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The Row On Article 370

By Abdul Majid Zargar

17 July, 2013
Countercurrents.org

The latest row between L.K.Advani & Omar Abdullah over the abrogation of Article 370 is a case of left-over refrigated dish being reheated to be served afresh for a new feast-that is election 2014 through which the former aspires to become prime Minister while the latter, otherwise battling hard, to retain his chief Minsterial post. BJP Spokesman has even gone to the extent of saying that this article will be removed from the Indian Constitution once it comes to power.

Indian perfidy in Kashmir has been apparent & obvious since day one. Kashmir’s tallest leader Sheikh Mohd. Abdullah, having been taken in by Nehru’s charming slogans of socialism, Secularism & democracy, facilitated a temporary & conditional accession of Kashmir to India. A marathon discussion spanning over five months from May to October 1949 between Nehru and Abdullah gave birth to a scheme of special status for the State of J&K to be implemented through Article 370(originally numbered as 306 A) of Indian Constitution. To overcome the UN resolution on Kashmir, this article was prefixed with word “Temporary” to give an impression that its life was co-terminus with holding of a UN mandated plebiscite and hence temporary. The minutes of the constituent assembly proceedings are testimony to the fact that Patel & Shyam Prasad Mukerjee, both of whom were Minsters in Nehru’s Cabinet, were privy to this scheme of special status & Article 370 for the State of J&K. Advani & his cohorts who make much noise about Patel & Mukherjee’s opposition to article 370 should have a look at such minutes before befooling the gullible Indian Public.

But Nehru and New-Delhi soon exhibited its ugly Machiavellian face. The agreed draft article 370,before presenting it in Indian Constituent Assembly for approval, was altered unilaterally by Moulana Azad & Aiyengar without the Knowledge & consent of Abdullah & his colleagues representing J&K State in Indian Constituent assembly. Sheikh protested but to no avail. But for this amendment Sheikh’s arrest in 1953 would not have been possible. So in a sense Sheikh’s arrest was conceived ( or at least thought of) in 1949 itself. Alas-Abdullah did not understand Nehru’s game-plan and People of the State are paying dearly till date for his unfounded friendship & trust in Nehru. Even Shyam Prasad Mukherjee’s agitation in 1952 was part of this game plan. Otherwise how does one explain his affirmation to article 370 in 1949 and his subsequent rejection in 1952?

While Indian Army continued to strengthen its ground position in State, New-Delhi continued with its periodic ambushes on article 370 and over a period of time reduced it to a husk through political fraud and constitutional abuse. It used all dirty tricks –political, Bureaucratic and legal to reduce the status of our State inferior to that of other States. One illustration suffices to demonstrate that. While to extend president’s rule in Punjab originally imposed in 1987, Parliament had to amend the Constitution four times, by means of the 59th, 64th, 67th and 68th Constitution amendments, for the State of Jammu and Kashmir the same result was accomplished, from 1990 to 1996, by mere executive orders under Article 370.

Another instance illustrates the bureaucratic 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."

It would be of immense interest to know how the Supreme Court was also roped in to help the erosion of so-called special status. In all it has decided three cases on the scope & interpretation of article 370. In the first case i.e Prem Nath Kaul vs State of J&K, decided in 1959, a Constitution Bench consisting of five judges unanimously held that Article 370 (2) "shows that the Constitution-makers attached great importance to the final decision of the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provision of Article 370 (1) is made conditional on the final approval by the said Constituent Assembly in the said matters". In other words, the Court correctly put a full stop to the powers of Indian President & Parliament to apply any law, beyond the subjects of Defence, Foreign affairs & Communication as specified in instrument of accession, as Constituent assembly had already ceased to exist by then.

But, in 1968, in Sampat Prakash vs the State of J&K, another Bench ruled to the contrary without even referring to the above 1959 case. The court held that Article 370 can still be used to make orders there -under despite the fact that the State's Constituent Assembly had ceased to exist. It is unbelievable but true that Justice M. Hidayatullah sat on both Benches and ignored his own ruling in 1959 case. It was a display of “National interest” par excellence by the highest Court of the land.

In 1972, in Mohammed Maqbool Damnoo vs the State of J & K, another Bench held "the essential feature" of Article 370 (1) (b) and (d) is "the necessity of the concurrence of the State Government", not the Constituent Assembly. This bench also did not refer to the earlier judgment delivered in 1959. And we all know who constituted these State Governments?

And it needs no rocket science to understand that when it comes to Kashmir , even the judicial fairness & sanctity has been sacrificed at the altar of National interest.

The author is a practicing chartered Accountant. Feed back at abdulmajidzargar@gmail.com


 

 




 

 


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