Article 370, included in the Constitution as a temporary provision, should have been gradually abrogated but this has not happened in past 67 years

The media is agog with discussion on Article 370 that had been mentioned by Prime Minister Narendra Modi during General Elections and post formation of the new government, a remark by the PMO had caused the Jammu and Kashmir (J&K) Chief Minister go ballistic to the extent that he had the audacity to say that if Article 370 is repealed, J&K will not remain a part of India – as if J&K is the personal fiefdom of his dynasty. That too when the present Chief Minister’s grandfather was arrested for treasonous acts as part of the ‘Kashmir Conspiracy Case’ is well known, while his father’s role is suspect not only in rigging the J&K elections in 1987 (that kick-started insurgency in J&K) but also in orchestrating the massacre and exodus of Kashmiri Pundits from J&K and holidaying in London while Kashmir burned. Thousands of Kashmiri Pundits (estimates ranging from 1,40,000 to 3,50,000) became refugees in their own country living in abject penury ever since. That similar ethnic cleansing was attempted in Kishtwar region of J&K last year under the present Chief Minister is also too well known, with direct complicity of one of his junior minister overlooked through a facesaving inquiry.

The fact that Article 370 was much ill conceived and was allowed to continue under the facade of being a “secular” democracy is apparent from what this section implies, its main fallout being: one, J&K citizens have dual citizenship; two, J&K national flag is different from the Tricolour; three, J&K Legislative Assembly has term of six years compared to five year term in other states of India; four, therefore it is no crime to insult India’s national flag and symbols; five, orders of Supreme Court of India are not valid in J&K; six, Parliament of India may make laws in extremely limited areas of J&K; seven; if a woman of J&K marries a person of any other state of India, she loses citizenship of J&K; eight, in contrast if a woman from J&K marries a Pakistani, the husband (Pakistani) gets citizenship of J&K; nine, RTI does not apply to J&K, RTE is not implemented, the Comptroller and Auditor General of India (CAG) does not apply and Indian laws are not applicable; ten, Sharia law is applicable to women in J&K; eleven; Panchayats have no rights; twelve, minorities (Hindus and Sikhs) have no privileges by way of reservations or otherwise; thirteen, Indian firms cannot invest in J&K so how do you develop the region, and the like. So, it should be clear that even a radical or terrorist from Pakistan that forcibly marries a J&K girl automatically becomes a J&K citizen – something that has been happening for years by design. Additionally, since Pakistan has been infiltrating the rabble across, the incidence of AIDS in J&K has gone up alarming, information of which the state authorities are deliberately hiding but can be verified. Compare all this with Pakistan having changed the demography of PoJK (Pakistan occupied J&K) and China having overwhelmed six million Tibetans by settling seven million Han Chinese in Tibet.

According to two times J&K Governor (1982 and 1989), Jagmohan, the poorest state in India is Bihar, but today Kashmir gets eleven times more Central assistance than Bihar, the plan expenditure [money allocated for development in the Five Year Plan], today it is 100 per cent financed by the Central Government, and between 40 and 45 per cent of the non-plan expenditure (allocations outside the Plan to run the day to day expenses) are met by the Central Government. More importantly, the non-plan expenditure includes the day to day expenses like the salaries of the government employees. More significantly, Jagmohan says, “When I was in Kashmir the first time, I did a lot of developmental work and people forgot about Article 370 and other (political) issues. There was justice, the roads were built, everything was done and people were happy; their attention was diverted from the narrow issues. It is vested interest who keeps this Article 370 and do not allow outside investment to come”. Though Jagmohan did not elaborate further but the fact remains that enormous amount of money flowing in without accountability has led to massive corruption and insurgency is being kept deliberately alive. A 2013 NIA report had revealed that some Rs. 600 crore have been diverted within India to fund terror in J&K and Rs. 98 crore were diverted from the J&K Affectees Fund within a single year. Trucks carrying goods from J&K to PoJK are carrying overpriced invoices and the surplus money coming from Pakistan is being given to terrorists through traders. There are business concerns within J&K assisting infiltration of terrorists from Pakistan. Surely the Omar Abdullah Government is aware and complicit in all this. The State Government has also been deliberately making meager allocations to the regions of Ladakh and Jammu. Jagmohan, however, is direct about keeping the feeling in J&K being different, by saying, “It benefits people who want the power like the Abdullah family; they have exploited this Article, not allowing outside people to come to the State. They have thus created their own sheikhdom…this Article 370 does not help anyone, it hampers economic development. It only helps politicians and narrow-minded people who work only for their selfish interest”.

Article 370 was worked out in late 1947 between Sheikh Abdullah, who had by then been appointed Prime Minister of J&K by the Maharaja and Jawaharlal Nehru, who kept the Kashmir portfolio with himself and kept Sardar Patel, the Home Minister, away from his legitimate function. Hence Nehru is answerable to all acts of commission and omission, consequences of which we are suffering till date as far as J&K is concerned. While Mountbatten persuaded Nehru to take the J&K issue to the UN, Sheikh Abdullah (later arrested in the Kashmir Conspiracy Case) persuaded Nehru to give special status to J&K – both grave strategic oversights. The Pakistanis were on the run and here was no reason to halt the Indian forces to make the enemy vacate whole of J&K. Amusingly, Nehru had then said that Article 370 was a temporary provision and will get eroded over a period of time – but nothing was ever done to repeal it. If that was by design, one can only conjecture. But Nehru could have well done it by design. Why else would Nehru keep the Home Minister Sardar Patel away from the deliberations and enactment of Article 370? Why did Nehru take no action to repeal it over so many years when he himself promised it was a temporary measure? Article 370, included in the Constitution as a temporary provision should have been gradually abrogated but this has not happened in past 67 years.

Then is the issue of repealing of Article 370 and the legality or otherwise about gaining concurrence of State Government by placing it before the Constituent Assembly of J&K, prior to President of India through public notification declaring that this Article will cease to be operative, which is the main plank of Omar Abdullah and subject of the debate. According to J. Sai Deepak, Senior Associate, Litigation Team, at Saikrishna & Associates, writing in Centre Right India on May 28, 2014, the question that needs to be asked is, does the proviso mean that the consent of the State Assembly of J&K as it exists today is a mandatory prerequisite to abolition of Article 370 by the President through a notification? His legal interpretation is that each time the Constitution is amended, the Parliament itself assumes the role of a “Constituent Assembly” since it reconstitutes the Constitution, which applies to J&K’s constitution and its “parliament”/Legislative Assembly as well which is governed by the Constitution of Kashmir, 1957. He points to the importance of this because Article 370 (clause 2) makes a reference to “Constituent Assembly for the purpose of framing the Constitution of the State” i.e. the Assembly as it existed when the Constitution of J&K was being drafted/framed, and not to the State Legislature as it exists today. The crowning alternative J. Sai Deepak provides is that Article 370 can simply be repealed by invoking Article 368, which gives the Power of Parliament to amend the Constitution and procedure; notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. Hence, there is no limitation or restriction on the power of the Parliament to constitutionally repeal any provision of the Constitution, which includes Article 370, subject to judicial review. So, Parliament can invoke Article 368 and repeal Article 370 without the need to take any concurrence of the J&K Legislature.

Whatever the legalities, these surely have been taken into consideration by the new government and logically the issue will be debated in the Parliament at an appropriate time. It is in the interest of India including the people of J&K to repeal Article 370, let the region and the public prosper and integrate with India. The nation certainly cannot be allowed to be kept hostage by the Abdullah dynasty for their own vested interests.