legally continue to exist despite its original temporary nature. At the same time, it is equally interesting to note that Pandit Nehru himself had accepted on the floor of the Parliament on 27 November 1963 that  ‘Samvidhan ki dhara 370 ghiste ghiste ghis jaayegi.’ (Lavakare, 2005) Thankfully, India did not have to wait any longer for that day.

Constitutional Dichotomy

Irrespective of the debate about the semantics of the word “special”, the fact remains that there were many provisions in the Article 370 that were exceptional by all constitutional standards. For example, the Seventh Schedule of Article 246 of the Constitution that comprises Union, State and Concurrent Lists applied uniformly to all states. However, J&K remained an exception, as the ‘State List’ was omitted by the order of the President issued under Article 370 in September 1963. (Sec-3(b), 1963)  By doing this, all subjects that did not form part of the Union and concurrent list automatically became part of the State list till Article 370 was itself removed by the current Government in 2019.

During its inglorious existence, Article 370 itself gave the President of India the power to issue executive notification to abrogate, modify or restrict its operation in the country. (Article-370(3), 1949) The President of India, unlike the USA, is not elected directly by the people. Hence, in a parliamentary democracy, the President is always required to act on the advice of his Council of Ministers. Constitutional democracy also requires removing or modifying any constitutional provision through a rigorous Parliamentary process. Clause (3) of Article 370 is thus a peculiar provision for a parliamentary democracy like ours. A strange and curious aspect of this provision was its second paragraph, which required the President to take the above executive action on the recommendation of the “Constituent Assembly,” that no longer existed as it was dissolved in March 1957. Continued retention of this provision considering a non-existent “Constituent Assembly” had become dichotomous and constitutional absurdity worthy of getting rid of.

Discriminatory Provisions Facilitated by Article 370 

The controversial operation of Article 370 over a period gave rise to many more strange situations and constitutional contradictions. Section 140 of the State Constitution that took away voting rights from many residents of J&K. Residents who did not enjoy the status of permanent residency prior to 14 May 1954 gave birth to an anomalous situation in which a large section of the permanent residents of J&K who were otherwise entitled to elect their parliamentary representatives from the area of their residence but remained deprived of participating in own state assembly elections from the same area. This anomaly created a situation of  1^st & 2^nd class citizenship in the same constituency which was not only violative of Article 14 of the Constitution of India but counter-productive to unity, integrity, good health and the spirit of the Constitution of the Indian Union. (Lavakare, 2005)

Further, according to the State laws enacted under President’s Executive Order 1954, (CO-48, 1954)  when a male state subject used to marry a female who had been a non-state subject, the non-state subject female automatically enjoyed the privileges of a state subject. In contrast, a state-subject female lost her state-subject status the moment she got married to a non-state-subject male outside the State of Jammu and Kashmir, thus depriving her of the right of succession as well as equality and other benefits under the law and constitutional law. Further, the non-state subjects could not have immovable property within the State. In contrast, the state subjects had full rights as any other citizen of India under the Constitution to own immovable property in other parts of the territory of India. (Bhatia, 1997 )  Also, a child born to non-state subjects within the State of Jammu and Kashmir was not permitted to claim to be a domicile of the State of Jammu and Kashmir because of the peculiarity of state subject notions.

Consultation or Concurrence?

The description of the nature of Article 370 will not be complete if the controversy surrounding the heart of the terms “consultation” and “concurrence” used in Clauses (1)(b)(i), (1)(b)(ii) & (1)(d) dealing with legislative powers of the Indian Parliament in respect to J&K are not deliberated. The essence of these clauses is that laws on matters in the Union List and the Concurrent List can be made for Jammu & Kashmir State by the Indian Parliament only either after ‘consultation’ with the State government or after ‘concurrence’ of the State government depending on the subject matter of the law. The question, therefore, emerges: Can the Indian Parliament, on the above subjects, extend a law to Jammu & Kashmir State when, after consultation with the State Government, it does not get its approval? The UPA government has treated “consultation” differently in several cases while going ahead with certain legislations. “State Autonomy Committee Report,” which was not accepted by the Central Government, has mentioned over 260 Central laws enacted in the Parliament and enforced in the State without the ‘concurrence of the State Government’. (Committe, 2005) The above report tends to interpret the term’ consultation’ mentioned in Clauses (1)(b)(i) & (1) (d) to mean ‘concurrence’, which the Central Government declined to accept.

Since the Jammu & Kashmir Constituent Assembly was on the anvil and only an Interim Government was functional in the State, it was a justified stipulation of Clause (2) that concurrence of Interim Government be placed before the Constituent Assembly for decision after the Assembly had been convened. Once the Constituent Assembly had been dissolved after the first State elections held in March 1957 under the State Constitution brought into force on 26 January 1957, the Constituent Assembly has become moribund and any mention of it now as an ongoing constitutional authority has become superfluous. With no justification for its existence, this provision contained in the Article 370 had long back deserved to be done away with.

Why Abrogation became Necessary ?

More than the reasons stated above, a sizable opinion in the country had always believed that the abrogation of Article 370 was necessary for securing a safe future for India that includes Kashmiris. It was believed that its continued existence was hampering the progress and development of the Kashmiri people and prohibiting their integration into the national mainstream. (Lavakare, 2005) It was often argued that this provision was acting as the leading cause of alienation of Kashmiris from India and giving space and fodder to the secessionist and fissiparous forces. (Bhatia, 1997 ) However, to treat Article 370 as the sole cause for all the problems of Kashmir is also a mistake.

The fact is that the nature of Article 370 was that of an enabler. In its operative life cycle, it merely acted as a conduit through which a part of Indian sovereignty and certain sovereign constitutional powers were siphoned off from the Union of India to the State of J & K. Unfortunately, this transfer of sovereign constitutional powers took place in a very dubious manner,  under very strange circumstances.  Because of this constitutional aberration, a series of anomalous, contradictory, discriminatory, and inimical provisions later started getting enacted one after another in the Kashmiri state assembly in stark violation of many fundamental rights such as the right to equality and employment etc for all Indian citizens guaranteed under Article14 &16 &19 of Indian constitution. (Orders, 1950)

Therefore, many tend to believe that Article 370, over a period had rendered itself redundant. What was left of it was only its empty shell from which most snakes had already crawled out. However, this view is not correct. One of the most incriminatory functions left with article 370 and the one that was most detrimental to India’s sovereignty and constitutional integrity was its continued ability to act as a shield prohibiting the application of many important progressive Parliamentary laws in the valley creating an unwarranted divide in the Indian polity. Therefore, even the residual provisions, powers and functions of Article 370 had become cumbersome and needed removal, in the interest of maintaining a healthy relationship between the Centre and the Sate of J&K. Article 370 was obviously not allowing that. Abrogation of article 370 also had a symbolic significance for the environment and the people of J&K. It gave a strong signal about the end of a dark chapter in the history of the post independent state  and declared the beginning of a new era in the Valley where its stunted growth, increased poverty, illiteracy, unemployment, lack of development and unrestrained militancy could be addressed jointly by the State and the Central Government together without they getting subverted or derailed by the constitutional aberrations exploited by the vested interests.

Missed Opportunity & Great Blunder

In the history of a nation, opportunities come but rare when the destiny of its people can be given a positive shape and direction. The formation of India’s Constituent Assembly soon after independence was one such historical window of opportunity available to the political leaders of that time to solve the problems related to freedom and identity of its diverse multi-cultural society. The circumstances were extraordinarily in favour of India and Indian Constituent Assembly had enough scope to accommodate, harness and channelise legitimate aspirations for freedom and local self-rule of the people of Kashmiri along with the rest of India in a constructive, equitable, and fair manner. Alas, that moment of opportunity was squandered away by the apex leadership of that time. Dr Ambedkar is on record to have said to the Kashmiri delegates in no uncertain terms, “Mr Abdullah, you want that India should defend Kashmir, India should develop Kashmir, and Kashmiris should have equal rights in India, but you don’t want India and any citizen of India to have any right in Kashmir. I am the Law Minister of India. I cannot betray the interest of my country.” (Bhatia, 1997 )  A greater resolve and firmness, as displayed in the case of other deviant states, especially the kind shown in respect of Nizam of Hyderabad and Nawab of Junagarh, could have nipped the problem in the bud. (Lavakare, 2005) Unfortunately, the realism of Dr Ambedkar and the iron firmness of Sardar Patel did not make much dent in the bastions of ‘Nehruvian personalised politics’ and his ‘abundant benevolence’ towards the divisive aspirations of Mr Abdullah. (Bhatia, 1997 )  This ambivalence allowed things to drift into dangerous territory, and the greatest political blunder of the century in India was committed. The subsequent generations paid a heavy price for it. As the “Pandora’s Box” lid was left open, veritable worms crawled out of it. Separatism, extremism, fundamentalism, extra-territorial loyalties, and demagoguery were but a few. Once the power of those forces was unleashed in the Valley, fanned, and fuelled from across the borders, it needed extraordinary political resolve and sagacity to rein them back. In the last seventy years, this resolve and sagacity was lacking in successive governments. Fortunately, the current leadership of Mr Narender Modi dared to rise to the occasion. His majority government, over-riding many dooms day advocates and naysayers,  took the brave step in the overall interest of the suffering Kashmiri people and abrogated the  Article 370 through a parliamentary process that is now under scrutiny at the Supreme Court of India for ascertaining its constitutionality.

As stated earlier, it is doubtful that an abrupt abrogation of Article 370 would solve all the problems faced by the Valley. Removing Article 370 is like removing the cobweb while the spiders remain. It must be understood that Article 370 was not the problem, it was merely an instrument and tool to perpetuate the problem. Therefore, removing the reasons for the problem is equally important along with the instrument through which it was hitherto being perpetuated. Kashmiri people know well that their political and economic well-being lies in not with a failing Pakistan but with resurgent India. They very well know that the federal character of the Indian Constitution is intrinsically symmetrical. The asymmetrical relationship forced upon it by their past Kashmir leaders through dubious means at the formation of the Indian Constitution had proved detrimental to their interest and wellbeing and worked against their politico-economic growth and development. 

Mistress in  House  

Kashmiri leaders like Mr Sheikh Abdullah, with the active help of Mr Nehru, gave the state of Kashmir a disproportionately exalted position within the Union akin to bringing home a heady mistress to whom no rules applied.  For the peace, tranquility and prosperity of the family, members of family deserve equal status and fair treatment.  No member should claim special status and special privileges at the cost of other members. It was a bad strategy of the past Kashmiri leadership to clamor for appropriating extra-constitutional powers and unrestricted autonomy within the Indian Union compared to other states of India. Within a homogeneous group, if one member tries to become more equal than others, it naturally disturbs the equilibrium of the entire group.

The Beauty of Indian Constitution

The beauty of the symmetrical federal framework of the Indian Constitution lies in the fact that it allows the states and its citizens to enjoy full liberty, freedom, individual rights, and enough safeguards to preserve and develop their own culture, religion, and identity with full dignity without outside interference. Kashmiri leadership must get over their misplaced phobia that Indian Parliament is out to rob them of their liberty and destroy their identity, culture, and religion. Indian parliament has not done so with any other state and there is no justification in believing it shall do so with Kashmir. Kashmir’s political class must mature and be clear about these aspects. A new class of moderate, progressive leadership in Kashmir will have to rise above this misplaced, non-productive, regressive attitudes. As far as Central Government is concerned, it must create favorable conditions through vigorous and constructive political engagement, administrative efficiency, and equitable economic growth. Equitable, sustainable, people centric development, and creation of adequate employment opportunity for the youth are the the right antidote to neutralize extremism,  fundamentalism and militancy.

Conclusion

For the reasons explained above, Govt of India abrogated Article 370 along with Article 35 (A) on 5^th August, 2019 (RAJAGOPAL, 2019) through a  Presidential order under Article 370 (3) of the constitution. Since ‘Constituent Assembly’ referred to in Article 370(3) was no longer in existence, the definition of expression ‘Constituent Assembly’ was replaced by the term ‘Legislative Assembly’ at Article 367(4)(d) through a parliamentary process. The BJP government thereafter went on to abrogate Article 370 on the recommendations of the Governor of J&K made to the President of India on behalf of the dissolved State Legislative Assembly. This process has been challenged in the Supreme court by the political leaders opposed to the abrogation. The marathon hearing of the case commenced on August 2 after a hiatus of over three years, by the five judges bench led by the Chief Justice of India who completed their hearing on 06^th September, 2023. The bench has reserved its judgement till further orders. The above epic case was argued by a galaxy of top lawyers and legal experts of India.  The litigants were represented by Mr Kapil Sibal, Rajeev Dhavan, Dushyant Dave, Sanjay Parikh, Huzefa Ahmadi and Gopal Sankaranarayanan. From the side of the central Government Attorney General R. Venkataramani, Solicitor General Tushar Mehta, Mr Harish Salve, Rakesh Dwivedi, V Giri and others acted as respondents. The Supreme Court bench that heard the case comprised Chief Justice DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.

Mr Harish Salve, the top-notch constitutional expert of India, in a recent interview with Mr Karan Thapar, (Salve, 2023)  shared his personal assessment of the case and stated that the Supreme Court is not likely to find any significant infirmity in the constitutionality or the parliamentary process by which the Article 370 and Article 35 (A) have been abrogated. In his opinion the process followed by the central government had constitutional precedence and the notification issued by the President of India was much within his powers contained in the Article 370 (3) of the Constitution of India.  His own assessment is based on his vast experience in dealing with high voltage constitutional matters.

Rapid economic growth and development of the State, effective enforcement of peace, tranquillity, harmony in Kashmir, enhancement of quality of life and welfare of ordinary Kashmiri people will prove to the current and future generations of Kashmiris that removal of Article 370 along with everything that it stood for, was a good decision taken by the Indian Government in the interest of the common Kashmiri citizens. It is hoped that the Supreme Court will not find any technical infirmity in this  abrogation. God bless Kashmir. God bless India.

  – RS Mehta .

Author is a veteran , scholar , researcher and writer . Views are authors own and does not reflect the views of IIRF.

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