Why Article 370 had to go in Jammu and Kashmir

Updated: August 6, 2019 3:59:04 AM

The situation emerging in the western neighbourhood and the possible reascendancy of the Taliban in Afghanistan calls for greater attention and care to be taken in what will remain as J&K after bifurcation.

Amit Shah, Amit Shah Srinagar, Amit Shah to visit Srinbagar, Jammu and kashmirJ&K Governor Satya Pal Malik receives Union Home Minister Amit Shah (Express)

By Ram Madhav

August 5, 2019, will be etched in the constitutional history of India as a glorious day. A historic blunder committed about 70 years ago on October 17, 1949, during the course of the Constituent Assembly debates, has been set right, finally. Article 370, which entered the draft Constitution 70 years ago as Art 306A, has finally been abrogated.

Nobody should complain because abrogation of this discriminatory article has been a running theme of the BJP and Jana Sangh. Nobody should have entertained any doubt that PM Modi, a leader with grit and determination, who was instrumental in hoisting Indian tricolour at Lal Chowk on January 26, 1992, would have spared this illogical entity in our Constitution when an appropriate moment came.

Art 370, which became history yesterday, has a notorious history. It was introduced into the draft Constitution on October 17, 1949, by Gopalaswami Ayyangar as Art 306A. He proposed that ‘Kashmir state’ would have special powers to be excluded from the purview of the laws that Parliament of India would make and also would have the powers to make its own laws.

‘Why this discrimination?’ yelled Maulana Hasrat Mohani, the member from the United Provinces. Ayyangar gave an unconvincing reply that there existed special circumstances in the state and hence the special provisions. He was challenged by members like Mohani on the grounds that why were different accessions being treated differently. Ayyangar’s logic was bizarre. The Instrument of Accession’s relevance was limited to joining the Dominion, he argued, adding, what mattered for Indian Republic that was going to take shape on January 26, 1950, were the decisions in the Constituent Assembly. He was clever in making this distinction between the Dominion and the Republic, but not logical.

Five months before the introduction of Art 306A, on May 27, 1949, another important discussion happened on the question of nominating members to the Constituent Assembly from J&K. The rules said that of the four nominations, two may be made by the ruler and two from the provincial legislature that was in existence before the accession. The rule was scrupulously followed in the case of all the princely states, whereas in the case of J&K, Nehru insisted that the Jammu Kashmir Praja Sabha, the state legislature under Maharaja Hari Singh, shouldn’t be authorised to nominate the members. Praja Sabha elections in 1946 were a fraud, insisted Nehru, and hence wanted the Maharaja to nominate all the four members through consultations with the National Conference leader Sheikh Abdullah.

Sheikh Abdullah’s party had boycotted the 1946 Praja Sabha elections, refusing to accept Maharaja’s authority. While the rest of the country was fighting the British with Quit India as the mantra, Sheikh Abdullah had launched the Quit Kashmir agitation against the Maharaja. It was in him that Nehru had reposed his trust and got four members nominated. Sheikh Abdullah himself, together with Mirza Afzal Baig, Maulana Masoodi and Moti Ram Baigra, became members of the Constituent Assembly. It was this clique that had supported 306A when it came up for inclusion in the draft Constitution.

With such a notorious background, one can easily imagine how illogical it was to continue with such a discriminatory article. In order to further strengthen Art 370 came another article, Art 35A—it too found its way into the Constitution in 1954 in an unconstitutional and surreptitious manner by bypassing procedure for amending the Constitution as stipulated in Art 368. Art 35A was inserted not through parliamentary assent, which is mandatory for amendments, but through a Presidential proclamation.

All this was happening under Nehru, whom the apologists never tire of projecting as a quintessential democrat. Credit goes to Ambedkar for inserting Art 370 in the section entitled Part XXI of the Constitution of India. which itself is titled “Temporary, Transient and Special Powers”.

The Opposition’s argument that Art 370 was a link to state’s accession are fallacious. J&K’s accession had concluded on October 26, 1947, when Maharaja Hari Singh signed on the Instrument of Accession. Art 370, in Ayyangar’s words, took birth as a temporary provision because of the ‘special circumstances’ in the state. The criticism of the Congress party is even more specious because it was they who had affected at least 44 amendments to this article in almost as many years.

This article had remained as an anachronism in our polity providing irrationally special powers to one state, which were being thoroughly misused by the regional leaders and parties. If 370 had benefited anybody in all these years, it was only the political leadership in the state. While people had suffered with lack of development, progress and prosperity, the leaders enjoyed lack of accountability and enriched themselves. The last major industry to come into the J&K was in mid-1950s.

On the other hand, this article had become an instrument in the hands of the separatist and anti-national forces to propagate a lie that the J&K was special and perpetuate sentiments of separatism in the Valley. Putting an end to this article was the much-needed measure for complete emotional integration of the people of J&K in the Indian Union.

The decision to bifurcate the state is also a strategically shrewd move. It will insulate Ladakh from the happenings in the other two regions and provide for greater development of the region. The situation emerging in the western neighbourhood and the possible reascendancy of the Taliban in Afghanistan calls for greater attention and care to be taken in what will remain as J&K after bifurcation. Making it an UT with a Legislature makes a lot of strategic sense.

“You say Yes, when others say No; You do what others will not; You blaze trails; You always step up to a challenge; You make it happen; You raise the bar on what is possible; You are strong and powerful; You are a Leader”. That is the kind of leadership we see in Narendra Modi and Amit Shah.

(The author is National General Secretary, BJP)

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