A.G. Noorani - Article 370: A Constitutional History of Jammu and Kashmir

ARTICLE 370

The book reveals the blueprint of the Constitutional machinations that form the legal basis of what the Indian union has been doing vis--vis the state of J&K. And Noorani has an uncomplicated position here: there is strictly no constitutional basis.

Biblio

Noorani is a veteran constitutional lawyer and writer. His aim is to show the hollow reality of the special status of the state of Jammu and Kashmir his method is to trace the steps by which Article 370 was eroded to the point where only the shell was left.

Economic and Political Weekly

A Constitutional History of Jammu and Kashmir

A.G. Noorani

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ePub ISBN-13: 978-0-19-908855-3
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Dedicated to the memory of Mridula Sarabhai
who gave her all for Kashmir and
received little recognition from the ones she had helped

This collection of documents on Article 370 of the Constitution of India, which contains temporary provisions with respect to the State of Jammu and Kashmir, provides documents on the five-month long negotiations which preceded its enactment on 17 October 1949; explains the significance of the article; describes how it was eroded, and traces the Constitutional evolution of the State and its relationship with the Union of India thereafter. It covers the period from 1946 to 2010.

The Third Group set up by the Prime Minister Dr Manmohan Singh, as a result of the three Round Table Conferences on Kashmir was devoted to this aspect. Justice Saghir Ahmad, a retired judge of the Supreme Court, drew up a report of this group. It is no more than a resume of various viewpoints expressed in the Conference by the political parties. All political parties in Kashmir are agreed on the restoration of the States autonomy.

This, of course, requires qualification. The BJPs predecessor the Bhartiya Jan Sanghs founder, Shyama Prasad Mookerjee, endorsed Article 370 when he was a member of the Union Cabinet. If he had considered it disruptive of national unity, he would have resigned from the Cabinet. In a letter of 4 February 1953 Sheikh Abdullah tellingly reminded Mookerjee This arrangement (Art. 370) has not been arrived at now but as early as 1949 when you happened to be a part of the Government (Integrate Kashmir: MookerjeeNehru & Abdullah Correspondence, Publicity Department, Bhartiya Jan Sangh, p. 37).

It is hoped that this collection of pertinent documents will assist in resolving the impasse on Article 370 and in providing a solution to the wider Kashmir problem. A draft of a revised Article 370, embodying proper safeguards, is included to assist in the discussions.

I would like to record my gratitude to Mr Iqbal Ganai, Secretary, Legislative Assembly of the State of Jammu and Kashmir for furnishing me with copies of the two volumes of the Official Record of the States Constituent Assembly and the Record of the Legislative of the Assembly debates on the Autonomy Report in 2000.

I am particularly grateful to four Kashmiri friends for their invaluable assistance in this work. They are Mr Saifuddin Soz, former Union Minister, Mr Abdul Rahim Rather, Finance Minister in the Government of Jammu and Kashmir and the moving spirit behind the States Autonomy Committee, Mr Naeem Akhtar, Chief Spokesman of Jammu & Kashmir Peoples Democratic Party and Mr Iftikhar Gilani, Special Correspondent of the Tehelka group. Responsibility for the selection of documents is entirely mine.

Last but not least, I would like to thank my friends Mr Manzar Khan, Managing Director of Oxford University Press for his constant encouragement in the project and the interest he took throughout and Mr Shashank Sinha, Senior Commissioning Manager of Oxford University Press for his enormous pains and editorial skills.

May 2011 A.G. Noorani

Article 370 of the Constitution of India relating to the State of and Kashmir is now sixty years old. The Constitution came into force on 26 January 1950 and with it, this unique provision. All other provisions were debated in the Constituent Assembly of India after deliberations in its Drafting Committee and, sometimes, discussions in the Congress Parliamentary Party.

Article 370 was discussed for five months by the Prime Minister of India, Jawaharlal Nehru and his colleagues with the Prime Minister of Jammu and Kashmir, Sheikh Mohammad Abdullah, and his colleagues; from May to October 1949 (). The State of Jammu and Kashmir is the only State in the Union of India which negotiated the terms of its membership with the Union. The Constituent Assembly merely put the imprimatur of its approval, on 17 October 1949, to a draft agreed between the Union and the State. Article 370 records a solemn compact. Neither side can amend or abrogate it unilaterally, except in accordance with the terms of that provision.

The Union Home Minister P. Chidambaram acknowledged in the Rajya Sabha on 6 August 2010 that Jammu and Kashmir had acceded to India in unique circumstances (Indian Express, 7 August 2010). He added that the State poses a unique problem which requires a unique solution. It is not very evident, however, that the dimensions of the uniqueness and its implications are fully realized. It is one thing to say that it is important to win the hearts and minds of the people of Jammu and Kashmir. It is another to admit precisely what led to the grim situation which called for this resolve and to define realistically the measures which will accomplish the objective which the Minister mentioned.

A little over a decade after the enactment of Article 370, its co-architect, Prime Minister Nehru, declared in the Lok Sabha on 27 November 1963 that Article 370

has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close. There is no doubt that Kashmir is fully integrated We feel that this process of gradual erosion of article 370 is going on. Some fresh steps are being taken and in the next month or two they will be completed. We should allow it to go on. We do not want to take the initiative in this matter and completely put an end to Article 370 ().