Abrogation of Article 370

  • The Indian Supreme Court has already let Article 370 to be watered down


5 August 2019 is a day that will ever live in infamy, as BJP carried out its sinister manifesto, pledged years ago: revocation of Article 370 of the Indian Constitution, and that too by a presidential decree, in one fell swoop. It was long in the pipeline. The divided opposition made a protest, expressing their deepest concern, but all fell on deaf ears of Modi Sarkar. The Congress leader and Leader of Opposition in the Rajya Sabha Ghulam Nabi Azad, himself from Kashmir, termed it murder of the Constitution. Former Finance Minister P Chidambaram called it “a catastrophic step”, vociferously asserting that it will ultimately turn out to be the cornerstone for the dismemberment of India.

Hindutva and the dream of Akhund Baharat lie at the heart of the manifesto of the saffron-clad BJP, the ruling party. Hindutva is an ideology which is diametrically opposed to India’s secularism.

Modi swept into power for the second time, holding aloft the flag of Hindutva. The Indian people rejected the Congress party’s avowed secularism. It goes without saying that Gandhi’s non-violent and secular ideology is at loggerheads with the BJP’s extremist ideology.

India has rooted out Article 370 lock, stock and barrel: Article 35-A (prohibiting Indian citizens from acquiring land or being employed in Kashmir), the instrument of Accession whereby the Hindu Maharaja acceded to India, and the Constitution of Jammu and Kashmir. The state has been sliced into two union territories; J&K with a legislative assembly and Ladakh, without one, extending the operation of all the provisions of the Indian Constitution to them.

They say coming events cast their shadows. The J&K Legislature was dissolved in 2018. President’s Rule was in place. Tens of thousands of troops were deployed. Kashmiri leaders were arrested en masse, including those who had been loyal to India. The state was under curfew. The internet was shut down. Landlines were cut off. Tourists were bused out. Rumours were going around that Article 370 was going to be undone. Indeed, there was method in India’s madness.

The story of Kashmir is a catalogue of deception, persistent fraud on the Indian Constitution, monstrous barbarities inflicted upon Kashmiris, of the local elite’s greed, gross human rights violations and tyrannical subjugation of its people.

We fought wars with India over Kashmir, but this time around, our Prime Minister could not find enough courage as to even verbally threaten India of dire consequences, for he ruled out the option of war

Maharaja Hari Singh, the ruler of Jammu and Kashmir, signed an Instrument of Accession on 26 October 1947, acceding to India in respect of three subjects: foreign affairs, defence, and communication. In plain words, J&K was intended to be a confederation. However, the Instrument excluded from its scope the acceptance of “any future constitution of India” without prior negotiations with the Government of India.

Lord Mountbatten, the Governor-General of India, accepted the Accession on 27 October 1947. In a letter of the Maharaja, he hinted at holding a plebiscite:

“… the question of Accession should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people”.

The Government of India published a White Paper on Jammu & Kashmir in February, 1948, reiterating Lord Mountbatten’s words: “In accepting the accession, the Government of India made it clear that they would regard it as purely provisional until such time as the will of the people of the State could be ascertained”.

Curiously enough, barring Jammu & Kashmir, every princely state accepted the Indian Constitution. It was only Jammu and Kashmir that expressed its intention to have a separate Constitution drafted by its own Constituent Assembly.

It took The Prime Ministers of India, Jawaharlal Nehru, and of J&K, Sheikh Mohammad Abdullah from May to October 1949 to hammer out Article 370. 47 presidential orders slowly and gradually eroded the provision, emptying it of its core contents, thereby reducing it to a farce. Article 370 became a tunnel through which a lot of traffic had passed. With the dissolution of the Constituent Assembly on 26 January, 1957, no amendment, much less an abrogation, of Article 370 could be carried out. However, it was thoroughly mutilated under the garb of 47 presidential orders.

Article 368 carved out an exception in relation to abrogation or amendment in Article 370. Its proviso unequivocally laid down prior concurrence of the State’s government and ratification by its Constituent Assembly, before the President, would issue such a notification.

The jurisprudence surrounding Article 370 is as controversial as its history. The first seminal judgment, reported as AIR 1959 SC 749 (Prem Nath Kaul V State of J&K) was given unanimously by a five-member bench. It held that no amendment could be made in Article 370 without ratification by the Constituent Assembly. This judgment was referred to and followed by a two-member Bench in State Bank of India V Santos Gupta and Another etc (2016).

However, there are two Indian SC judgments, which ruled to the contrary. Firstly, AIR 1970 SC 1118 (Sampat Prakash V The State of J&K) wherein Mr Justice Bhargava gave the President carte blanche to make orders, thereby driving a coach and horses through Article 370. Secondly, AIR 1972 SC 963 (Mohammad Maqbool Damnoo V The State of J&K). Oddly enough, in both, the 1959 judgment was not referred to, thereby rendering them per incuriam in the eyes of law. Notwithstanding these judgments, we should not pin too much hope on the Indian Supreme Court, which had approved the rampant killings of Kashmiris under the draconian Indian Army Special Forces Act, 1958, in a string of judgments.

Beyond the usual diplomatic repertoire and rhetoric of “deeply concerned” and “internal matter”, the world’s conscience, if it has one, has not been shocked out of its deep slumber. Beyond speeches in the Parliament, we should take some concrete actions. These are desperate times needing desperate measures. Time is fast rolling on. We should not sit on our hands, letting the grass grow under our feet. We fought wars with India over Kashmir, but this time around, our Prime Minister could not find enough courage as to even verbally threaten India of dire consequences, for he ruled out the option of war.