August 5, 2019, is a day that would forever live in infamy. It was when BJP carried out its sinister manifesto, which it had pledged years ago: revocation of Article 370 of the Indian constitution and, that too, by a presidential decree in one fell swoop.
It was long in the pipeline.
The divided opposition made a protest; expressing their deepest concern. But all fell on deaf ears of the Modi Sarkar. Congress leader, Ghulam Nabi Azad, who hails from the J&K, termed it murder of the Constitution.
P Chidambaram called it “a catastrophic step,” wondering aloud whether it would not be laying down the foundation for the disintegration of India.
Hindutva and the dream of Akhund Baharat lay at the heart of the manifesto of saffron-clad BJP, the ruling party.
Hindutva is an ideology, as opposed to India’s secularism.
Modi swept into power for the second time, holding aloft the flag of Hindutva. The Indian people rejected the Congress party’s avowed secularism. It goes without saying that Gandhi’s non-violent and secular ideology is at loggerheads with the BJP’s extremist ideology.
India has rooted out Article 370 lock, stock and barrel: Article 35-A (prohibiting Indian citizens from acquiring land or being employed in Kashmir), the instrument of Accession whereby the Hindu Maharaja acceded to India and the Constitution of Jammu and Kashmir. The state has been sliced into two union territories: J&K with a legislative assembly and Ladakh, without one; extending the operation of all the provisions of the Indian Constitution to them.
They say that coming events cast their shadows beforehand. J & K Legislature was dissolved in 2018. Governor Raj was in place. Tens of thousands of troops were deployed. Kashmiri leaders were arrested en masse, including the ones, who had been loyal to India. The curfew was in place. The internet was shut down. The landline was cut off. Tourists were bused out. Rumours were going around the valley that Article 370 was going to be undone. Indeed, there was a method in India’s madness.
The story of Kashmir is a catalogue of deception; of persistent fraud on the Indian Constitution; of Indian oppression and monstrous barbarities inflicted upon Kashmiris; of greed on the part of the ruling elite of Kashmir; of gross human rights violations and tyrannical subjugation of its people.
Maharaja Hari Singh, the ruler of J & K, signed the Instrument of Accession of the State of J & K on October 26, 1947, acceding to India in the respect of three subjects: foreign affairs, defence and communication. In plain words, J & K was intended to be a confederation.
However, the Instrument excluded from its scope, the acceptance of “any future constitution of India” without prior negotiations with the Government of India. Needless to mention, the Government of India Act, 1935, the provisional constitution of India and Pakistan, allowed the princely states to accede to India or Pakistan through execution of Instrument of Accession.
Lord Mountbatten, the Governor-general of India wrote the letter of acceptance of Accession on October 27, 1947, to Maharaja. He hinted at holding a plebiscite in so many words:
“… the question of Accession should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.”
Government of India published a White Paper on Jammu & Kashmir in February 1948; reiterating Lord Mountbatten’s words: “In accepting the accession, the Government of India made it clear that they would regard it as purely provisional until such time as the will of the people of the State could be ascertained.”
Curiously enough, barring Jammu & Kashmir, every princely state accepted the Indian Constitution. It was only Jammu and Kashmir to express its intention to have a separate Constitution drafted by its own Constituent Assembly.
It took PM India Jawaharlal Nehru, and PM J&K Sheikh Mohammad Abdullah five months from May to October 1949 to hammer out and put the finishing touches on Article 370.
Gandhi’s non-violent and secular ideology is at loggerheads with the BJP’s extremist ideology
47 presidential orders slowly and gradually eroded the provision, emptying its core contents, and, thereby, reducing it to a farce. Article 370 became a proverbial tunnel through which a lot of traffic had passed. Needless to emphasise, with the dissolution of the Constituent Assembly on January 26, 1957, no amendment, much less an abrogation of the whole article 370, could be carried out under the strict constitutional scheme envisaged therein. However, that was not to be. It was thoroughly mutilated under the garb of 47 Presidential orders.
Article 368 carved out an exception concerning abrogation or amendment in Article 370. Its proviso unequivocally laid down prior concurrence of the state’s government and ratification by its constituent Assembly, before the president would issue such a notification.
Sheikh Muhammad Abdullah was thrown behind the bars on the orders of Nehru. His government was dismissed. He languished in jail until he struck a Faustian bargain with Indira Gandhi; only to be defrauded again. India just repeated the history on a larger scale this time around.
The jurisprudence surrounding Article 370 is as controversial as its history is. In this regard, the first seminal judgment in the case reported as AIR 1959 SC 749 (Prem Nath Kaul vs State of J & K) was handed down unanimously by a five-member bench. It was authored by Justice Gajendragadkar, holding no amendment could be made in Article 370 without the ratification body of Constituent Assembly. This judgment was referred to and followed by a two-member bench in a case reported as State Bank of India vs Santos Gupta and Anr etc. (2016). It was authored by Justice R F Nariman.
However, two Indian SC judgments ruled to the contrary.
Firstly, AIR 1970 SC 1118 (Sampat Prakash vs the State of Jammu and Kashmir) wherein, Justice Bhargava put a complete misconstruction on Article 370, giving the president carte blanche to make orders, thereby, driving a coach and horses through Article 370.
Second is in AIR 1972 SC 963 (Mohammad Maqbool Damnoo vs the State of J & K). Oddly enough, in both these cases, the foregoing judgment of 1959 was not referred to, thereby, rendering them per incuriam in the eyes of law. Notwithstanding these judgments, we should not pin too much hope on the SC. It was Indian SC, which had approved of the rampant killings of Kashmiris under the draconian Indian Army Special Forces Act, 1958, in a string of judgments.
Beyond the usual diplomatic rhetoric of “deeply concerned” and “internal matter,” the world’s conscience, if it has one, has not been shocked out of its deep slumber.
Paradoxically, it has been the consistent stand of India for the last 47 years following the Simla Accord, 1972 that Kashmir is a bilateral dispute to be resolved by both India and Pakistan, without the intervention of the third party. This stand was reiterated only days ago when Trump offered twice to mediate between the two countries for the resolution of the Kashmir issue. India repudiated its stance and policy by a stroke of the pen. Two crucial question crops up, one, has India thought over it, before taking the crucial step, for incorporating J & K into Indian territory? Two, has India not internationalised the issue by its folly, taking the things back to 1947? This would definitely furnish a basis to Islamabad to bring the issue back to the UN.
The writer is a practising lawyer and a columnist based in Lahore