Debate on Plebiscite in Kashmir and Art.370 Indian Constitution on J&K
Recently the MOS in the PM's office, declared that consultations on the present usefulness of art 370 is being started soon as promised by Mr. Modi in his pre- election speech at Udhampur which is now represented by the MOS as an MP. This raised a strong reaction of the present ruling class of the state. Omar Abdullah went to the extent of challenging the accession of the state if the art. 370 is amended or abrogated which the BJP has listed on its election manifesto.The letter of the then Governor General of India ,Lord Mountbatten while accepting the instrument of accession of J&K state to the dominion of India among other things lays down ' As soon as law and order has been restored in the state of Jammu&Kashmir and the invader is completely repulsed ,the the views of the local population will be final.' This condition has been completely negated by the state rulers by declaring the Indian-held J&K as the entire state by polity of Kashmir valley for grabbing of power with notional seats in the assembly for the unfilled seats for the territories held by Pakistan,the invader. Pakistan continues to occupy the areas it had grabbed in 1947, annexed the Gilgit and Skardu areas renaming these as it's Northen Territories being directly administered by the central Govt. China has constructed the Korakaram highway in our territory . The commitment to any acceptance of Plebiscite by India ,in these changed conditions becomes null and void. UN Security Council decision 42-c which laid down vacating of the invader also becomes unworkable and is ,therefore,void. Only an act of war may change the present territorial occupation of each nuclear power otherwise it is to stay as a fait-accompali. Politicians from all sides will continue playing games on 'Plebiscite' whenever and wherever it suits them. So this word will continue holding primacy in political lexicon. The present generation of Kashmiri politicians understandably are bound to carry on with this charade to play to the gallery and vested interests ,both within and outside the state & across the country's borders. But it will only be a replay of political adventurism with shifting stands according to expediency at that instant of time. The instrument of accession signed by the Maharaja and Governor General of India is absolute and final as the former was the 'absolute ' ruler of the state. The commitment of 'Plebiscite ' was only an intent from Nehru and since the prevailing conditions now after more than more than six decades are completely changed and shall remain so ,the intent /demand thereof is not workable any more.some theorists say that most of the states have signed another instrument of merger which J &K has not and therefore the accession is not permanent. They forget that these states were reorganised by combining many states into groups by merging with each other and later into Union of States and then merger to the Indian union for maintaining linguistic or cultural identities. No such reorganisation of J&K was needed and as such no merger was required.The instrument of accession was the only legal requirement as per India act 1935 and Indian independence act 1947. If the same principle is to be adopted for J &K it would lead to trifurcation of the state on linguistic and cultural basis, As an extension of same principle those leaders who are in the vanguard trumpeting the demand of plebiscite and autonomy ready for this as it might lead to further divisions. Are they ready to accept such a contingency thereby losing their primacy?The crisis created by imminent fall of Srinagar in late 1947 to the Pakistani forces and tribal fighters associated with it,prompted the maharaja of J&K to seek the accession of state to India . Nehru, (who had confined kashmir affairs only to himself as P.M. and stonewalled any and all opposition to Abdullah's demand for granting special state status to J&K which was conceded and later incorporated in the constitution of India as article 370. There was only one word 'temporary' prefixed by encouragement from Sardar Patel who was piloting the bill in the parliament in Nehru's absence.What is Art.370? An explanation in non-legal parlance!1. It is incorporated as a statute in the constitution of India as 'Temporary' but there is no limitation of time attached. 2.The GOI's authority on the state will extend only to foreign affairs ,defence,communication ,and any concurrent list as enshrined in the instrument of accession.3.the state of Jammu and Kashmir will be governed under a separate state constitution,penal code,and accounts . The Indian laws shall have no jurisdiction on J&K unless agreed to by the constituent assembly ( and now the successor legislature.)
4. Any amendments in this statute including its repeal shall have to be sponsored / agreed to by the constituent assembly before any any action can be taken by the govt of India . Nehru put the passage of art.370 in the parliament as a matter of personal honour and requested Patel to get it through . There was a lot of opposition in the congress on this special status. The author of the the Indian constitution Dr. Ambedkar refused to even draft this article when Abdullah personally addressed him at the behest of Nehru .He was so agitated that he wrote to him'. You wish India should protect your border,she should build roads in your area.she should supply your food grains and Kashmir should get equal station with India .But Govt.of India should have limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal would be a treacherous thing against the interest of India and I, as the law minister of India will never do it ' How factual has this statement been as made out by the events till date. A constituent assembly was elected in to prepare and approve a separate constitution for the state which was prepared and passed in an unanimous resolution . The J&K. constitution stipulates at the outset that J&K 'is an integral part of Union of India'. (People are not generally aware of the fact that Sheikh Abdullah in early Oct.1947 had already tried negotiations on accession to Pakistan on his terms but Jinnah would accept only unconditional accession.) Abdullah bulldozed Nehru to accept these conditions against the advice of his colleagues in the cabinet and the party. Abdullah was as such not acceding to India due to any secular idealism as he had already triedPakistan first.The ruling national conference was in brute majority in that constituent assembly and party to further dilution of art.370 by various duly elected Govts. Governing in democracy is not the private prairie of an individual or a region. No Indian govt of any political formulation will ever accept reversing the clock back to pre 1953 conditions which will create a tidal bore of agitatations and frenzied violence throughout India. The valley polity cannot have the cake and eat it without any recrimination .Most of the clauses in the art.370. have since been modified under due administrative procedure as laid down by mutual acquiescence of the central and the state governments. To reverse this action would require the accord of the Indian parliament as laid down in Art.370.The main controversial issue now is the J&K citizenship rights act which was in its original form passed in during the reign of Maharaja Pratap Singh. It was a safeguard from any large migrations into the state with scanty resources of its own and saving the environment. After 1947 it acquired a confrontational tone in the valley due to its political clout in the state. Certain changes have been made in the act which has a communal slant:1. Re settlement of those people and their descendants who were permanent residents of the state in 1947 and had fled(migrated) to Pakistan up to 1954 can resettle in J&K and their state subject rights will be open.this option is not open to the Pandits whose population has dwindled from 1947 going in search of livelihood to other parts worldwide and the mass migration due to forced exodus in 1990s. While as there is no dispute about about the state citizenship of the generation who fled in 1990s, the succeeding generations by and by lose their domicile rights as most of them do not own any immovable assets in the state any more and are no longer domiciled in the state .The prime movers of power in the state have not paid even lip service to this issue while they moved fast for the migrants to Pakistan .2. Any female who marries a non resident of the state loses her citizenship. This condition affected the Jammu Hindus and Pandits more than any body else .The matter is now sub -judice . The intent of the state rulers is apparent. The reason for retaining the J&K citizenship act may be subjected to debate but the primacy of the the meagre land mass for habitations in the state needs to be understood to protect its unstable environment to avoid encroachment into its forests and drainage basins.In conclusion, it has to be understood that there are three primary regions which have different political agendas . Time is ripe for restructuring the state and limit the application of Art.370 to the valley only after a centrally administered area in the valley is earmarked for resettling the Pandits . It is time G.O.I. acts to rectify unwelcome events overtaking the measures which are laundered as policy.
