Easy solution of Kashmir problem – J.G.Arora

By  J.G. Arora

–Author is a commentator on national issues.

His e-mail address is:    jgarora@gmail.com

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

As per Barbara Tuchman, American historian and author of ‘The March of Folly’, “the disasters of history are the result of the government’s folly and perverse persistence in pursuing the policies contrary to national interests.” And successive Indian governments’ policy to retain Article 370 in the Constitution confirms Barbara Tuchman’s thesis.

Though Article 370 has all along been encouraging separatism and terrorism, successive Indian governments have retained this provision though it was inserted only as a ‘temporary provision’ in the Constitution in 1950, and though, as discussed hereinafter, it can be repealed very easily by issuing the Presidential Notification under Clause (3) of Article 370 as per the Government / Cabinet Resolution which does not require any voting in Parliament or any Constitutional amendment, whatsoever.

This write-up explains the history and vicious implications of Article 370, and how to delete it by the Presidential Notification under Clause (3) of Article 370.

History of Article 370

Before discussing its implications, let us understand how this Article got inserted in 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, 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 duly 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 Jawahar Lal Nehru surprisingly ordered the ceasefire. Besides, he also unnecessarily took the Jammu and Kashmir matter to the United Nations. Moreover, despite the misgivings of Constituent Assembly, Jawahar Lal Nehru got Article 370, the so-called ‘temporary provision’, inserted in the Constitution ignoring the havoc it was sure to bring.

Implications of Article 370: Separate Constitution, separate Flag and dual citizenship

Article 370 has created vicious problems some of which are as follows:

While the Instrument of Accession signed by its ruler Maharaja Hari singh on October 26, 1947 irrevocably links Jammu and Kashmir with the rest of India, Article 370 very much weakens that link.

The root of all problems in Kashmir is the presence of Article 370 in the Constitution of India. Article 370 has bred communalism, separatism, subversion and terrorism in Kashmir; and is also responsible for driving out lakhs of Hindus from Kashmir.

Article 370 which gives special status to Jammu and Kashmir just because it is a Muslim-majority state goes against the concepts of secularism and nationalism. Article 370 sends the negative message that in secular India, a Muslim-majority State deserves special treatment.

Because of Article 370, Jammu and Kashmir has 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. Citizens of Jammu and Kashmir are also citizens of India 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.

Though Jammu and Kashmir is an integral part of India, even the President or Prime Minister of India cannot purchase any land 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 because of Article 370.

Because of Article 370, many of the Central laws are not applicable in Jammu and Kashmir. Article 370 curtails Indian Parliament’s sovereign powers over Jammu and Kashmir in many matters.

Besides, those Hindus and Sikhs who during India’s partition in 1947 were uprooted from adjoining Pakistan and took refuge in Jammu and Kashmir have not been given citizenship so far; and thus, have been denied their basic rights because of Article 370. 

The only solution

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 2017. Thus, this Article has been made a permanent disability for the nation, generating the politics of appeasement and surrender.

But the problem in Kashmir cannot be solved by politics of appeasement, and by the Prime Minister’s special aid package of Rupees 80,000 crores sanctioned for Jammu and Kashmir, and by the preferential treatment of Jammu and Kashmir by successive Central governments. This problem can be solved only by eliminating its root cause i.e. Article 370; and by treating Jammu and Kashmir like other States of India.

What Kashmir requires is not discussion with the separatists but abrogation of Article 370; 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.

Abrogation of article 370 will bring Jammu & Kashmir at par with other States; will solve the Kashmir problem, and will also help the rehabilitation of Kashmiri Hindus in Kashmir.

Abrogation of Article 370 would mean one constitution and one flag for entire India including Jammu and Kashmir for which patriots like Dr. Shyama Prasad Mukherji lived and died.

Procedure for repealing Article 370

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

(2) …. .

(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 the 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 itself, the Constituent Assembly of Jammu and Kashmir had been dissolved; and is no more in existence since January 25, 1957.

Thus, it is clear that Article 370 can be repealed by a Presidential Notification under Clause (3) of article 370.

Accordingly, all nationalist individuals and organisations must assert themselves and request the BJP-led Central government to issue the necessary Presidential Notification under Clause (3) of Article 370 in order to abrogate Article 370. 

It may also be mentioned here that BJP’s Election Manifesto issued before Parliamentary elections in 2014 had stated that “BJP remains committed to the abrogation of Article 370”.

Immediate repeal of Article 370 by issuing the Notification as per Clause (3) of Article 370 is the only way, the surest way and the easiest way to solve the Kashmir problem, and to ensure the complete integration of Jammu & Kashmir with the rest of India.

And it is in utmost national interest that it is done immediately.