Kashmir and Article 370: A Political Quintain

Rashmeet Kaur[1]

Who knew, the heaven on earth will be a hell of politics, the place sold decades ago by British will never be owned by its own citizens and a place of peace will end up as quintain of two countries. The obsession of integration will be a politics of secrets and personal relations will bottom up the whole demography and geography of a state.

Article 306-A which was a drafted provision for the interim government, will eventually end up being incorporated as a temporary provision in the Constitution of India as Article 370.

The history goes back to the call of integration of all princely states which were given three choices:

  1. To merge with India
  2. To merge with Pakistan
  3. To remain Independent

Maharaja Hari Singh, the then ruler of Jammu and Kashmir wanted an independent status for his state so he did not sign the Instrument of Accession but Pakistan troops used it as advantage and invaded Kashmir, therefore in order to protect the territory, Hari Singh reluctantly signed the accession, but an interesting yet mostly misapprehended subject is the Instrument of Accession itself. According to many people, politicians and even jurists, the Instrument of Accession executed by Hari Singh was absolute and same as all other remaining princely states.

Justice A.S. Anand wrote, ‘This IOA was unconditional, voluntary and absolute. It was not subject to any exceptions. As such, it bound the State of J&K and India together legally and constitutionally. And so, regarding the legality of the accession in the judicial sense of the word there is no doubt’[2]

But, if one reads the clauses of Instrument of Accession, then it is no difficult to interpret the conditions and deciding the nature of the accession. Clause 7 states-

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 arrangements with the Government of India under any such future constitution. Thus, this clause automatically gives special status to Jammu and Kashmir and Clause 8 safeguards the sovereignty of the ruler of the state.

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Clause 8 states that-

Nothing in this Instrument affects the continuance of my sovereignty in and over this state, or, save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this state or the validity of any law at present in force in this state.[3]

In a way or another, it wasn’t Article 370 or Sheikh Abdullah which wanted an Independent State, but it was Hari Singh himself. But it was all about intention, Hari Singh wanted Dogra reign to flourish and rule, therefore he protected powers vested to the ruler and gave Government of India limited powers to make laws on three subjects:

  • External Affairs
  • Defence
  • Communication.

But Pakistan never accepted this accession as it had already signed standstill agreement with Hari Singh since India refused to sign it; therefore, they argue that the accession was fraudulent and coerced. Further situations got more complex when Sheikh Abdullah came into power. Nehru’s personal friendship with Sheikh Abdullah was crystal clear, but the manner Hari Singh was treated made it evident that how much he was disliked by Nehru. The interim government so formed, was till the restoration of peace in Kashmir, and in midway of internal conflicts, Nehru finally called up UN on 1 January 1948, and the solution was a Plebiscite after things fall in place, and in January 1949, finally began their ceasefire, but situations were never restored, hence there was no plebiscite and voice of Kashmiris in the whole matter.

Though every state was given freedom to draft its own constitution but the process was slow, therefore in April 1949, it was decided that the task of framing State Constitution would be relegated to Constituent Assembly, to which Sheikh Abdullah refused and insisted upon the institution of a separate Constituent Assembly and separate Constitution of Jammu and Kashmir and in a special National Conference, besides heavy opposition, Nehru decided that a separate Constitutional Assembly should be created for granting temporary autonomy the vulnerable state and that’s how the drafted Article306A came into constitution as 370 and was kept under Part XII of the Constitution under “Temporary, Transitional and Special provisions”, though being temporary, it has remained the most debatable article so far, irony is that it is it is temporary yet debatable, what if it was granted iron-clad autonomy, as Sheikh Abdullah desired? The Preamble of Jammu and Kashmir is prima facie on being the integral part of India, yet Article 238cannot be extended to Jammu and Kashmir and all other laws mentioned in Instrument of Accession are to be made after consultation with State Government of state. Clause 3 of article 370 says that President of India was legitimized to modify the operation but not provisions of the article with concurrence of the State Government and subject to the final approval of the state.

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But, there lies a two-fold problem with the Article 370, firstly the Constitution of Jammu and Kashmir has no mention of Article 370. Secondly, it is the only link of relationship with the State, other articles either being complementary or subordinate in nature, therefore its abrogation would not only mean the repudiation of temporary provision but also annulment of India and Jammu and Kashmir long- standing relationship.

Amidst of all chaos that diplomats and politicians created, the ultimate sufferers were commoners. They were falsified with a hope of plebiscite that never happened, on top of it, M.C.Chagla remarked, “I wish to make it clear on behalf of my Government that under no circumstances can we agree to the holding of a plebiscite in Kashmir.”[4]

Abrogation is also no solution as the former Chief Justice of the Jammu and Kashmir High Court, BA Khan argued last year, “if Article 370 is abrogated, then technically and legally, the foundation of Jammu and Kashmir’s accession to India would cease to exist.”[5]

An article which was opposed by principle drafter, an acceptance which was given just to please someone’s personal interest and the ultimate consequences which left us with state where neither citizens nor government has faith on us, this is Kashmir, where only politics did naked dance and the worsening situations are a naked truth of a long dated mistake.

The only solution in my opinion is to go for plebiscite, since no government has been able to restore the faith in people, judiciary needs to play a role, an honest poll after restoring the faith of people, or amendment to provide special status to Jammu and Kashmir as granted under Article 371-371I. The penultimate solution can be restoring the situations at earliest and giving an end to the internal armed conflict and relaxation with regards to AFSPA, because it is not about Kashmir it is about Jammu and Kashmir.

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Supreme Court of India recently gave judgment that justice is a part of Article 21; therefore, it can transfer cases being adjudicated by the courts in Jammu and Kashmir to other courts[6] and in another judgment[7] it was ruled that sovereignty of Jammu and Kashmir lies within the Constitution of India, therefore it is explicit that Supreme Court is actually supreme in nature and the solution can be more judgments and transfer of judges to and from that state, this will not only allow to understand the working of Jammu and Kashmir.

High Court, but will build a trust relationship that will make easy to take high steps in future and a possible plebiscite after restoring the faith of people in Indian Judiciary, if not Government.

[1] Student, Ballb, 2nd Year, Aligarh Muslim University, Aligarh.

[2] Sanjeev Nayyar, Was Article 370 Promised When The Instrument Of Accession Was Signed (Jul. 1, 2018, 2:00 Pm), Https://Www.Esamskriti.Com/E/History/Indian-History/Was-Article-370-Promised-When-The-Instrument-Of-Accession-Was-Signed–1.Aspx.

[3] Ibid.

[4] External Publicity Division Ministry Of External Affairs, Government Of India Kashmir The True Story 3 (2004).

[5] Article 370 – Understand The Historical Context And The Text Before You Talk About Repeal, Mylaw (November 28, 2019), Http://Blog.Mylaw.Net/Article-370-Historical-Context-And-The-Text-Should-Inform-Any-Debate-Over-Repeal/.

[6] Anita Kushwaha V. Pushap Sudan, Transfer Petition (C) No. 1343 Of 2008.

[7] Kumar Doab,Jammu And Kashmir Constitution Is Subordinate To Constitution Of India, Lawyersclubindia (November 28, 2019), Http://Www.Lawyersclubindia.Com/Articles/Jammu-And-Kashmir-Constitution-Is-Subordinate-To-Constitution-Of-India-7904.Asp.