Article 370

Topics: United States Constitution, Constitution of India, Kashmir Pages: 15 (5401 words) Published: January 2, 2012
While the Constitution recognises in Article 370 the special status of Jammu and Kashmir, the Central Government's policies since 1953 have totally undermined its autonomy. Senior lawyer and political analyst A.G. NOORANI discusses both aspects and suggests a way out of the mess.

"I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion..." "We have fought the good fight about Kashmir on the field of battle... (and) many a chancellery of the world and in the United Nations, but, above all, we have fought this fight in the hearts and minds of men and women of that State of Jammu and Kashmir. Because, ultimately - I say this with all deference to this Parliament - the decision will be made in the hearts and minds of the men and women of Kashmir; neither in this Parliament, nor in the United Nations nor by anybody else," Jawaharlal N ehru said in the Lok Sabha on June 26 and August 7, 1952. - Selected works of Jawaharlal Nehru, Vol. 18, p. 418 and

vol. 19 pp. 295-6, respectively.

"From 1953 to 1975, Chief Ministers of that State had been nominees of Delhi. Their appointment to that post was legitimised by the holding of farcical and totally rigged elections in which the Congress party led by Delhi's nominee was elected by huge majorities."

- This authoritative description of a blot on our record which most overlook was written by B. K. Nehru, who was Governor of Kashmir from 1981 to 1984, in his memoirs published in 1997 (Nice Guys Finish Second; pp. 614-5).

THOSE who cavil at Article 370 of the Indian Constitution and the "special status" of Kashmir constitutionally ought to remember the "special" treatment meted out to it politically. Which other State has been subjected to such debasement an d humiliation? And, why was this done? It was because New Delhi had second thoughts on Article 370. It could not be abrogated legally. It was reduced to a husk through political fraud and constitutional abuse. The current debate is much more than about restoration of Article 370 by erasing the distortions. It is about redressing a moral wrong. The United Front government's minimum programme, published on June 5, 1996, said "respecting Article 370 of the Constitution as well as the wishes of the people, the problems of Jammu and Kashmir will be resolved through giving the people of that State t he maximum degree of autonomy."

Constitutional abuse accompanied political fraud. Article 370 was intended to guarantee Kashmir's autonomy. On December 4, 1964, Union Home Minister G. L. Nanda said it would be used to serve as "a tunnel (sic.) in the wall" in order to increase the Cent re's power.

The State was put in a status inferior to that of other States. One illustration suffices to demonstrate that. Parliament had to amend the Constitution four times, by means of the 59th, 64th, 67th and 68th Constitution Amendments, to extend the President's Rule imposed in Punjab on May 11, 1987. For the State of Jammu and Kashmir the same result was accomplished, from 1990 to 1996, by mere executive orders under Article 370.

Another gross case illustrates the capacity for abuse. On July 30, 1986, the President made an order under Article 370, extending to Kashmir Article 249 of the Constitution in order to empower Parliament to legislate even on a matter in the State List on the strength of a Rajya Sabha resolution. "Concurrence" to this was given by the Centre's own appointee, Governor Jagmohan. G.A. Lone, a former Secretary, Law and Parliamentary Affairs, to the State Government described in Kashmir Times (April 20 , 1995) how the "manipulation" was done "in a single day" against the Law Secretary's advice and "in the absence of a Council of Ministers."

The Nehru-Abdullah Agreement in July 1952 ("the...
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