Article 370: A Bridge Between India And J&K

The legality of Article has been settled by Supreme Court in Sampat Prakesh Case in 1969 by holding it permanent provision of constitution enshrined by Constituent Assembly. Article 370

Mir Shahid

Lok Sabha elections are underway in the nook and cranny of country. The incumbent BJP on one side and the Grand old Congress in other side are deeply engaged in campaigning. The war of words and the intensified uproar over critical security matters have highly charged the atmosphere. It’s to be noted that BJP is once again banking on deeply embedded conservative stance of National Security and National Unity thanks to Pulwama Attacker who provided opportunity.
Coming down to Manifesto issued by BJP, the abrogation of Article 370 and 35 A granting special constitutional status to Erstwhile Princely state of Jammu and Kashmir as agreed in Instrument of Accession. To its historical side the whole state of j and k was princely state under British rule. The partition plan provided all such states a choice to join either country or remain independent. While on one hand the other states choose to seek their future with either country through referendum, the Kashmir’s instability refrained from any such possibility in this territory. The Tribal attacks overturned the whole scenario and took the wind out of sail from Maharaja Hari Singh who seeks help of India on basis of instrument of accession with commitment from J L Nehru to hold the referendum later. But the escalation and the invasion compelled him to take the dispute to UNSC table which provided for Plebiscite under supervision of UN for lasting solution to be decided by the commoners of whole state. So means to Article 370 is nothing but status agreed to in Instrument of Accession with India.
It obliges centre to refrain from legislation except Foreign Affairs, defence and communication. It therefore ensured the internal autonomy for state on the premises of incomplete merging agreement with Indian union. Therefore the legislative and executive spheres were left void for state assembly with separate president and prime minister who was later renamed by an amendment. Nowadays a new and unique grapevine abuzz in the public fraternity is the abrogation either by Supreme Court in response to various petitions filed in this regard. And the momentum with which BJP is charging atmosphere with a promise of its abrogation after returning to power has been awry for the already derailing security scenario of state. Apart from this challenge to Article 35A giving exclusive powers to State Legislative Assembly to define the Permanent Residents of state and grant them the required benefits in Scholarship, employment, immovable property and other public aid and welfare in the state. The challenge on behalf of its induction without formal amendment irrespective of clause (I) of Article 370 entrusting powers to make exceptions and modifications in respect of j and k is also a bone of contention. It’s the exception and exceptions can’t be weighed against arguments grounded in formal articles of constitution. Just as President’s Rule is exception which brings state completely understand Central control without formal amendments. The state of J and k enjoys exception grounded in Historical facts not the relationship of Union with other states and other provisions governing them. Now the cloud hanging over the possible modification or the abrogation around special status has drove the cart towards bleak and horrible memories of past. It’s to be mentioned abrogation of articles as per Amit Shah (BJP President) has always been in the agenda of Janta Parrivar which he says delayed due to modification to try the healing touch policy. But the million dollar question is can it be abrogated? Is Article 370 amendable? Is the Instrument of Accession alive in the eyes of Article 370? If abrogated, can it solve the long standing political dispute? The questions insight can be possibly answered on twin parameters of Legal and security dimension of Constitution and State respectively.
The legality of Article has been settled by Supreme Court in Sampat Prakesh Case in 1969 by holding it permanent provision of constitution enshrined by Constituent Assembly. Therefore the oft repeated Argument of experts and legal luminaries like Subramaniam Swamy that it was temporary meant for temporary stability of state in wake of derailing security situation is misleading and miscarriage of Justice meted out by Honorable Supreme Court. Moreover it’s to be mentioned that Article 370 isn’t any favor or sine qua non but the promise and agreement between highest officials of the Princely state and country. The essence of Article shall not be measured in terms of Union alongside other states but the historical context which compelled J L Nehru to insert this exception for state. Nowhere does the Article itself mention the temporary stability as precondition for its existence nor does mentioned by constitution in separate article anywhere. Adding another feather in the cap, the Honorable High court of J and K in 2015 repeated stand of SC and held that “Article is permanent feature of constitution”. On the other side of story the relationship of state with union of India is governed by Article 370 which was later modified to extend the execution of CAG, SC, EC etc to State year after year. Now, if the Article is altogether abrogated the only relationship left is the Instrument of Accession. It is because the historical narrative of state with union is enshrined in the said agreement. However the Instrument of Accession itself is reflected and represented by Article 370 whose legality has been challenged. The abrogation would itself hold the relationship null and void because anything outside constitution of India isn’t applicable and implementable. Then the state may catch the attention of UNSC where pending resolutions for Plebiscite await implementation. The statement of former CM Mehbooba Mufti in this regards “Abrogation would unintentionally grant us freedom” is without exaggeration a measured statement if seen through prism of law and constitution. Therefore the campaign promise of Abrogating Article is misleading and baseless not to be cared for by citizenry. The Article is an elusive elixir for the relationship which needs to be revived and implemented in letter and spirit for cementation of ties else the state may reach the pre 1947 stage.
On the second note the Article as per essence is but a last Ray of hope in the eyes of common people in Kashmir. It provides the unique identity and sanctity as was deemed to be after withdrawal of British. The modifications brought after the gamble of Sheikh Abdullah and others has took the state to a worst security scenario. But the eternal conflict of Article puts the debate of Special Status to hot burner. Because the defence or what is presented in layman’s language security has been left for Central Government in the Article itself. It’s to be noted here that AFSPA is in operation from years in the state of J and K which has brought to fore hundreds and thousands of Human Rights violations and deteriorated rather than improving security of state. The extremist wave is in the highest Pinnacle after 90 episodes with unique mobilization of local support amplified by joining of intellectual class in the rebellion. The post-Burhan period is witnessing completely different narrative in the history of Kashmir. It seems that south Kashmir is governed and guided by rebels with panning out for Rifle snatching, murdering any informer , Attacking convoys , barring Ministers and MLAs to visit constituencies et al . The voter turnout for recently held Panchayat and Municipal elections of south Kashmir came to be ignored numeric with majority of uncontested seats. The recent episode of stone pelting to convoy of Mehbooba Mufti, former CM is nothing but Manifestation of prevailing alienation in the youth. It’s when the mainstream and hitherto separatists are on opposite page that security situation is far from satisfactory. Now on the page of Article 370 the mainstream parties including most obedient and loyal Abdullah Family has raised the reservation and put the ball in court of Central Government. Therefore security environment as per some Military veterans and in-service generals have warned and advised for political outreach to any satisfactory outcome. The Northern Command has oft repeatedly issued Statements that Operations can’t guarantee the permanent solution to eternal political dispute. The possible solution in this atmosphere would have been revival of pre Delhi Agreement situation not the debate of abrogation. The erosion would entirely draw carriage from bad to worse in the length and breadth of Kashmir. The need of hour is to rise above from the narrow political opaqueness and bring in a piecemeal strategy through revival of Article 370 in pristine form in letter and spirit and remove the AFSPA by winning the people in confidence building measure or the security situation shall not improve in future. Those who sought the abrogation never keep interests of nation in consideration.