By Atul Sehgal
Article 370 became lame and partially invalid after 1957 when the basic framework on which its continuation depended was dismantled. Post 1957, the Republic of India through its President needed to invoke Article 368 and settle the fate of Article 370 after consultation with the Government of J&K State. This action is still pending on the part of Government of India and brooks no further delay.
It is a pity that China lays claim on Aksai Chin which forms 19 per cent of the J&K State and Pakistan has occupied 34 per cent of the J&K State thus leaving only 47 per cent of the territory in India’s control. China built-up roads, water barrages, railway tracks, bunkers and other infrastructure over the years in the above territory while India watched silently and helplessly. Pakistan runs an official state government in the portion under its control and India does not bat an eyelid.
JAMMU and Kashmir has been culturally, geographically and historically an integral part of India. It has been home to sages and seers who chose to settle in the picturesque and serene surroundings of the Valley to meditate upon the Supreme Divinity and realise Him. These ancient ‘rishis’ are the people who populated the geographical territory called Kashmir. Our ancient social order divided human community into four categories or ‘varnas’ on the basis of avocation. The Brahmins form the category who indoctrinated people with the right knowledge drawn from the primordial scriptures-the Vedas. The present breed of Kashmiri Pandits comes from the community of above ‘rishis’. They are the progeny of sages and savants who through hard penance had realised the supreme Divinity and gave the unique aura to the region.
With the inception of Islam, the followers of Prophet Mohammad undertook missions for proselytization of people spread and settled in all directions. They were following the injunctions of their ‘holy book’ but in the process, a huge population of the State was detached or alienated from their cultural moorings. Many thousands of persons settled in the Valley were converted to Islam by the means of cajoling, coaxing, alluring or forcing. The result of this action is there for us to see even today. The culturally alienated people of the Valley are confused about their true roots and suffer from a crisis of identity.
The Indian Constitution at the present time is secular in character but it has to be recognised that the Indian nation is a historical, cultural entity and historical acts which diluted or obfuscated this culture are anti national. Promulgation of Article 370 of the Indian Constitution is one such act.
In the light of the above statements, it can be logically concluded that the people who want merger of Kashmir with the ‘Islamic’ state of Pakistan or those who advocate autonomy for Kashmir are inimical to the Indian nation as also the Indian state which is constitutionally secular.
Before proceeding further with our analysis, let us recount and concretise the mistakes or blunders committed by our founding fathers and subsequent political leaders through the course of history of Kashmir which has led to the present sorry plight.
Although an expressed, categorical statement of accession, the Instrument of Accession signed by Maharaja Hari Singh of J&K with Government of India in 1947 was still incomplete. This was a clear, unequivocal Instrument of Accession but its articles were incomplete because in this instrument only three subjects of the State were surrendered to the Indian union. There was no provision of accession with an instrument containing incomplete Articles in Indian Independence Act, 1947. Hence, the Instrument of Accession of J&K was not in accordance with the spirit of Indian Independence Act, 1947.
When Pakistani tribesmen and troops invading the Valley were successfully checked by the Indian Army, the Indian Prime Minister Jawaharlal Nehru, instead of driving the intruders out of illegal occupation, took the matter to UN who declared a ceasefire on ‘as is where is basis’. How could the matter be taken to the UN when J&K had expressly consented to be a State of Indian union by signing the Instrument of Accession?
Lord Mountbatten, with consent of Nehru, decided that the Instrument of Accession would be ratified by the Constituent Assembly of J&K. This was also an irrational, unconstitutional decision. This decision resulted in promulgation of Article 370 of the Constitution of India. Thus were sown the seeds of disintegration of J&K from India.
The continuation of Article 370 as a provision of the Indian Constitution for more than 60 years, is another blunder.
The criminal acts of secessionists and the intruders in the Valley ought to have been severely punished but the mere presence of Article 370 of the Indian Constitution did not allow this to happen. Today, 85 per cent of the Central grant/allocation earmarked for J&K goes to Kashmir and only 15 per cent goes to Jammu region which is not commensurate with the population ratio of the two regions. In accordance with the 60:40 population ratio of the two regions, the allocation needs to be in the same proportion. Article 370 legally restrains Indian investment in the Valley, outsiders settlement in the Valley and even criminal investigation by CBI in the Valley.
Article 370 has ensured over the years that even in the Indian part of J&K, the atmosphere of secessionism fuelled and fanned by those across the border is maintained. The whole Indian state is paying for the exorbitant expenditure of deploying army in J&K and in fighting infiltrators and criminal-secessionists who indulge in violent acts of terrorism. It is a pity that China lays claim on Aksai Chin which forms 19 per cent of the J&K State and Pakistan has occupied 34 per cent of the J&K State thus leaving only 47 per cent of the territory in India’s control. China built-up roads, water barrages, railway tracks, bunkers and other infrastructure over the years in the above territory in its illegal control while India watched silently and helplessly. Pakistan runs an official state government in the portion under its control and India does not bat an eyelid.
India cannot leave it to the UN or the world community to decide the fate of J&K. The UN is dominated by the USA. Continuation of the Kashmir ‘dispute’ is in the larger interest of those world powers that thrive at the discord between India and Pakistan. Time has now come that India, a nuclear armed state, and a fast growing economic powerhouse asserts itself with reason and force that the entire J&K historically, culturally, politically and rightfully belongs to it and takes urgent steps to drive away illegal occupants of the State territory. Abrogation of Article 370 is the first and the foremost step in this direction.
Let us be very clear about the fact that abrogation of Article 370 is technically and constitutionally possible. This Article was incorporated into the Constitution as a temporary measure after Maharaja Hari Singh of J&K signed the Instrument of Accession by accepting India’s dominion in the areas of defense, external affairs and communications. For other areas, the Indian state could establish its dominion after consultation with the Constituent Assembly of J&K. This Article came into being in 1950 when the Muslim dominated areas of J&K had organised themselves into a political outfit—the National Conference headed by Sheikh Abdullah. The National Conference manipulated the process of democratic elections in J&K to come to power and thereafter Sheikh Abdullah for whom Pt. Nehru had a soft corner managed to extract as his prize Article 370 out of India after swearing upon his allegiance to the Indian Republic. This proved to be Nehru’s and India’s undoing. The Article sowed the seeds of secessionism in the Valley. It was a veritable blueprint of discord, sedition and separatism. The Constituent Assembly was disbanded in 1957 following the fulfillment of its purpose—the ratification of the Instrument of Accession. Thus after 1957, the Article 370 contained a defunct provision—-that related to reference to Constituent Assembly for bringing other areas of state governance under India’s dominion.
Thus Article 370 became lame and partially invalid after 1957 when the basic framework on which its continuation depended was dismantled. Post 1957, the Republic of India through its President needed to invoke Article 368 and settle the fate of Article 370 after consultation with the Government of J&K State. This action is still pending on the part of Government of India and brooks no further delay.
Thus the Government of India should lose no time in scrapping Article 370 which will not even require a constitutional amendment. The Government needs to dissolve the present ineffective State government, install President’s rule by sending a Governor, as done in the past by sending Shri Jagmohan and, thereafter, go ahead in right earnest with the task of abrogating Article 370—a blot on the face of Independent India and a slur on the largest democracy of the world. Post scrapping of Article 370, people from the contiguous states of Himachal Pradesh and Punjab may be encouraged to settle in J&K. Let the State be opened up for investment by private sector for establishing industry, especially tourism industry. Let the government also invest liberally in infrastructure and industrial development of the State. J&K will then become truly integral with India—socially, culturally and politically.
If Kerala is God’s own country, Kashmir is the heaven on earth. It is the land where the Supreme Creator expresses Himself through the beautiful valleys, serene lakes and multiple flora and fauna. This State is the crown of mother India and needs to be preserved as her dearest possession. Let nothing, the least politics, come in the way of this.
By arrangement with Organiser, New Delhi
The Kashmir Telegraph is the publication of Pune-based, not for profit, think-tank, Kashmir Bachao Andolan. Write to us at firstname.lastname@example.org