New White Paper on Article 370

The chapter 370

Z. G. MUHAMMAD

It is a political naivety. To say debating Article 370 is being sucked into the ‘dominant discourse’ or falling in the RSS trap.  On 25 December 2030, some best legal minds and constitution experts of Kashmir had gathered on a chilly day in a local hotel and dusted off this Article of hackneyed interpretations. During brainstorming deliberations it became evident that the Article under debate with all its historicity and dynamics does not strength the ‘dominant discourse’ but bolsters the ‘Kashmir narrative’- that many of us prefer to call as the peoples discourse.
Mian Abdul Qayoom and Zafar Shah, two important legal wizards of Kashmir analyzing Article 370 along with other allied Articles, such as 307, 368 and 253 with all provisos attached to these convincingly made a strong point, that the article 370 testifies, “Kashmir Dispute” is yet to be settled in accordance with the charter of the United Nations. Both the speakers and discussants emphasized that   the Article 253 leaves scope for secession of the state. “This Article, which has direct bearing on Kashmir Dispute read with Article 246, and the Union List items 10,12, 13 and 14—would make the accession of Kashmir to India provisional and by implications provide for her even secession. The view therefore, that the State of Jammu and Kashmir could not secede from India and that even the Parliament had not the power to give effect to such a decision and thereby de-annex the State is not borne out from the provisions of the Constitution of India itself.” (A.G. Noorani Article 370 page 325)
By analyzing words “temporary and transitional” attached to this Article, they took the discourse beyond the N.C. debate   of “acceding and merger” and saw this Article as proviso within Indian Constitution for allowing people to decide their final political destiny.  In the words of P.L. Lakhanpal, ‘The word “temporary” appearing at the start of this Article “implies the constitutional relations between Kashmir and India to be temporary and transactional.”
The discussion over the genesis of Article 370 and the speech of Indian Cabinet Minister, N. Gopalsaswami Ayyanger on 17 October 1949, in the Constituent Assembly brought accession, the ‘Instrument of accession’ once again into sharp focus. The “Instrument of Accession”- date, fact and authenticity of which continues be questioned by many leading historians of the world and Kashmir has been the “principal document” that India has been quoting in its defence for sending its troops to Srinagar on October 27, 1947. India had accepted ‘arrangement’ with the condition that the question of accession should be decided in accordance with the wishes of people.’ Even various clauses within the “accession document” testify that the, “sovereignty or any part thereof over Jammu and Kashmir had not been parted with in favor of India; but under terms of this Instrument, it continued to vest in the State and that any Constitution of India which might be adopted in future would not bind the State ipso-facto.”
These clauses testify, “Article 1 of the Constitution of India could not and had not therefore provided for a permanent accession of Jammu and Kashmir to the Union of India, it would be void and illegal in view of express provision of the Instrument of accession”.  So within the meaning of Article 370, even “Article 1 of Indian Constitution that shows Jammu and Kashmir as part of Bharat “applies provisionally to Jammu and Kashmir.” Notwithstanding, the provisions within the Instrument of accession” indicating that Jammu and Kashmir had not surrendered its sovereignty to India, the   debate assumed yet another important dimension.  That after India took Kashmir to the UN Security Council on January 1 1948, “the Instrument of Accession” even if it existed or carried genuine signatures by the ruler of the State became of “no-consequences”. Had the Security Council recognized India’s claim that “Jammu and Kashmir had acceded to the dominion of India and was a part of India”, it would not have passed resolutions guaranteeing right of self-determination to people of Jammu and Kashmir and asking for holding of plebiscite under its aegis for deciding future of the State. Nehru understood implication of the UN resolutions, how these had not recognized accession, shocked at the development he bitterly regretted going to the     United Nations.  To quote leading contemporary Indian historian Ramachandra Guha, “The Kashmir problem was recast as part of the unfinished business of partition. India suffered significant symbolic defeat when the Security Council altered the agenda item from Jammu and Kashmir question to the India-Pakistan question.” (India After Gandhi p72)
The UN Security Council not recognizing the “accession” made Indian leaders to see ‘independent Kashmir as the best way to come out of the tangle’. ‘Gopalaswami Ayyangar who represented India in the Security Council handed over a note to Sheikh Abdullah in 1949, on their way back from the Security Council saying that Independent Kashmir was only feasible, practical and honorable solution for all parties.’ Sir B.N. Rao India’s representative at UN after UN resolution favored independent Kashmir. “Deputy Prime Minister of India Sardar Patel favored an outright partition of Jammu and Kashmir and was least enthusiastic about the Valley of Kashmir being integrated with India.”
Nehru in his December 1947, letter to Maharaja Hari Singh, had outlined various options for a settlement of Kashmir. He had suggested plebiscite for the whole of Jammu and Kashmir, to decide which dominion it would join or the state could remain as independent, with its defence guaranteed by both India and Pakistan.’ However, when UNSC passed the ‘plebiscite resolution’ or his colleagues talked about independent Kashmir, he got nervous. True, Nehru reiterated in forum of honoring the UN resolution but  it was only river procession organized by Abdullah in October 1949, for him at Srinagar that emboldened him. To quote   10 October 1949 Time Magazine it was after this, “India considered that battle for Kashmir had been won- and that intended to keep the Prize”.
The debate in the RTC on 370 touched many other virgin subjects, the debate was as good as a white paper on the Article 370 and its being dovetailed to the UN resolutions on Kashmir.

Published in Greater Kashmir on 30-12-13