Recently, the Chief Minister of J&K Mehabuba Mufti in a national debate on the subject ‘Understanding Kashmir’ threatened that in case Article 370 of the Constitution giving special status and privileges to the State of J&K is withdrawn, her People’s Democratic Party and other political parties of J&K will not hold the Tri-color National Flag.
She said without special status given to the State under the Constitution, it would be difficult to stay with the Indian union. Mehabuba also stressed to act upon the lahore Declaration so that the people of the State would live peacefully. That apart, she also did not approve the policy of snapping the trade relationship with Pakistan. Mehabuba argued that on one side there is emphasis in different forums that the problems of J&K would be settled on the basis of Constitutional provision of Article-370, but on the other hand, there is double standards adopted like debate on withdrawal of the special status for the State. Pressure tactics is applied by the Centre as Armed Forces Special Power Act is still in force in J&K in spite of stiff opposition by the people. The exercise of power by the security forces in J&K very often in a brutal manner violating all norms of human rights is seldom addressed by the Union Government and the complaints of the people are not redressed.
It is stated that Article-35(A) of the Constitution has given authority and power to the State Assembly to decide on the subject of permanent residents of J&K State and to enforce legislation for the benefits of the inhabitants of the State. That is precisely the reason for which the President of India made a proclamation in 1954 as per the provision of Article-370 of the Constitution giving special status, benefits, privilege and opportunities to the people of J&K. It was made clear in the Presidential order that by such special arrangement for J&K, the rights of people of other States shall not be affected.
In this backdrop, pages from history would reveal that on October 20, 1947 in terms of Indian Independence Act-1947 and the Government of India Act-1935 after the erstwhile Maharaja Hari Singh of J&K signed on the instrument of accession on October 27, J&K acceded with the Indian federation. However, at the time of accession, the Maharaja wanted some special status for the State which accordingly on the mediation of Pandit Nehru, Sardar Ballav Bhai Patel and other stalwarts of the time was given to the State which was enshrined in Article-370 of the Constitution. It is gratifying that in spite of special status for J&K, the integration of the State with the Indian union was voluntary, unconditional and absolute. The people of the State also accepted this integration in the constituent Assembly of J&K on November 17, 1957.
Significantly, Article-3 of the J&K Constitution emphatically speaks that ‘Jamu-Kashmir State’ is an integral part of the Indian Union. For the aforesaid reasons, history would bear testimony regarding some special status accorded to the State which of course, has become anachronism with the changing demands of the time. It is ‘fait accompli’ that special status provision was a temporary measure. In this context, former Chief Minister of J&K and leader of National Conference Omar Abdulla has also raised his voice before the media that Article-370 is a bridge between the State and Union of India and in case it is withdrawn, the State would also be separated from the federal structure. There is no question of taking away Article-370 without the concurrence of the then Constituent Assembly of J&K which has to be recalled for approval.
In this context, it is noteworthy that excepting foreign affairs, defence and communication, in relation to other subjects if any law is enforced by the President of India in the State it would require the approval of the J&K Assembly. It may be stated that according to Article-370 there is separate flag and separate Constitution for J&K State.
It is striking to note that in 2014 a social action group namely ‘We the citizens’ challenged before the Supreme Court in a writ about the propriety of continuance of the provision of Article-370 on the ground that people of other States residing in J&K are deprived of their rights of acquiring property, getting Government service and also right to vote in the State only due to restrictions imposed by Article-35(A) and the Presidential order of 1954 on the basis of Article-370. The writ petition sought for withdrawal of the special status. It is remarkable that although J&K appeared in the case and took their stand in support of Article-370, the Government of India, it seems, had reservations. In the Independent Day message to the nation, Prime Minister Narendra Modi said that Kashmir problem will be solved not by hurling abuses, by bullets but by way of carrying the people of Kashmir with us.
Concluding, whatever may be the threatening statement of Mehabuba Mufti and Omar Abdulla, fact remains that the special status given to the people of J&K is now in a fluid state. However, in view of the present situation in the country, due to the war mongering attitude of China and the belligerent behavior shown by our immediate neighbour Pakistan, any debate, dialogue and discussion regarding withdrawal of Article-370 of the Constitution would be detrimental in the interest of India. The problem can be solved only by mutual trust and understanding, as Kashmir is an integral part of India and would continue to remain so under the sun.
Therefore it is suggested that when we have given some special privileges and status to the State of J&K, it would be fitting and proper that the President of India may be pleased to get the opinion of the Supreme Court under Artilce-143 of the Constitution to solve the pressing problem, keeping in mind the larger issues of national integration and sovereignty of India.
(The writer is a former special Judge, CBI, Mob: 9437022723)