Can Article 370 Giving Special Status to J&K be Removed?
A major political party in our country, from time to time, raises the issue of abrogation of the Article 370 in the Indian Constitution, which bestows a special autonomous status on Jammu & Kashmir within the Indian Union. The Article gives protection to the special terms and conditions under which Maharaja Hari Singh, King of J & K acceded iti India in 1947.
Background :
Article 370 of the Indian Constitution became operative from November 17, 1952. The need for this Article arose because of the extra ordinary circumstances in which J&K acceded to the then Dominion of India on October 26, 1947 which offer was accepted on October 27,1947 by the then Governor-General of India, Lord Mountbatten but with a remark which was to prove very damaging to India in the future.
When Britain decided to grant Independence to its colony India on August 15, 1947, much before this date the cry for formation of Pakistan gathered renewed momentum. It was to be carved out of the then India and would be formed on the basis of religion ie Islam and would be a home for the Muslims of the sub continent. It was decided that Pakistan would consist of the territories of present Pakistan and East Pakistan now known as Bangladesh after liberation. The British gave the right to rulers of various kingdoms they had earlier on annexed to form British India, to either join India or Pakistan subject to some guidelines being met like the State should have a contagious land border with the proposed territories of Pakistan or if this is not so then they should have a sea port under their control. The decision of the king was to be final.
By August 15, 1947 all the rulers except three had decided to join either India or Pakistan. The three odd rulers were the Nawab of Junagadh in Gujarat, the Nizam of Hyderabad and the Maharaja of J & K. The first two were Muslim ruler but Hindu majority and the last was a Hindu ruler but Muslim majority kingdoms. After Independence, both Hyderabad and Junagadh rulers wanted to join Pakistan but could not do so because of revolt by their Hindu population and due to poloice action by Govt. of India. The nawab of Junagadh fled to Pakistan and Nizam agreed to join India. This left only J&K still undecided whom to join. In a surprise move the Maharaja decided to remain independent and desire both India and Pakistan to guarantee its neutrality.
However Pakistan decided to annex it by force and launched at first covert and later on its regular troops entered J&K and started fighting with the ill armed State troops. The State defenses started crumbling and Pakistan troops reached Baramula capturing large parts of the State. The Maharaja panicked and requested India to come to its help. India said unless you accede to India we cannot help you. The Maharaja under threat of losing whole State to Pakistani forces agreed to accede to India and signed the Instrument of Accession with certain conditions which made the accession conditional and not like other accessions which were unconditional in nature. The Instrument gave the India right to make laws only in the areas of Defence, Foreign Affairs, Communications and for all other matters the concurrence of the State Government was essential. In essence it meant that although J&K had acceded ro India except in three areas no other law passed by India would be automatically applicable in J & K unless the State Government gave its approval. This was a unique arrangement and made J&K a special status State within the Indian Union.
The Indian troops came to the rescue of the Maharaja and pushed back theinvading Pakistani troops to the present Line oof Control or the Cease Fire Line. Why orders to cease fire were given to the Indian Army when it was successfully pushing back the Pakistani troops and recovering lost territory has never been explained satisfactorily till date.
Problem :
AS stated above the Governor-General Lord Mountbatten accepted the Instrument of Accession but with the remark that 'it is my government's wish that as soon as law and order have been restored in Jammu and Kashmir and her soil cleared of the invaders the question of the state's accession should be settled by a reference to the people'. Subsequently govt of India also offered to conduct a plebiscite or referendum to settle the issue.
A militarily defeated Pakistan saw an opportunity in these remarks and immediately raised the issue that the legality of J&K's accession is not established. Ever since it is a bone of contention between India and Pakistan. India had taken the aggression in J&K by Pakistan as a complaint to the UN where a resolution got passed suggesting ways to hold a plebiscite in J&K further compounding the problem.
After Effects ;
Pakistan tried to capture J&K by force in 1965 but got defeated. In 1971 it lost east Pakistan and Bangladesh was born with support of India. A frustrated Pakistan recognised that it may not be possible militarily to capture Kashmir, so it resorted to training and supporting terrorist activities in Kashmir with a view to bleed India and create hostile opinion against India in Kashmiris. To a reasonable extent it has succeeded in its twin mission. Today in the Kashmir Valley there are separatist groups and leaders calling the shots and they keep reminding India that a plebiscite should be held. As they are Muslims they are openly propagating that J&K should join Islamic Pakistan. Thousands of common Kashmiris have lost their lives and large number of security personnel are fighting Pak trained terrorists coming across the Indo-Pak border everyday. Kashmiris in the Valley are a harrassed lot although economically so much damage is not done due to money flowing from Center.
Solutions:
The obvious solution could be to hold a plebiscite.However there is a UN resolutions tipulsted condition which states that both India and Pakistan shall vacate J&K territories held by them. J&K shall be governed by UN administrators fora period of five years . Only then will a plebiscite be conducted. For obvious reasons this is not agreeable to both India and Pakistan.
The next possible solution is to recognise the existing actual Line of Control as international border by both India and Pakistan which seems to be a way out. But Pakistanis not too keen on this solution.
The third is to go all out and have a fight to finish. Who ever wins gets to keep Kashmir as a trophy. At present no takers.
However there is a school of thought in India which feels that it is Article 370 which is the cause of trouble in Kashmir. This gives the Kashmiris an opportunity to consider themselves as not truly Indians. Thus its removal from the constitution shall fully integrate it with India and finish its special status. They expect Kashmiris to reject the call of separatists and the problem will be resolved once for all.
Repercussions:
Removal of Article 370 will remove the Constitutional protection to the terms under which J&K had acceded to India in 1947. It will be seen as a breach of sovereign agreement between two independent countries.(Dominion India and the Kingdom of J&K in 1947). It is legally possible that J&K will claim that as Article 370 is removed therefore it is no longer a part of India as the Instrument of Accession is also simultaneously null and void. It is possible that some hostile countries may grant it recognition also.
Conclusion :
The removal of Article 370 becomes an issue before every election. It also becomes an emotional issue with a large number of voters who are not knowledgeable about its repercussions both for India and J&K. I have personally heard a senior opposition leader tell a group of us that Article 370 cannot be removed and yet it is raised again and again. Yes it could be removed by negotiating with Kashmiris and having their concurrence. The history since 1947 till date shows it is going to be next to impossible to achieve it. So Article 370 may have to continue because a foreign Governor-General gave an assurance on part of India to hold a referendum while his Indian counterparts simply could not understand what he was doing.
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