On Article 370

Read my post Why is Jammu Still Burning ?

This is an archival post on the above mentioned article of the constitution

Two part series by Arvind Lavkare

The indeterminate life of Article 370, I and Part II

S. Gurumurthy: ARTICLE 370 SHOULD GO

SHEIKH – AS A RULER.

The Sheikh favoured a situation where he could work out a constitutional relationship with India, in which he would be in a predominant position and would be the ruler. His sole aim was to
dethrone the Maharaja.

When Maharaja Hari Singh sent the S.O.S. pleading, “Please send your army and protect us, we are being subjected to arson, rape and destruction”, the Government of India still wanted to know what the only popular leader in J&K had in mind. Sheikh Abdulla who was in Delhi at that time also supported Hari Singh on his decision to accede to India. He sent a hand-written note to Jawaharlal Nehru agreeing to the Maharaja’s proposal. So, it is not merely the legal sovereign, Hari Singh, who was asking for accession, the Sheikh as the popular leader of Kashmir also wanted accession with India. This is on the records of Government of India. This is on the records of the United Nations also.

MATTER TAKEN TO U.N. – A HISTORICAL BLUNDER.

It was in these circumstances that, on the 25th October the famous ‘Operation Rescue Kashmir ‘ began. The Indian army drove out the invaders and was set to recapture the areas under Pakistani domination, including wha t is presently called ‘Azad Kashmir’. But, on 31st December, 1947 Jawaharlal Nehru committed what was later regarded as a diplomatic and political blunder in taking the Kashmir issue unilaterally to the United Nations. Pakistan was on the verge of a military collapse against India and yet Pakistan was unwilling to take the matter to U.N. because the popular opinion in J&K at that time was in favour of accession with India. And yet, we took the matter to U.N

May be, Jawaharlal Nehru erred. But, the fact remains that the fatal reference of Kashmir problem to the U.N. was made by India. It hangs around our neck even today. This was the position in December 1947. Eventually there was a ceasefire and the war ended on 1st January 1948.

FOUR POINTS.

Article 370, shorn of all its legal complications, lays down a four point criteria for the relationship between the Union of India and the State of J&K.

Firstly, Jammu & Kashmir state is one of the states of India.

Secondly, None of the provisions of the Constitution of India including fundamental rights shall apply to the state unless assented to by the constituent Assembly of the state to be formed.

Thirdly, No law, passed by the Parliament even in respect of  matters with reference to which only the Parliament can pass laws  under the constitution, shall apply to Kashmir unless assented to by the government of the state.

Fourthly, The President may by order specify that the provisions of Article 370 may cease to apply to the state of J&K but no such order shall be issued without the approval of the constituent Assembly, of the State.

GATEWAY OF INDIA

A topic like this is a complicated issue. It calls for intensive discussion. It concerns the integrity of this country. We have to study die geography and the history of this country. Shri V.P.Menon wrote that the country that does not remember its geography and history does so at its own peril. The importance of J&K was emphasised by him in these words. When he went on behalf of Sardar Patel to meet Maharaja Hari Singh on the 25th October, 1947, Hari Singh wanted accession. Shri V.P. Menon reported that to the Government of India and recommended that we should accept the offer of Hari Singh. Sardar Patel supported him, but Jawaharlal Nehru opposed. But V.P. Menon said it was through J & K that Mohammed of Ghazni invaded India 17 times. It was the gateway of India. Those who control that stretch of land controlled this vast country.

Teng and Gadoos: White paper on Kashmir

The Instrument of Accession was evolved by the Secretary in the State’s Ministry of the Government of the Indian Dominion, V.P. Menon in consultation with the Viceroy, Lord Mountbatten, and with the approval of the State’s Minister, Sardar Patel.

Menon persuaded Patel to accept the accession of the States on the basis underlined by Cabinet Mission, thus leaving the Princes in possession of all the powers of the government, except defence, foreign affairs and communications.

In May 1949, the Premiers of the State’s took a stupendous decision in a Conference at Delhi, in which the Negotiating Committee of the constituent Assembly participated and entrusted the Constituent Assembly of India, the task of drawing up the Constitution for the States. In the meeting the Conference leaders blankly refused to accept the inclusion of the State in the constitutional organisation of India. They told the Indian leaders, in veiled words, that they favoured a separate constitutional organisation for the State in view of the Muslim majority character of its population which they feared would be subjected to the dominance of the Hindu majority in India.

Evidently, Article 370 was not in any way connected with the so-called autonomy of the State. In fact, it placed the State outside the federal structure of India, the federal division of powers between the Union and the States and the jurisdiction of the federal judiciary, including its power of judicial review, which guaranteed the autonomous identity of the States in India. Autonomy for the Indian States could only be visualised within the Indian federal structure and not outside the division of powers, it envisaged.

The accession of the States, brought about the irrevocable unification of the Princely States with the State of India, irrespective of whether they accepted to become a part of any future constitutional organisation of India. The integration of Jammu and Kashmir into the State of India was, therefore, brought about by the accession of the State to India and not by Article 370.

The oft-repeated assertion that Article 370 was an enabling act, was politically motivated and used by successive State governments to perpetuate the unrestricted power to rule by decree, vested in them, by Article 370.

The claim of the Conference leaders to plenary powers for the Constituent Assembly, which in the following years became the bane of a serious controversy between the National Conference and the Indian Government had a subtle and dangerous import. Plenary powers would vest in the Constituent Assembly a veto not only on all constitutional relationships between the Jammu and Kashmir State and the Union of India, but also on its accession to India.

History of National Integration

As part of the integration of various States into the country, a three-fold process of integration, known as “the Patel Scheme”, was implemented. As many as 275 States were integrated into five Unions: Madhya Bharat, Patiala and East Punjab States Union, Rajasthan, Saurashtra and Travancore-Cochin. These were included in Part B of the First Schedule of the Constitution. Besides, Hyderabad, Jammu & Kashmir and Mysore were also included in Part B.

At the time of accession to India, the States had acceded only on three subjects — defence, foreign affairs and communications. Later a revised instrument of accession was signed by which all States acceded in all matters included in the Union and Concurrent Lists.
The process of integration culminated in the Constitution (Seventh Amendment) Act, 1956, which abolished Part B States as a class and included all the States in Part A and B in one list.
However, Jammu & Kashmir was given special treatment based on the instrument of accession, which Maharaja Hari Singh had signed and which was accepted by the then Governor General of India.

When other States signed the revised instrument of accession, a blunder was committed by not asking the Maharaja to do the same. On the other hand, Article 370 was incorporated in the Constitution giving a special status to Jammu & Kashmir…From the Pioneer

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2 thoughts on “On Article 370

  1. Your narration of events is not based on facts but on prejudice and propaganda. If you read a well researched book called “War and Diplomacy in Kashmir”by Dasgupta you will know the facts. Nehru never wanted to take the issue to the UN but was fiorced to do so to forestall a resolution that was to be moved by the British resolution calling for an immediate ceasefire when our troops were halfway clearing Srinagar town of the raiders.He also was fully supportive of the Army’s desire to drive out the Pakistanis completely but for that it was necessary to open another front in Punjab to prevent Pak to move troops from there to reinforce their positions in J&K which was opposed by the British as it would have undone the partition since Pakistan was in no position to defend itself agaist the much superior Indian Army. We were twice their size since the partition of the forces was in the ratio of two to one.Besides, we had the logistics in our favour.
    Please stop spreading false notions for the sake of supporting the BJP’s propaganda. Reasearch and analyse and tell the truth.

  2. interesting,
    i was merely archiving what was available on the net for reading – anyways this is what is the popular notion

    I dont know about BJP propaganda but history writing is certainly almost always biased and as i see it there can be 3 versions to the tale
    the british one, the nehruvian socialist one and the bjp one – as u call it.

    Anyways people can counter you by saying this is British/ Nehruvian propaganda

    First who is this Mr Dasgupta? Chandrashekhar Dasgupta was a member of the Indian Foreign Service from 1962 to 2000, serving as ambassador/high commissioner to the European Union, Belgium, and Luxembourg (1996-2000); China (1993-96); Tanzania (1984-86); and Singapore (1981-84)
    and according to what i got it is a recent book published in 2002, based on declassified British documents.-
    i wouldn’t mind giving him a read before forming an opinion but his book is out of print .

    It can however not be denied that Nehru was rather in a hurry on the Plebiscite announcement on the Radio. But overall under Nehru and Menon the country made some rather serious blunders while negotiation with both China and Pakistan on multiple issues be it the Indus water agreement or the soft Indian foreign policy viz a viz China, that lead to the Indo-Chinese war.

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