Move beyond Article 370

Aug 20, 2013, 07:51 IST | Manoj Joshi

In his Independence Day address, Jammu and Kashmir Chief Minister Omar Abdullah lamented "We (Kashmiris) are treated differently like we are not part of the mainstream

In his Independence Day address, Jammu and Kashmir Chief Minister Omar Abdullah lamented “We (Kashmiris) are treated differently like we are not part of the mainstream.” Even while condemning the Kishtwar communal violence, he complained that the Bharatiya Janata Party and other politicians who attacked his government, had more or less ignored similar violence in Bihar. Citing figures of communal violence in Uttar Pradesh, Maharashtra, Madhya Pradesh, Karnataka, Rajasthan and Gujarat in the past year, he asked, “Tell me does anybody raise this issue in parliament? Did any big leader go to those places to express solidarity with the people there? How many newspaper columns were written about those incidents?”

Wise words: J&K CM Omar Abdullah delivering his I-Day speech at Bakshi Stadium in Srinagar on August 15. Pic/AFP

Abdullah has a point and double standards are being applied by the BJP on the issue. But, the irony is that Jammu & Kashmir (J&K) is indeed different from the other states of the Union. Not many Indians can easily swallow the fact that for most of the world community, the status of the entire state of J&K is disputed between India and Pakistan. In other words, they do not accept that J&K is a part of the Indian Union in the same way that, say, Maharashtra is. Galling as it may be, we will have to reach a point in our negotiations with Pakistan when the UN Security Council takes up the issue and pronounces on the status of the dispute which it first took up in January 1948 and has failed to resolve since.

Many Indians are not likely to know that the state has its own constitution and flag, the only state of the Union to have them. This constitution was written by an elected constituent assembly that worked between 1951 and 1956. After its ratification, it came into force on January 26, 1957. Part II, Article 3 declares, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.”

There is a lot of history and politics hidden here. Article 370 which is seen as a “temporary provision” came into force along with the Indian constitution on January 26, 1950. But the J&K constitution was only written thereafter.

The point is that Abdullah and the National Conference, which was the dominant political force in the Valley, made it clear that it was the special provisions enshrined in Article 370 which impelled them to throw their lot with India. New Delhi, also argued that the ratification of the state’s accession to India by an elected constituent assembly in 1954 had made the requirement for a plebiscite redundant. But two days before the new constitution came into force in January 26, 1957, the UN Security Council passed a resolution maintaining that the final disposition of the state could only be determined through a plebiscite.

Through the Simla Agreement of 1972, India and Pakistan have agreed to resolve the Kashmir dispute through bilateral dialogue. Over the years, seeing the failure of the UN Security Council, most of the countries of the world have agreed that the best way that the dispute can be settled is bilateral talks and most would agree that the best option is that the border should be drawn up along the present Line of Control, but they will not say this openly.

But that does not mean that the UN cannot step in. People who argue that we should stop dealing with Islamabad don’t realise that should bilateral negotiations appear to fail, the UN Security Council could well come back in to deal with the issue, as, indeed, it did in the period 1948-1956.

Article 370 has been seen as the constitutional link between India and J&K, and the one that signifies Kashmir’s “differentness”. Through this, it is specified that barring defence, foreign affairs, finance and communications, our parliament needs the state government’s consent for applying other laws.

Over the years, the state has, indeed, permitted many central laws to apply in Kashmir, but the fact of the matter is that the state’s citizens live under a different set of laws, set by their own constitution and have differing laws relating to property ownership and fundamental rights. The Beg-Parthasarthy Accord of 1974 has reiterated that “The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India”.

One of BJP’s core agenda points is to eliminate these differences. Unfortunately, this is not sought to be done through promoting peace and amity between communities, but removing what the party says are needless constitutional provisions (Article 370) of the constitution.

There is a technical issue relating to the abrogation of the clause which could be done only by the J&K Constituent Assembly, but that body no longer exists.

Others argue that it is possible to eliminate the article. But the issue is not really a legal one. True integration must be an emotional one, rather than based on the letter of the law. By this measure, it is not only in Kashmir that we have to do a lot more but even far flung areas of the North-east, including Assam.

Indians of all persuasions and ethnicities need to realise that making a nation is hard work, and most of us haven’t put much of that into the process. Chest thumping and sloganeering are no substitute to mature politics. 

The writer is a Distinguished Fellow at the Observer Research Foundation, New Delhi

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