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Remember Article 370

Kashmiris should put their heads together and agree on a joint draft of a final Presidential order under Article 370 which guarantees autonomy, writes AG Noorani.

india Updated: Dec 03, 2007 23:18 IST

When, on November 15, Mirwaiz Umar Farooq announced his acceptance of Kashmir’s “pre-1953 status plus”, he was signifying acceptance of autonomy within the Indian Constitution, which the state had before Sheikh Abdullah’s arrest in 1953. The ‘plus’ implied Pakistan’s agreement to it. It was disingenuous of him to say, on November 17, that “no solution within the framework of the Indian Constitution is acceptable.” Abdul Ghani Butt, a colleague, amplified that this “could be a first step” towards President Pervez Musharraf’s four-point proposal. It envisages self-governance, demilitarisation, open borders and joint management. It rules out de-accession of Jammu & Kashmir. Both points are for India and Pakistan to settle, bearing in mind the wishes of the Kashmiris. In 2002, Umar Farooq offered “some process through which people can elect their representatives and we are ready to assert our representative character…we are ready to prove it.” He should do so in the 2008 Assembly elections. India should settle J&K’s autonomy with the assembly’s representatives. Meanwhile, Kashmiris should put their heads together and agree on a joint draft of a final Presidential order under Article 370 which guarantees autonomy.

Clause (3) of Article 370 says “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”. Its marginal note describes Article 370 as “temporary provisions” with respect to J&K. When Article 370 was adopted by the Constituent Assembly on October 17, 1949, N.H.Gopalaswamy Ayyanger explained that India was then committed to a plebiscite.

Article 370 embodies a compact negotiated for five months from May 15, 1949, between the national leaders and the state’s leaders. It contained guarantees against unilateral change by New Delhi. But as far back as on November 27, 1963, Prime Minister Jawaharlal Nehru told the Lok Sabha, “It [Article370] has been eroded, if I may use the word” as if it were something eroded by the elements over time. It was calculatedly wrecked. He added, “We feel that this process of gradual erosion of article 370 is going on…we should allow it to go on.” Sheikh Abdullah was in prison then. Union Home Minister G.L. Nanda used a more meaningful metaphor on December 4, 1964. Article 370 can be used as “a tunnel in the wall” to increase the Centre’s powers. Article 370 was “the wall”. The “tunnel” was a provision enabling extension of central power with the concurrence of the state government but subject to its ratification by the state’s Constituent Assembly. It was abused to amass Central power, even after that body had dispersed, after adopting the state’s constitution on November 17, 1956. There was, now, no prospect of any ratification.

The concurrence was given by state governments installed in office through rigged polls. This process has gone on for decades. All orders under Article 370 since November 17, 1956, increasing the Centre’s powers or extending more federal institutions, are patently void, perhaps since August 9, 1953, when Sheikh Abdullah was unconstitutionally removed as J&K’s premier.

A new final order under Article 370 would delete the word “temporary”, repeal orders made in violation of that compact, and drop the obsolete references to the state’s Constituent Assembly in the revised and permanent Article 370. It should provide stringent guarantees against its “erosion”. It would no longer be amendable by an executive order but only by the normal legislature process — a two–thirds vote by the state’s Assembly, preferably one elected after Parliament’s vote.

Kashmiris can constructively contribute to this and to two other points. One is open borders; i.e. “just a line on a map”. Concretely, what does it spell? Will a teacher in Srinagar be allowed to teach in a school in Muzaffarabad? Will the old permit system be reinstalled so that a poor villager would be able to visit his kin freely access the LoC? Free exchange of person, goods and literature? Seminars, meetings, concerts and mushairas in which the people of the state can participate, irrespective of the LoC? Babus can be trusted to make things difficult. Kashmiris can insist that the state’s de jure partition must be coupled with its de facto re-unification and provide a scheme that both governments can accept.

The other is the elected head of state which J&K’s Constituent Assembly endorsed on June 12, 1952. The Delhi agreement mauled it in July 1952 to make the election subject to New Delhi’s veto and the elected head of state removable at is will. The 6th Amendment to J&K’s Constitution (1965) substituted this joke with another — a governor appointed by New Delhi. On July 23, 1975, an order under Article 370 barred, unconstitutionally, the state Assembly from legislating on the matter. The best course to empower the Assembly is to elect a panel of three from whom the President would accept one as the Sadar-e-Riyasat. He should be removable only by impeachment. Like Article 370, the Delhi agreement is also a wreck.

A “tunnel” can be entered from either end. An able memo submitted by the National Conference on November 6, 1995, to Prime Minister P.V. Narasimha Rao shows that Article 370 “is not, and cannot, just be a one-way stream”. It can be used to restore the powers robbed since 1953.

On August 5, 2000, Hizbul Mujahideen (HM) chief Syed Salahuddin said he was prepared to drop “the UN resolutions” for something else — “or the tripartite talks between India, Pakistan and Kashmiris”. On September 11, he was “even ready to contest elections if they are monitored by the international community”. Once a ceasefire is in place, the HM will become a political party. Syed Ali Shah Geelani admitted on June 16, 1998, “we are not in a position to stop the use or misuse of the gun. There is no rapport between the APHC and gunmen.”

An exceptionally informed writer, Engineer S.A. Rashid, questions the APHC’s capability to deliver at all. In an article on November 15, 2007, in Chattan, a respected Urdu weekly in Srinagar, he reminds the Hurriyat that its importance has stemmed only from popular support to the militancy. If the militants disown the APHC, it will be nowhere.

It is unwise to spurn Salahuddin’s overtures for a ceasefire. India should proceed apace with the peace process with Pakistan to which Kashmiris must contribute sound ideas. As for the polls, an election is meaningful only as part of an on-going political process with full opportunities to hold meetings and rallies and to march in processions. No election can at all be said to be fair if civil liberties are denied and there is no mass-based political process as in the rest of India. Such polls are a sham.