Time to bury Article 370

Prime Minister Narendra Modi has called for public debate on Article 370 and not for it being struck down as such. A decision on this controversial issue should be taken through a democratic process.

We need to discuss the origin and history of Article 370. All the 555 Princely States in India and the seven in Pakistan joined their respective Dominion after Partition. They, word by word, signed the same Instrument of Accession drafted before Independence. Kashmir was the only state in which accession became conditional. The state’s accession was limited to only defence, foreign relations, communications and currency.

The rulers of Princely States were required to decide to which Dominion their state would accede. The Indian Independence Act of 1947 did not stipulate for the people of the state to have any say in the matter. Muhammad Ali Jinnah supported this. His hidden agenda was to acquire Hyderabad, the richest and the largest Princely State of the size of France, and some other Princely States with Muslim rulers, like Bhopal.

The Indian National Congress before Independence wanted the people of the state rather than the ruler to decide the future status of the state. Jinnah hoped Pakistan would get both Hyderabad and Kashmir, the former on legal grounds, and Kashmir, due to geographical compulsions, would fall like a ripe plum into his lap.

Maharaja Hari Singh had a Hobson’s choice. He realised that being a Hindu, he would have no future in Pakistan. He also realised that if he acceded to India, his future would be no different. He had detained Jawaharlal Nehru at the border, preventing him from entering the state to defend his friend, Sheikh Mohammed Abdullah, facing trial in a court of law.

He vacillated and toyed with the idea of becoming an independent ruler. Impatient at the delay in the maharaja taking a decision, Jinnah ordered an invasion of Kashmir on October 22, 1947, led by Maj. Gen. Akbar Khan of the Pakistan Army. The invading force comprised thousands of tribal Lashkars and Pakistan Army personnel in civvies.

Overcoming brave resistance of meagre state forces, the enemy reached Baramulla on October 25. Srinagar was now defenceless. Maharaja Hari Singh fled to Jammu. It was in these circumstances that the maharaja signed the Instrument of Accession, on the afternoon of October 26, 1947.

He was like a drowning man needing immediate succour and in no position to lay down conditions for his accession of the state. No other ruler had signed the Instrument of Accession when he was in such a desperate position. Yet in his letter to Lord Mountbatten he stated that his accession would be confined to defence, foreign affairs, communications and currency only.

He also stated that he would immediately hand over power to Sheikh Abdullah, his bitter opponent who had launched the Quit Kashmir movement against him. He knew that unless he did so Nehru would not accept his accession. As for making the accession conditional, he had no axe to grind.

During that critical period Sheikh Abdullah was staying with Nehru in Delhi. Possibly the Sheikh exploited his close friendship with a trusting, visionary and idealistic friend. Jawaharlal and the Congress had lost the war for secularism when undivided India was partitioned. Nehru now hoped to win the battle for secularism in Kashmir.

Sheikh Abdullah came out in his true colours in 1953 when he was found negotiating with the US ambassador in India to have an independent Kashmir. He had to be dismissed and held in detention for several years.

Dr B.R. Ambedkar, the principal drafter of our Constitution, refused to draft any special concessions for Kashmir without the latter fully reciprocating. He told Sheikh Abdullah, “I, as the law minister of India, will never do it.” Nehru then commissioned N. Gopalaswami Ayyangar to draft a special Article for Kashmir.

He said there were ongoing military operations in Kashmir and the issue had been referred to the United Nations and, hence, special provisions were necessary for Kashmir. Accordingly Ayyangar drafted Article 370 and persuaded Ambedkar and Sardar Patel not to raise any objection. Sheikh Abdullah took full advantage of Article 370 to impose various conditions.

Indians visiting Kashmir had to take a permit from their district magistrate. This was almost like getting a visa to go to a foreign country. The Indian national flag was not to be flown in Kashmir and no Indian could buy immovable property in Kashmir although Kashmiris could do so in the rest of India.

Even the 30,000 Hindu and Sikh refugees coming out of West Pakistan to Jammu area were not given full citizenship. They cannot vote in state elections, acquire immovable property or get government service in the state or their children admission in state government technical colleges.

These erstwhile refugees have now become over one lakh and they are still virtually stateless citizens. On the other hand, Tibetan Muslim refugees, who came to Srinagar in 1950 when China occupied Tibet, were given full-fledged Indian citizenship. After the martyrdom of Dr Syama Prasad Mookerjee in mysterious circumstances in 1953, the pernicious permit system was revoked and the Indian national flag allowed to fly in the state along with the state flag.

After Sheikh Abdullah was dismissed in 1953, his successor, Bakshi Ghulam Mohammad, agreed to several amendments to Article 370 following the prescribed procedure. The jurisdictions of the Supreme Court, the Election Commission and the Comptroller and Auditor General were extended to Kashmir. The Prime Minister of Kashmir was re-designated chief minister, as in other Indian states. The Sadr-e-Riyasat was also re-designated as governor to be appointed by the Central government.

Article 370 was a temporary measure included in our Constitution. It was something primarily concerning the people of Kashmir only. Today the secular brigade, through its policy of appeasement for vote-bank considerations, has made Article 370 a national issue of grave concern for all Indian Muslims.

Hitherto all discussion of the Kashmir problem has been focused both nationally and internationally on Kashmiri-speaking Muslims and ignoring other Muslims, Hindus, Buddhists and Sikhs. The separatists in the state are mostly Kashmiri-speaking Muslims. Very few non-Kashmiri-speaking Muslims have taken to terrorism or separatism. Gujjars, Bakharwals, Shia Muslims of Kargil and, of course, Hindus, Sikhs and Buddhists have nothing to do with these two maladies afflicting the state.

Kashmiri-speaking Muslims constitute about 45 per cent of the population of the state residing in only 10 per cent of the land space in Indian-administered Kashmir. State Assembly elections in Jammu and Kashmir are being held in November 2014. The BJP seems to have got some foothold even in the Valley.

If at any stage now or later the BJP attains its 44-plus target in the Assembly, Article 370 could be given a fitting burial by a suitable resolution passed by the state Assembly. This could happen in 2014-15 or after the next Assembly elections in the state, when the BJP has established its credentials in the Valley through good governance. That would be the best way of throwing Article 370 into the dustbin of history.

The writer, a retired lieutenant-general, was Vice-Chief of Army Staff and has served as Governor of Assam and Jammu and Kashmir

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