Articles 370 and 35A have bled this country profusely both literally and metaphorically.

What is required is the repeal of Article 370 and 35A and fuller integration of Jammu and Kashmir with the rest of India

As per Barbara Tuchman, American historian and author of ‘The March of Folly’, “The disasters of history are the results of the government’s folly and perverse persistence in pursuing the policies contrary to national interests.”

And Barbara Tuchman’s said thesis gets confirmed when we see that successive Indian governments’ have retained Articles 370 and 35A in the Constitution though these Articles compromise India’s sovereignty, and have been nurturing separatism, subversion and terrorism for several decades.

like all other princely states which had joined India, Jammu and Kashmir too became the irrevocable part of India because of Instrument of Accession signed by its ruler.

It is deplorable that Kashmir, the crown and the soul of India since times immemorial, the land of Maharishi Kashyap, Lalitaditya, Kota Rani, Abhinavagupta and Kalhan; and an important centre of Hindu heritage has been facing turmoil frequently all because of Articles 370 and 35A.

Article 370 was inserted only as a ‘temporary provision’ in the Constitution in 1950. And its offshoot Article 35A was inserted on May 14, 1954, by the Constitution (Application to Jammu and Kashmir) Order, 1954 by the Presidential Notification issued under Clause (1) of Article 370, (and without any legislation) in Appendix 1.

This write-up explains the history and vicious implications of Articles 370 and 35A, and how to remove these Articles easily by issuing the Presidential Notification under clause (3) of Article 370 which does not require any voting in Parliament or any Constitutional amendment, whatsoever.

Insertion of Article 370

Before discussing their implications, let us understand how these Articles got inserted in the Indian Constitution.

As per the Indian Independence Act, 1947 passed by the British Parliament, the then British India was partitioned into India and Pakistan in 1947, and the rulers of Princely States were given the option to join either India or Pakistan (by signing the Instrument of Accession which was to be final and irrevocable) or to remain independent.

Rulers of over 560 Princely States opted to join India and signed the Instrument of Accession. However, Maharaja Hari Singh Ji, the then Ruler of Jammu and Kashmir, chose to remain independent. But overwhelmed by the sudden attack on Kashmir by Pakistani Forces in October 1947, he signed the Instrument of Accession on October 26, 1947, which was accepted by India on October 27, 1947.

Thus, like all other princely states which had joined India, Jammu and Kashmir too became the irrevocable part of India because of Instrument of Accession signed by its ruler.

After Jammu and Kashmir ruler signed the Instrument of Accession, Pakistan’s attack on Kashmir was repulsed by the Indian army. But while the Indian army was on its way to get the Pakistan-occupied areas of Kashmir vacated, the then Prime Minister Shri Jawahar Lal Nehru ordered the ceasefire; and took the matter to United Nations. Moreover, despite the misgivings of Constituent Assembly, he got Article 370, the so-called ‘temporary provision’, inserted in the Constitution-ignoring the havoc it was sure to bring.

Even the Governor of Jammu and Kashmir, if he is not a citizen of Jammu and Kashmir, has no right to vote in Jammu and Kashmir.

Insertion of Article 35A

Article 35A was inserted by the Constitution (Application to Jammu and Kashmir) Order, 1954 dated May 14, 1954, by a Presidential Notification issued under Article 370. This Notification was added as Appendix 1 to the Constitution of India.

The above-mentioned Constitution (Application to Jammu and Kashmir) Order, 1954 is a lengthy document. It describes many exceptions and modifications with which the Constitution of India applies to the State of Jammu and Kashmir. Section 35A is only one of such exceptions and modifications.

Article 35A empowers Jammu and Kashmir legislature to define ‘permanent residents’ of the state. Only permanent residents are eligible for special rights and privileges.

Because of Article 35A, only ‘Permanent Residents’ of the State have the right to vote for Jammu and Kashmir assembly, right to acquire immovable property in Jammu and Kashmir, right to settle in Jammu and Kashmir, right to employment under the State government and right to scholarship and right to receive aid from State government.

Separate Constitution, separate Flag and dual citizenship

Articles 370 and 35A have created vicious problems some of which are as follows:

While the Instrument of Accession signed by its ruler Maharaja Hari Singh Ji on October 26, 1947, irrevocably links Jammu and Kashmir with the rest of India, these Articles weaken this link.

Though Preamble of Indian Constitution guarantees to all Indian citizens “Justice”, “Liberty”, “Equality”, and “Fraternity”, Articles 370 and 35A violate every such guarantee.

The root of all problems in Kashmir is the presence of these Articles in the Constitution of India. These Articles have nurtured communalism, separatism, subversion and terrorism in Kashmir; and are also responsible for driving out lakhs of Hindus from Kashmir.

Articles 370 and 35A are discriminatory provisions which give special rights to Indian citizens of Jammu and Kashmir but discriminate against Indian citizens of rest of India. Besides, Indian Citizens of Jammu and Kashmir can acquire property and settle in the rest of India but Indian citizens of the rest of India cannot acquire property and settle in Jammu and Kashmir.

These provisions violate the concepts of secularism and nationalism.

These Articles deprive Indian citizens in the rest of India of their Fundamental Rights stipulated in Article 14 (right to equality) and Article 19 (right to freedom).

Because of Article 370, Jammu and Kashmir have its separate constitution and its separate flag. In Jammu and Kashmir, national flag must be hoisted with the state flag.

Indian citizens in Jammu and Kashmir have dual citizenship: one of India and the other of Jammu and Kashmir. But citizens of the rest of India cannot be citizens of Jammu and Kashmir.

Even the Governor of Jammu and Kashmir, if he is not a citizen of Jammu and Kashmir, has no right to vote in Jammu and Kashmir.

Because of these provisions, even the President or Prime Minister of India, if he is not a permanent resident of Jammu and Kashmir, cannot purchase any immovable property in Jammu and Kashmir. Moreover, though any person from Jammu and Kashmir can settle anywhere else in India, no person from rest of the country can settle in Jammu and Kashmir.

Moreover, these Articles curtail Indian Parliament’s sovereign powers over Jammu and Kashmir in many matters.

Deletion of these Articles would mean one nation, one citizenship, one flag and one constitution for entire India including Jammu and Kashmir for which patriots like Dr. Shyama Prasad Mukherji lived and died

The only solution

Articles 370 and 35A have bled this country profusely both literally and metaphorically.

Drastic situations demand drastic solutions. No independent nation can compromise its sovereignty.

The injury India is suffering in Jammu and Kashmir is self-inflicted since though Article 370 inserted in the Constitution in 1950 begins with the words, “Temporary provisions with respect to the State of Jammu and Kashmir”, it is being retained even in 2019.

But the problem in Kashmir cannot be solved by politics of appeasement or by the Prime Minister’s special aid package of Rupees 80,000 crores sanctioned in 2015 for Jammu and Kashmir. This problem can be solved only by treating Jammu and Kashmir State like the other States of India.

What is required is the repeal of Articles 370 and 35A and fuller integration of Jammu and Kashmir with the rest of India in keeping with the unanimous February 22, 1994 Resolution of Indian Parliament which reiterates Jammu & Kashmir to be an integral part of India, and demands vacation of Pakistan-occupied Kashmir.

How to repeal these Articles?

Article 370 can be repealed easily by the Presidential Notification under clause (3) of Article 370. And the said Notification can be issued on the basis of the Government Resolution, also known as Cabinet Resolution, and does not require any voting in Parliament or any Constitutional amendment, whatsoever.

It is relevant to reproduce here Clause (3) of Article 370 as follows:

“370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Article 370(1) in The Constitution Of India 1949

(2) Article 370(2) in The Constitution Of India 1949

(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.”

It is relevant to note that proviso to Clause (3) of Article 370 requiring the recommendation of the Constituent Assembly of Jammu and Kashmir before the issue of Presidential Notification has become redundant and unnecessary because, on January 25, 1957, the Constituent Assembly of Jammu and Kashmir had been dissolved. Since no such Constituent Assembly exists now, restriction mentioned in Clause (3) cannot operate.

Along with the abolition of Article 370, the above-described Constitution (Application to Jammu and Kashmir) Order, 1954 dated May 14, 1954, which also contains Article 35A, and which was issued by a Presidential Notification under Article 370 should also be abolished by the Presidential Notification under Clause (3) of article 370.

What must BJP do?

Articles 370 and 35A are monumental symbols of national ineptitude and slavery of fake secularism.

After getting power in 2014, BJP has done nothing to fulfil its perpetual promises regarding “justice to all and appeasement of none”, Uniform Civil Code, the abolition of Article 370, rehabilitation of Kashmiri Hindus in Kashmir, same rights and same laws for all Indian citizens irrespective of their religion etc. etc.

Even in the remaining few weeks of its tenure, BJP government can regain its credibility by honouring at least one of its core promises by immediately abolishing the patently unjust, perverse, discriminatory and self-destructive Articles 370 and 35A.

Deletion of these Articles would mean one nation, one citizenship, one flag and one constitution for entire India including Jammu and Kashmir for which patriots like Dr. Shyama Prasad Mukherji lived and died.

And this deletion would start liberation of India from the slavery of pseudo-secularism.

I conclude this piece with the Sanskrit adage “Tatha Astu.” (Let it be so).

Note:

1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.