Why we need to get rid of Article 370

Amrita Bhinder
Amrita BhinderJun 21, 2018 | 15:33

Why we need to get rid of Article 370

The Bharatiya Janata Party's (BJP) decision to pull out of an "untenable" alliance with the People's Democratic Party (PDP) in Jammu and Kashmir might have sent political commentators and psephologists in a tailspin but more importantly, it may have also ushered in a new phase of a constitutional debate.

Is continuing with Article 370 in J&K not a mistake?

For long now, there has been a concerted effort on both sides of the argument surrounding Article 370. While on the one hand, politicians such as Omar Abdullah, the former chief minister of J&K, believe that Article 370 is the only constitutional link between the state and rest of India, there are many from across all spectrums who insist that Article 370 has, in fact, prevented the state from truly becoming an integral part of India.


J&K has suffered at the hands of the political dispensation since the creation of India as we know it today.

Marcus Tullius Cicero had observed that any man can make mistakes, but only an idiot persists in his error.

Are we somewhere not continuing with a mistake because we spent a lot of time, resources and destinies of thousands of people making it? The imposition of Article 370, which according to legal experts as well as historians of significance, reeks more of a tedious machination on the part of two of the significant dramatis personal, namely, the first Prime Minister of India Jawaharlal Nehru and the charismatic Kashmiri leader Sheikh Mohammed Abdullah, than a constitutional provision that grants it special status.

Drafted in Part XXI of the Constitution under Temporary, Transitional and Special Provisions, Article 370, it is said, was proposed by Nehru but opposed by most within the government including BR Ambedkar, the architect of the Indian Constitution, who refused to draft it. Although Sardar Vallabhbhai Patel was against it, he nonetheless convinced both the Constituent Assembly as well as the Congress executive to agree to it once Nehru asked him to help.


If one were to look at the way the whole issue has played out vis-à-vis Article 370, there can be little doubt that we as people do not choose between things, rather we tend to make that choice between the descriptions of things.

India under Nehru was "intolerant" enough to jail Sheikh Abdullah for allegedly joining hands with Pakistan.

When asked by thinkers such as Maulana Hasrat Mohani, why Article 370 was inserted into the Constitution in the first place, the answer given by Gopalaswami Ayyangar, a close confidant of Pandit Nehru and a minister sans portfolio in the first Union Cabinet, was that unlike other princely states, perhaps Kashmir was not yet "ripe for this kind of integration".

Article 370 was supposed to stay in place till the conditions ceased to be abnormal (read the first India-Pakistan war in 1947). Similarly, one can also view Lord Mountbatten's suggestion to the ruler of Jammu and Kashmir, Maharaja Hari Singh when he executed the Instrument of Accession to India on October 26, 1947, that once peace returned to the state the people's wish would be ascertained (on the issue of accession) as a gratuitous wish and not a precondition for lawful accession.


Article 370 was supposed to be a temporary provision but it has gone on for far too long and the strife surrounding has now assumed a far more complex nature. It is also suggested that any objection to Article 370 is, in the manner of speaking, an opposition of the social fabric of the state or in other words, the state's Muslim dominated populace.

Yet people forget that Jammu and Kashmir is not a homogeneous entity; besides the Muslim majority Valley, Jammu is predominantly Hindu, Ladakh is a mix of Buddhist and Muslims and then there are the Gujjars and Bakarwals.

Some also believe that opposition to the powers of J&K is, for the want of a better term, 'BJP-driven', but jog your memory a little and the intricacies of the Kashmir Conspiracy Case where Sheikh Abdullah was arrested for conspiring against the state that included a call for a plebiscite, ie, to decide if the state should remain part of India, join Pakistan or become independent.

Many Indians perhaps might not be even aware that the Preamble to the Constitution of J&K which was adopted in November 1956 by the Constituent Assembly of Jammu and Kashmir, which was a body of representatives elected in 1951, clearly states that it is an integral part of the Union of India "in pursuance of the accession of this state to India which took place on the 26th day of October 1947".

Would it be too revisionist a thought to consider the abrogation or amendment of Article 370 by the very means it was instituted — a presidential order?

It's not uncomplicated considering that Clause 3 of Article 370 supports an executive order under which by public notification the Article shall cease to be operative but this can only follow a recommendation of the Constituent Assembly of the state; but what happens in the absence of such a body?

Why is India not taking legal recourse in dealing with Syed Ali Shah Geelani and the ilk?

Also, Article 368 of the Indian Constitution that states the procedure through which Parliament can amend by way of addition, variation or repeal of any provision of the Constitution in accordance with the procedure established (Clause 1) does not directly apply to J&K (Sampat Prakash vs state of Jammu and Kashmir, 1968). Amendment to the Indian Constitution (done under Article 368) will apply to J&K only if such amendment is extended to the state by a presidential order under Article 370.

Irrespective of where one stands on the debate, it's more than time to ask some important questions and, by extension, offer some real solutions that would forever do away with the chimera that has long persisted.

When Jammu and Kashmir is an integral part India, be it through the simple reading of the accession by Maharaja Hari Singh, or the Preamble of the Constitution of J&K formed by the Constituent Assembly, then why must we persist with a provision that causes much doubt among the domiciles of the state and gives impetus to separatist movements that are backed by the same country (Pakistan) that tried to forcibly take this region — the very reason why the accession happened in the first place?

When India under Nehru was "intolerant" enough to jail Sheikh Abdullah for allegedly joining hands with Pakistan for a call for 'Plebiscite Front' then how is it that today, nearly 72 years down, we still persist in keeping the strife alive by not taking legal recourse against separatist calls by leaders such as Syed Ali Shah Geelani and the ilk?

Every new day is an opportunity to undo the horrors of the past and for that maybe one might have let go of passion for as Abraham Lincoln suggested, passion helps us but it's reason — cold, calculating, unimpassioned reason — that must furnish all the materials for our future support and defence.

Last updated: June 21, 2018 | 15:33
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