Even if permanent, Article 370 rightly abrogated

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Even if permanent, Article 370 rightly abrogated

Thursday, 22 August 2019 | BISWARAJ PATNAIK

On April 3, 2018, the Supreme Court opined that Article370 has acquired a permanent status since the Constituent Assembly had ceased to exist. Hence, the President would fail to fulfil the mandatory provisions required for abrogation under the circumstances. The apex court made it clear that since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, Article 370 had taken on the features of a ‘permanent provision' despite being titled a ‘temporary provision' in the Constitution.

Repealing of Article 370 was a poll promise of the BJP, which it could not keep during the Vajpayee Government due to lack of a majority.

Ultimately, the BJP-led NDA Government gained an absolute majority and scrapped the Article to keep the tallest poll promise in history. There will be resistance and protests, but a ghastly obsolete, irrelevant, lopsided Article had to be deleted as it benefitted a select few.

History shows that only after integration into India has the Kashmiris' fate improved immensely on the quality of life front. The Kashmiris' oppression and colonial exploitation had started long before the formation of modern India. Ever since its annexation by the Mughal Empire in 1589, Kashmir has never been ruled by ethnic Kashmiris. The region was ruled by Afghans between 1753 and 1819; Sikhs did so (1819-46) and, finally, Dogras (1846-1947) until India was partitioned.

During the Mughal rule, Kashmir was awfully poor both due to constant famines and misrule. Mughals only built hundreds of gardens for luxury summer refuge of the rich. The Afghans came next only to send the innocent Kashmiris to work as slaves in Afghanistan. They imposed extortionate taxes on the region's famed shawl weavers, causing the shawl industry to die.

The Sikhs, according to British explorer William Moorcroft, treated the Kashmiris a ‘little better than cattle'. In 1846 when the East India Company defeated the Sikhs in the first Anglo-Sikh war and sold Kashmir to Gulab Singh, a Dogra ruler of Jammu who had sided with the British in the war. The successive Dogra rulers imposed further extortionate taxes to make good the price of 7.5 million rupees they had paid the British company.

India's first Prime Minister Nehru sent troops to protect Kashmir from  Pakistani invasion. So, in return, Hari Singh signed the accession instrument to merge with the Indian dominion. Popular mass leader Sheikh Abdullah ensured Article 370, which guaranteed Kashmir's autonomy in the Indian Union. Thus technically, the Article became non-negotiable till accession remained in force. All this was because of the prevailing circumstances. Now that Kashmir is enjoying the best-ever kind of rule, without one oppressive or despotic ruling class, except perhaps the descendants of the Sheikh and the Moofti clan.

Mahatma Gandhi too has his passive role in supporting the integration of the region. At a prayer meeting on 4th January 1948, Gandhi had said,

“Today, there is talk of war everywhere. Everyone fears a war breaking out between the two countries. If that happens, it will be a calamity both for India and for Pakistan. India has written to the UN because whenever there is a fear of conflict anywhere. It is a long memorandum already cabled. Pakistani leaders Zafrullah Khan and Liaquat Ali Khan have since issued long statements. I would take leave to say that their argument does not appeal to me. You may ask if I approve of the Union Government approaching the UNO I may say that I both approve and do not approve of what they did. I approve of it because after all what else are they to do? They are convinced that what they are doing is right. If there are raids from outside the frontier of Kashmir, the obvious conclusion is that it must be with the connivance of Pakistan. Pakistan can deny it. But the denial does not settle the matter. Kashmir has acceded to India upon certain conditions. If Pakistan harasses Kashmir and if Sheikh Abdullah of Kashmir asks the Indian Union for help, the latter is bound to send help.

At the same time Pakistan is being requested to get out of Kashmir and to arrive at a settlement with India over the question through bilateral negotiations. If no settlement can be reached in this way then a war is inevitable. It is to avoid the possibility of war that the Union Government has taken the step it did. Whether they are right in doing so or not, God alone knows. Whatever might have been the attitude of Pakistan, if I had my way I would have invited Pakistan’s representatives to India to meet and discuss the matter forworking out some settlement.

They keep saying they want an amicable settlement, but they do nothing to create the conditions for such a settlement. I shall therefore humbly say to the responsible leaders of Pakistan that though we are now two countries – which is a thing I never wanted – we should at least try to arrive at an agreement so that we could live as peaceful neighbours. Let us grant for the sake of argument that all Indians are bad, but Pakistan at least is a new-born nation which has more ever come into being in the name of religion and it should at least keep itself clean. But they themselves make no such claim.

It is not their argument that Muslims have committed no atrocities in Pakistan. Mistakes were made on both sides. But this does not mean that we should persist in those mistakes, for then in the end we shall only destroy ourselves in a war and the whole of the sub-continent will pass into the hands of some third power. Therefore, the two Dominions should come together with God as witness and find a settlement.

The matter is now before the UNO. It cannot be withdrawn from there. But if India and Pakistan come to a settlement the big powers in the UNO will have to endorse that settlement. Let us pray to God to grant amity with each other, or if we must fight, then let us fight to the very end. That may be folly but sooner or later it will purify us.”

The British during departure had left behind 565 princely states and a relatively small portion of India under direct rule which the crown organised only after the Sepoy mutiny of 1857. Most states chose to merge with India. The only Muslim-majority state of Jammu and Kashmir could have gone away to Pakistan if Sheikh Abdullah has not happened to the region when the Dogra king had hardly any control over Kashmir. They had trust in the Sheikh as a saviour, who hated the non-secular Pakistan. The rest of history is just too well-known by now. Muslim majority, unpopular king, and a mass beloved mass leader- all put together created a peculiar situation. King Hari Singh knew without the Sheikh, he would be nowhere. So he signed the instrument by way of formality only when the Sheikh called the shots on conditions.

Nehru agreed because of Kashmiri ascendancy, against a backdrop of complete indifference by other big leaders including Sardar Patel. Dr Ambedkar too had put his foot down to the special status demand, probably because he too was not keen on keeping Kashmir which had to be placated, at least for the time being, given its sensitive status.

Now, the people in Kashmir are certain to witness days of great development. The Supreme Court has to gauge the merit of abrogation of Article 370 on the basis of ground realities.

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