What a mess. It bears noting that authors of our constitution intended Article 370 as a bandage which should be ripped off once the wounds heal but ofcourse the Kashmiri leadership interprets it differently. Another mistake was going to UN. We did great things with our constitution and for that time it was a monumental achievement which help bind our nation together but some mistakes continue to haunt us. It is Article 370 which has kept the Kashmir issue frozen in time.
Legally there are ways around it, they might not uphold the spirit but if Supreme Court acquiesces constitutional amendment can pushed through Parliament. However the current electoral dynamics will not allow it.
Three legacy issues Article 370, Uniform Civil Court and Reservations are holding India back.
I am aware I sound a like a RSS spokesperson now but please don't let it undermine the need for reform.
P.S. I have no burning ardour but concern which is on the verge of turning into apathy.
P.P.S Israel is not a role model for India that is if we don't want India to be threatened existentially. Keeping in mind our substantial minority population, an Israel like approach would leave nothing but ashes.
Let us look just at Article 370. There are serious misunderstandings on account of this article in the Indian Constitution.
- 26th October 1947.
- The historical background: Maharaja Hari Singh's accession document and his covering letter form the legal basis for Kashmir to be considered part of India.
- The accession document is a document copied from one earlier provided within the scope of the similar provision for accession within the Government of India Act 1935.
- The provisional constitution for the Union of India or the Dominion of India from 15 August 1947 to 26 January 1950 was the Government of India Act 1935.
- The covering letter was, and is an integral part of the accession of Kashmir to India.
- The Maharaja's accession to India, and consequent surrender of his sovereignty over Jammu & Kashmir, was restricted to three items only, defence, foreign affairs and communications.
- He made it clear that he would progressively deal with the other aspects of administration. At no point did either he or the Kashmir administration give away their sovereignty to India wholesale.
Three documents are of importance here: the Document of Accession, the Maharaja's covering letter, and the reply to this letter by the Governor General, Lord Mountbatten.
If it is desired, these can be copied into the record for ready reference. Otherwise we can move on with the rest of the argument.
To continue:
After the exchange of letters, and against the backdrop of military action being taken by the Indian Army, the Maharaja issued an Emergency Administration Order on 30th October 1947, appointing Sheikh Mohammed Abdullah as the Head of the Administration; on the 5th March 1948, he issued a Proclamation appointing a Popular Interim Government, and the Proclamation mentioned that a National Assembly should be called based on universal suffrage, and the Assembly should frame a Constitution for his people.
What did this mean?
It meant, clearly, that the J&K Constituent Assembly (the National Assembly mentioned above) would draft a Constitution for acceptance by the sovereign power, and that Constitution should contain a detailed description of the arrangements under which the State would be administered, forsaking Defence, Foreign Affairs and Communications, over which sovereignty had already passed to the Dominion of India.
Now, where does Article 370 fit into all this?
Article 370 is simply the mechanism by which the Indian Constituent Assembly, then busy framing the over-arching Indian Constitution, had in mind for shifting around subjects belonging to the Centre, subjects belonging to the State and subjects on the joint list. All other rulers, with this unique exception, had agreed to be assimilated and the shifting of subjects relating to all these other territories was governed - is governed - by Article 368.
That is all there is to it. Article 370 decides how subjects are to be transferred or whose responsibility should be shifted from the original administrator to a new one.
To continue with the narrative,
- The State of J&K had acceded to India in 1947 only in respect of Defence, Foreign Affairs and Communications.
- Negotiations were held on 15 May 1949 and 16 May 1949 at the Deputy Prime Minister's residence, on Kashmir's future set-up.
- Pandit Nehru and Sheikh Mohammed Abdullah were both present.
- The two major subjects of discussion were
- The framing of the Constitution for the State
- On this, Nehru wrote on 18 May that both Patel and he agreed that this was a matter for the State's Constituent Assembly
- The subjects in respect of which the State should accede to the Government of India
- Nehru's letter states,"....In regard to (ii) the Jammu and Kashmir now stands acceded to the Indian Union in respect of three subjects: namely, foreign affairs, defence and communications. It will be for the Constituent Assembly of the State when convened, to determine in respect of which other subjects the state may accede."
- Article 370, as noted above, governs and embodies this basic principle.