Do not tinker with Article 370

During the first decade of this century, I was actively involved in trying to find a solution to the Kashmir problem. The entire exercise was the joint effort of a few friends including senior counsel Shanti Bhushan, former ambassador Vinod Grover, and the reputable editor M.J. Akbar, now a spokesman for the BJP. Our group became known as the Kashmir Committee, which I formally chaired. We had long parleys with diverse elements belonging to the political canvas of the state of Jammu and Kashmir, prominent among whom was the Hurriyat Conference. I must make it clear however, that even though the extremist Professor Syed Ali Shah Gilani did not participate, he presented no active hindrance either. Our success was the forging of a very constructive agreement consisting of the following five points:

1. Terrorism and violence are taboo.

2. A lasting and honourable peaceful resolution must and can be found.

3. The resolution must be acceptable to all political elements and regions of the state.

4. Extremist positions held by all for the last five decades have to be and will be abandoned.

5. Kashmiri Pandits will be rehabilitated with honour and rights of equality.

This agreement was no secret. I had published it in The Asian Age in 2002 with full concurrence of the Hurriyat leaders. They were also present when I reported the Kashmir Committee's work at a press conference at my Delhi residence. After the UPA came to office, our effort lost some momentum, for obvious reasons, and some of our colleagues have parted company. However, with new comrades, the excellent work of the Kashmir Committee has continued, though without publicity or headlines.

The fourth point, that "Extremist positions held by all for the last five decades have to be and will be abandoned", is the one, which is relevant to the core topic of this piece. On the one side, the extremist position is the demand for secession (either by establishing total independence or by becoming a part of Pakistan) and on the other side, it is abrogation of Article 370 of the Constitution, that would terminate Kashmir's special status compared to other states in the 1st Schedule of our Constitution. This demand for repeal of Article 370 has been repeatedly voiced by the BJP.

The Kashmir Committee has explained that this demand must be abandoned as it serves no significant Indian interest, and causes unnecessary suspicion and irritation to many in Kashmir. Besides, it is not an unreasonable price to pay for eliminating the influence of secessionists and liquidating their plans. But most importantly, it is this Article that gives a constitutional finality to the entire region of Jammu and Kashmir being an integral part of India.

Let me also clearly state that the repeal of Article 370 is not possible by any constitutional method. It can only be done by a constitutional coup, which even our Supreme Court will declare ultra vires and void.

Article 370 provides for its own repeal not by legislation by Parliament of India, but by Presidential action under Clause 3 of the Article, which reads as under:

"(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

"Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification."

No such recommendation has been obtained and none is feasible now or in the foreseeable future.

The history of Kashmir's accession to India, and the political and emotional ferment that preceded and accompanied it, is distinct and not comparable with other states. The Constituent Assembly of Jammu and Kashmir was brought into existence in September 1951 by an order issued by Yuvraj Karan Singh, then head of state of Jammu and Kashmir, son of erstwhile ruler Maharaja Hari Singh. However, it must be noted that the idea of convening a Constituent Assembly was conceived even before Partition of India was contemplated, and would have been implemented, but for the invasion of the state in October 1947 by tribesmen from Pakistan territory, a few months after partition. When in 1948, the National Conference formed the interim government in the state, it was expressly declared that, as soon as normal conditions are restored, steps would be taken to convene a National Assembly based upon adult franchise, to frame a Constitution for the state. The convening of the Constituent Assembly in 1951, a very significant event politically, was a natural outcome of the desire of the people of the state to have a democratic government elected by the people and responsible to the legislature. The Constituent Assembly was invested with authority to frame the Constitution for the state of Jammu and Kashmir. It started its work on 5 November 1951 at Srinagar, inaugurated with a historic speech by Sheikh Mohammed Abdullah, Prime Minister of the state.

The Constituent Assembly completed its work after about six years, and the Constitution of Jammu and Kashmir came into force on 26 January 1957. For the first time in its history, the state of Jammu and Kashmir assumed a constitutional status, its Constitution representing the supreme will of the people. Thus, no repeal or even amendment of this disputed Article is possible. The Article is the result of a freely negotiated contract between the people and constitutional authority of the state of Jammu and Kashmir, and the people and constitutional authority of India. It is thus a basic feature of the constitutional scheme that has evolved for the future governance of the state, and is beyond any power of modification or repeal within the Kesavananda Bharati doctrine evolved by our own Supreme Court, that anything which conflicts with or seeks to alter this basic structure of the Constitution, is ultra vires. The amending power of Parliament under Article 368 cannot reach it.

We cannot compel our President to exercise a power which does not rest in him. We will only earn the bad reputation of being constitutional terrorists without any significant gain or compensation. Even on the express words of the proviso to clause 3 quoted above, such a power is completely negatived.

Now let me briefly demonstrate that Jammu and Kashmir cannot be compared with other states. The Constituent Assembly of India created a Constitution for the sovereign Central government that also included every acceding princely state. But, as I have explained, because of specific historical events and tribal attacks that occurred during and prior to the accession process, Jammu and Kashmir is the only princely state in India that had a separate Constituent Assembly of its own to frame its Constitution.

Secondly, after the Independence Act was passed by British Parliament, India was left with 565 sovereign independent states ruled by autocratic kings and princes, after British paramountcy over them lapsed. It was the singular achievement of the great indomitable Sardar Patel that he brought about not merely limited accession of the princely states to India, but a complete merger of them into India, leaving no executive or legislative power in the hands of the erstwhile rulers. Hyderabad and Kashmir were the only two exceptions, and mastery over the former pays further tribute to the genius of the Sardar.

Kashmir acceded to the Union of India under an instrument which gave us limited legislative and executive power over three matters i.e., foreign relations, defence and communications. Even in these matters previous consultation with the state government was a condition precedent. For any other matter, we required full concurrence and not merely consultation. Above all, this state had a Muslim majority, and the active ambition of Pakistan to grab control was a major handicap, compounded by the inexperienced Pandit Nehru who invoked UN intervention and entered into a ceasefire with Pakistan without clearing half of the state of raiders and Pakistan military intruders.

India is fortunate that the state of Pakistan does not appear today to be a very attractive destination for anyone to give up a comparatively prosperous, democratic and secular Bharat, a land of equal opportunity and total freedom of religious belief and practice.

Postscript

On a personal note, let me congratulate Amit Shah on the happy news of his son's engagement. And on a political note, my congratulations to him for being appointed the president of the BJP. He is an organisational genius, and has been singularly responsible for the phenomenal and unprecedented clean sweep in UP, giving great strength to the new government and Prime Minister. Of course, the Congress, with its disgraced leadership, is bereft of any worthwhile communication with the public. All it can do is interfere in the internal matters of the BJP, and resort to repetitious false accusations that have failed not only the test of repetition, but also the test of the courts.

The people of India should be informed that Amit Shah was granted bail by the Gujarat High Court, in 2010 finding that there was no evidence at all against him. The Congress controlled CBI went in appeal to the Supreme Court, which upheld the bail on the same grounds. The Congress should realise that their Goebbelsian days are over, and their credibility in the nation has sunk below the pits.