Guest post by GAZALA PEER

On 13, October 2010 a team of interlocutors was appointed by the Government of India to hold dialogue with all the sections of the society in Jammu and Kashmir. The team of interlocutors consisted of journalist Dileep Padgonkar, educationist Radha Kumar and the former Information Commissioner M. M. Ansari. After almost one and a half years the report was released on 24 May 2012 by the Ministry of Home Affairs (.pdf here). The report calls for formation of a Constitutional Committee to review the extension of central laws to the state of J&K from 1952 onwards. Some of the major recommendations are: changing the temporary nature of Article 370, dividing the state into three Regional Councils and appointment of the Governor but after consultation with the state legislature. The Report further says that the findings of this Constitutional Committee shall be binding on all the ‘stake holders’ in the State.

On perusal, the report has nothing new or worthy to offer at least on the issue of extension of central laws. The finding in the report is a mere reiteration of what is already accepted, acknowledged or confessed in the past. On 27 November 1963, Jawaharlal Nehru said in the Lok Sabha that,

“Article 370 has been eroded… some fresh steps are being taken and… it (erosion of Article 370) will be complete…”

Similarly, Gulzari Lal Nanda on 4 December 1964 said in the Lok Sabha that,

“Article 370 is a tunnel… a good deal of traffic has already passed and more will… Article 370 whether you keep it or not, has already been completely emptied of its contents.”

Not long ago, the Working Group on Centre-State Relations headed by Justice Sagir Ahmad in its report confirmed that all the parties in the state agree that Article 370 has been used to extend central laws to the State of J&K only to undermine its autonomy. The State Autonomy Committee set up by the Government of J&K enumerated illegalities done under the garb of Article 370. This report was adopted by a resolution recording its acceptance in the State Assembly.

The recommendations of the interlocutors need some attention, though some of them can be a reason enough to give you a good laughter. Here I comment only upon on the recommendation which says, “Delete the word ‘Temporary’ from the heading of Article 370 and from the title of Part XXII of the Constitution and replace it with ‘Special’ as has been used for other states under other Articles for Maharashtra, Gujarat, Sikkim and Northeast.” 

The tampering with the Article 370 has already played havoc with the autonomy of the State and the Article is denuded of all its substance. A little is left. One of remnants is the temporary nature of Article 370. The word ‘temporary’ stands as a reminder that the constitutional relationship between India and J&K too is temporary. It must not be forgotten that not only Article 370 but also the Instrument of Accession governs the relationship between India and J&K. The Instrument of Accession signed by the monarch of J&K in favour of India is provisional and the temporary nature of Article 370 is proof of that.

Here it will be interesting to recall the Indian Constituent Assembly (ICA) debate on Article 370 (Draft Article 306-A). On 17 October 1946, the motion for discussion on the Draft Article 306-A was thrown open. Maulana Hasarat Mohani asked the President ‘why this discrimination?’, denoting the special status of J&K. Gopalaswami Ayyangar, who was in charge on behalf of India to negotiate with Sheikh Abdullah on the draft of the Article explained, referring to the ‘tribal invasion’:

“The discrimination is due to the special conditions of Kashmir…Part of the State is still in the hands of rebels and enemies.”

He went on to say: 

“We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.

Government of India... have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves… We are also committed to ascertaining this will of the people by means of a plebiscite...”

The motion was passed by the ICA recognising the special conditions and circumstances and acknowledging the commitments India has towards J&K. So, replacing the ‘temporary’ provision with ‘special’, as has been used for other states like Maharashtra, Gujarat, and northeast has no basis, legal or moral.

It must be noted that before the draft was introduced in the ICA it had already taken five months of negotiations between India and the members representing J&K at the time. Article 370 never intended to establish a ‘special’ relationship between India and J&K as has been the intention of other states. The recommendation to make the Article a ‘special’ provision would bind the State of J&K to India in India’s favour.

On the other hand many argue that it will have no such effect. It will be just a thing of nomenclature. Yet, the word ‘temporary’ is a reminder that India is yet to fulfil its commitments towards J&K. The position should have been that Article 370 was dropped when the State got its own Constitution putting an end to any relationship of J&K with India. As Ayyangar explainedL

‘after the State’s Constituent Assembly met the President on the recommendation of the State’s Constituent Assembly issue an  order that the Article shall cease to be operative or shall be operative only subject to such exceptions and modifications… for which the recommendations of the State Constituent Assembly will be a  condition precedent.’

The treatment meted with Article 370 is littered with the instances of violation of trust, breaking of promises, misinterpretations and illegalities.

As an instance, deceit made its way into the Article at the very inception when Gopalaswami Ayyangar unilaterally altered the draft, and the motion for adoption of the altered draft was passed by the Constituent Assembly without informing Sheikh Abdullah and his colleagues. When Sheikh Abdullah gave an ultimatum to resign from the India’s Constituent Assembly, Gopalaswami Ayyangar persuaded him by saying that the change was trivial. It may be remembered that only this trivial change made ouster of Sheik Abdullah possible in 1953. Since then there has been no end to it.

The position of Article 370 in the Indian Constitution is very complicated or has been made so. For example on the issue of repeal of Article 370, BJP and other Hindu parties and groups believe that would make union between India and J&K complete. On the same the Supreme Court of India has said that to make any change in the Article the procedure laid down in the same Article has to be followed. A G Noorani is of the opinion that the procedure laid down in the Article can no longer be used as the purpose of the provision was exhausted with the formation and then dispersal of the State’s Constituent Assembly. Rajinder Sachar, former chief justice of the Delhi High Court says that Article 370 is part of the basic structure of the Indian Constitution and cannot be changed radically.

Given the legal entanglement surrounding Article 370, the scary question is if Kashmiris are made ‘special’ where will it lead them?!

It may mean that ‘the wishes of the people of J&K will be undermined once and for all’.

The considerate voices from India who show their apparent solidarity with Kashmiris by offering solutions within the framework of the Indian Constitution will no longer carry any burden of offering such solutions!

Any change in the Article can have far reaching consequences which are often not noticed by the people of J&K.

(The writer is a student of law in Kolkata.)