Constitutional Games

By M.J. Aslam

Many people think that Article 370 guaranteed special status of JK within the Union of India. This is also avowed position of the Indian Judiciary that it has taken on Article 370 since decades , though recently on 16-12-2016 the SC of India in State Bank of India v. Santosh Gupta held that JK State does not have any special status or sovereignty outside the Indian constitution. It said JK’s special status or so called sovereignty is subservient to the sovereignty of India. That apart, the fact stands that Article 370 by continuous extension and application of Central Laws and provisions of the Constitution of India by Indian Government in collaboration with State governments of the time , mostly stooges during the period of 1953-1975, has rendered this Article to an empty shell.

What was then this Article all about? I am not going to refer to the provisions of this Article to show that accession was conditional and powers of Indian Parliament to legislate for JK was limited to certain specified items that were mentioned in the instrument of accession , and that all those provisions of the Constitution that did not apply to JK initially but have been applied vide a plethora of Presidential orders starting from 1954 till date passed by the President in exercise of his powers under the Article itself in consultation or concurrence with the state Governments. I am looking at the issue from a different perspective. At the time when this Article was incorporated in the Constitution of India, Indian State that had itself taken the matter to UN in January 1948 was feeling the heat of the members of the UN that were pressing hard for holding Plebiscite in JK. So, from that angle, among others to be mentioned in the following lines, Article 370 was a conduit pipe that was incorporated in the Indian Constitution at the behest of Sheikh Abdullah who with his close associates , Afzal Beigh, Mawlana Masoodi & MR Bagda was camping in Delhi for few months to see it was incorporated therein to set up constitutional link between herself and JK . India used or misused this provision to justify MHS ‘s accession as well as to ‘show and strengthen its constitutional control’ over the disputed territory .

To refresh our minds, JK issue was taken to UN by Nehru himself in Jan 1948 and after long discussions and deliberations, UN GA adopted some Resolutions for holding plebiscite in JK under UN auspices. India agreed to those resolutions. Why ? Because, at that time, India was under tremendous pressure from UN to hold Referendum as it had only Military Control over the territory. As the Indian Constitution was not applicable to JK unlike that of other States of India at the time of its commencement, a Constitutional Link for a “constitutional democracy” was essential to hold the territory. So, insertion of Article 370 came as ready help to India to hold the territory and argue its control from legal and constitutional side. The fact is that the Article was placed in the Constitution as a makeshift arrangement between the State and India to run the daily affairs of governance etc. Till referendum was held , it had to be the Constitution and once Referendum were held , either the whole Constitution would apply to the State if results were in India’ s favour or if the results were against India , this “temporary link” would automatically go off. But that was never to happen, as India procrastinated the resolution and broke its promises made to the people of the state and the world body.

So, Article 370 stayed on the Constitution because of procrastination and non fulfillment of the promises and non implementation of the UN Resolutions, of course, through the courtsy of Delhi-Inducted CMs from 1953-1975 and then, there onward. Indian argument here is that it was temporary till State was fully merged with Union of India and once purpose was fulfilled, it had not to stay on the statute. What was that purpose ? Further discussion will clear the query,

As already stated, a plethora of laws was smuggled under the garb of this Article into JK from from time to time through a line of CMs who worked as loyal servants of India till reducing this Article to an otiose.

Article 1 of the United Nations INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS provides that “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. India is a signatory to this covenant. So, ordinarily JK people should have been given right of self determination as clearly envisaged under this Article 1. But India has come out with the theory that right of self determination could be exercised “externally” as under UN auspices or “internally” by participating in elections for governance to pursue economic, social and cultural development of the people. They contend that the participation in elections is done under the Constitution of India read with Representatives of Peoples Act and so, the people of JK by participating in Indian Held Elections showed that they had voted for India, confided trust and loyalty to it. That is, they claim, internal exercise of Plebiscite. It again clearly proves the point that Article 370 provided the basis for all these ‘cosmetic’ arguments of India because India had never been serious about implementation of UN Resolutions on JK obviously for an apprehension that the majority might have voted against it which is till now “justified fear” based on survey-results conducted by media and other teams in JK. There is a huge argument that is enough to lacerate the Indian claim . It is UN resolutions of 1957 on elections held/to be held in JK under the Indian constitution and action of ratification of accession with India by JK Constituent Assembly that loud and clear declare that the same (election or ratification by CA) will never be a substitute for UN referendum on JK.

After transporting all central laws ( GST Act being the latest in the list) and constitutional provisions into the State through local governments reducing the State’s so called “Autonomy” to cipher , making it a toothless tiger or an empty shell without fire to stop Intrusion in State’s so called Autonomy , now Right Wing Organisations talk of its abrogation. What a tragedy ? Was Article 370 then a “constitutional game” that was played by Indian constitutional players with the people of JK. Not all, majority community who have unparalleled sacrifices for this basic human right of self determination which is pith and substance of any democratic set up . It is manifestly clear, thus, that JK leaders who represented JK at the relevant time have failed miserably to anticipate the result of their actions. They were not skilled enough to gauge which way their misadventures with the delicacies of constitutional matters and political promises of Indian rulers were going to drive away the people of this ill-fated community ( JK Muslims/Kashmirs) into a place unknown and unheard of.

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