Confusion of Article 370

It often happens that someone deliberately conjures a fiend and then for some time this fiend begins haunting the capital cities of India and India-administered Kashmir (hence forth referred to as “Kashmir”). This time it was Dr. Jitender Singh Rana, Member Indian Naional Parliament, recently elected, who conjured up the demon. The demon, called Article 370, is now making rounds in Delhi, Jammu and Srinagar.

The right-wingers of India now and then throw feelers that they intended to end this Article of the Constitution of India. This to sound Kashmiri Muslim majority who have become overly allergic (for quite wrong reasons, in my opinion) to the suggestions of cancellation of this Article. They think, again wrongly, that this Article had conferred them autonomy. But history is witness to the fact that this Article did not confer autonomy to Kashmir given the fact that Kashmir was autonomous even before this Article came into existence; and was autonomous even during British times.

The truth is this Article eroded Kashmir’s autonomy. Furthermore, the truth is this Article was a device to make the idea of a UN sponsored Plebiscite in Kashmir redundant because it laid down that the provincial Constituent Assembly of Kashmir would decide the future relationship of Kashmir State with India thereby bye-passing UN Resolutions and sidelining Pakistan, the first and foremost party to the International Sovereignty Dispute over Kashmir.

Moreover, Kashmiri Muslim majority need not worry too much about its abrogation by the national government of India because the latter have no authority to do so unilaterally as this Article itself lays down that the process of abrogation should be initiated by the provincial Constituent Assembly of Kashmir. Provincial Constituent Assembly should recommend to the President of India to repeal this Article, then and only then could the President issue a Notification declaring that this Article shall cease to be operative.

Now, provincial Constituent Assembly does not exist in Kashmir. That ended its life in 1957. However, if, as the right-wingers of India would wish to argue and this argument is a double-edged one, today’s provincial Legislative Assembly be accepted as a continuation and extension of former Constituent Assembly, then this today’s provincial Legislative Assembly might recommend repealment of Article 370 to the President of India.

But then one would have to accept this argument also that today’s provincial Legislative Assembly could as well amend and revisit the whole Constitution of Kashmir.

One more point of note: The provincial Constituent Assembly was an incomplete body because the 25 Members from across the CFL did not turn up. And so is today’s Legislative Assembly incomplete in the absence of “Azad Kashmiri” Members.

One more point: What is Article 370 all about: From 27 October 1947 onward the relationship between Kashmir and India rested on the “temporary” Instrument of Accession extracted from a cornered Maharaja. The final disposition of the territory of Kashmir State – internationally recognized as a dispute – was to be decided through a UN sponsored Plebiscite. However, the national government of India were not enthusiastic about the notion of a Plebiscite knowing well that its result would go against them.

Even so the UN Commission for India and Pakistan (UNCIP) passed Ceasefire Resolution on August 13, 1948 followed by Plebiscite Resolution on January 5, 1949. These Resolutions envisaged the appointment of a UN-nominated Plebiscite Administrator with full powers to be appointed by Maharaja of Kashmir. For this purpose the Maharaja was required to dismiss Sheikh Abdullah, Interim Prime Minister, his own appointee, and appoint Retired Fleet Admiral Chester William Nimitz of USA (nominated by UN on March 22, 1949) as PA and himself step aside.

Upon the appointment of PA, the State of Pakistan was required to withdraw all its forces, regular and irregular, from “Azad Kashmir”. Subsequently the PA would keep "Azad Kashmir" under his surveillance. Instead of allowing the Maharaja to dismiss Sheikh Abdullah and appoint PA in his place, the national Government of India forced him into exile in June 1949. Simultaneously they fabricated a myth that Plebiscite could not be conducted because Pakistan State did not withdraw its forces from "Azad Kashmir". This myth was/(is being) meticulously propagated by the Indian State so much so that it displaced the actual truth. The actual truth was/(is) that Plebiscite could not be conducted because the Indian State did not allow the Maharaja to appoint PA in place of Sheikh Abdullah. So Kashmir continued to hang in unresolved confusion.

At the end of that year, 1949, India adopted a Constitution and changed its relationship with Kashmir as laid down under the provisions of the “temporary” Instrument of Accession to that of Article 370 of their Constitution. This Article 370 laid down:

1. The Article 238 (which dealt with designation of heads of Part B States, i.e., the heads of Princely States, described as Rajpramuks) of Indian Constitution would not apply to Kashmir;

2. The power of the Indian Parliament to make laws for Kashmir would remain limited to the subjects as specified in the Instrument of Accession, i.e., Defence, Foreign, and Communications;

3. The power of Indian Parliament to make laws for Kashmir with regard to other subjects than specified in the Instrument of Accession would be extended with the acceptance (concurrence) of the provincial government of Kashmir represented by Deputy Maharaja (Regent Yuvraj Karan Singh) and his Council of Ministers (in short Sheikh Abdullah’s Interim Government) and in future with the concurrence of the provincial Constituent Assembly of Kashmir;

4. Finally when all the powers of Indian Parliament to make laws for Kashmir in all matters had been extended to Kashmir, the provincial Constituent Assembly would recommend to the President of India to repeal Article 370 itself.

In short this Article 370 and the Constituent Assembly that it talked of were part of the grand strategy to make irrelevant the idea of Plebiscite in Kashmir, and instead of allowing settlement of future disposition of Kashmir through UN sponsored Plebiscite the national government of India sought to integrate Kashmir through the devices of Article 370 and provincial Constituent Assembly.

So this Article 370 and the Constituent Assembly that it mentioned, were primarily parts of a fraud played to Kashmiris while as at the same time they heaped all the rubbish upon the State of Pakistan that they were/are responsible for non-conduct of Plebiscite for not withdrawing forces from “Azad Kashmir".

Although Sheikh Abdullah was party to this fraud initially, he soon (1952) realized that he had committed an error by accepting Article 370. He perceived that if under the provisions of this Article the powers of Indian Parliament to make laws for Kashmir in respect of matters other than those covered in the Instrument of Accession were extended to Kashmir, he would soon be reduced from an all-powerful Prime Minister of autonomous Kashmir to Chief Minister, one among many.

So, there was a clash of interests between him and Prime Minister Nehru of India and the later jailed him (1953) for acting in contravention of this Article. His incarceration delayed the process of integration of Kashmir by a decade when in the year 1964 his own protégés, whom he had raised from non-entities, almost ended the autonomy of Kashmir by acquiescing to the extension of Articles 356 and 357 of the Constitution of India to Kashmir.

What remained of Article 370 since then was an empty walnut, the nut having been eaten away by India. And the height of the matter is that the right-wingers of India are intolerant even of this empty walnut.

Now the question whether Article 370 should continue or go? My opinion is that it should go because it (and its daughter the Constituent Assembly) perpetuated Kashmir Dispute rather than resolve it. And the best way to finish it (Article 370) would be to conduct Plebiscite in Kashmir.