Initiated Retrospectively

BJP’s day-one-controversy on Article 370 was just trial ballooning to address the galleries. R S Gull reports the right-wing party’s earlier exercise in which it failed to get a clue for undoing the past

Reports that Dr Jitendra Singh, the Udhampur MP pitch-forked as an MoS in PMO, was tasked to issue the controversial statement about Article 370 on the day one of Modi sarkar. The idea was to test the waters and address the vote bank that was expecting the new government to at least say publicly what it had promised throughout.

“It was just a trial balloon,” a senior journalist told from Delhi. “They had to address their constituency and the party felt Article 370 is the best way of triggering a controversy.”

But it is also a fact that RSS, the ideological base of the BJP, has remained committed to the abrogation of Article 370. The right wingers have launched their post-India movement by opposing the exclusivity of J&K in Indian federation. Now, the party is keen that a debate must start on the issue. The demand for debate is expected to get intense in coming days especially when the right-wingers need some political benefits in various Indian states going to polls this year and early 2015. Jammu, the winter capital of the state would start echoing with the cries for abrogating this Article as the party intends to consolidate its vote bank.

This may happen despite the fact that visiting Defence and Finance Minister Arun Jaitely was suggested last week by most important hosts in the state that BJP should avoid adding fuel to the fire. The minister, who is considered a top Kashmir expert in the party – he is married to an erstwhile Congress family in Jammu, was advised against two things very emphatically. Firstly: not to disrupt the development process and secondly; avoid jumping into a political intervention which could vitiate the peaceful atmosphere. It remains to be seen if the minister who went reassured over a peaceful Kashmir convinces the party or not.

Those who in know of things believe the party will continue to harp on abrogating this piece of legislation even though they know it is next to impossible. When Atal Behari Vajpayee became the Prime Minister with an improved mandate last time, highly placed sources said, the party forced him to act on the issue.

On the continuous insistence, the poet Prime Minister had tasked his National Security Adviser (NSA) to identify the top legal luminaries of the time and seek their opinion about the possibility of abrogating the Article 370. The issue was finally tackled by the then Home Secretary who is understood to have written expressly to 17 top constitutional experts of India. “Most of them are alive and you can count them,” one source privy to the development said.

Interestingly, all the 17 opinions were against the idea. The then Home Secretary is reported to have submitted the file to the Prime Minister with his note suggesting that abrogating Article 370 would be a “constitutional nightmare”. After the Prime Minister read the opinions of the experts, he has directed that the file be marked ‘secret’ and handed over to the NSA. Next time, whoever raises this demand, the file be shown to him.

The most interesting twist to the idea of Article 370 was courtesy A G Noorani, the best known Kashmir experts who is an authority on Kashmir. He has authored the most authoritative book on Article 370.

In a commentary that appeared in a Pakistani newspaper, Noorani has asserted that there are three issues vital to the debate. Firstly, it cannot be undone. Since this provision of the Constitution of India was negotiated by J&K and all powers of any changes were restricted to the constituent assembly that ceased to exist on November 17, 1956, there is no authority that can do away with it.

Secondly it has been reduced to a husk. Between 1954 and 1994, the central government issued 47 orders through the presidential proclamations extending to Kashmir 94 of the 97 entries in the Union list and 260 of the 395 articles of India’s constitution. Neither of these orders are constitutional, Noorani maintains.

And finally, it has “an international dimension”. Since the Article 1 of the Constitution of India applies to J&K by virtue of Article 370 (a), abrogation of it will snap the link. Constitutionally, J&K will cease to be a part of India.

“It is the international aspect which has been completely overlooked in the entire discussion,” Noorani wrote. “Article 370 was adopted in 1949 when India had publicly affirmed its commitment to hold a plebiscite in Kashmir. It discarded that commitment. But Article 370 which embodies it survives still and it cannot be abrogated.” This special provision, the expert asserts, “was not designed to rule out a plebiscite.”

Noorani believes that India’s constitution bears testimony to the fact that “Kashmir’s future is yet to be decided”. He refers to a 1954 order that overrides proviso to Article 253: “Provided that after the commencement of the constitution (application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of … Jammu and Kashmir shall be made by the government of India without the consent of the government of [the former].”

But all this debate cannot satisfy the pessimists in BJPs high voltage whisper campaign on the issue. What will be the consequences of a decision that abrogates Article 370? India’s assassinated Prime Minister Mrs Indira Gandhi had famously reacted to the autonomy restoration demand by saying that clocks of time cannot be turned back. But that is exactly what will happen if Article 370 will go. Kashmir will automatically limp into post-1947 time zone.

In that scenario, who will be the master of the situation? Read the point 9 of the Instrument of Accession. “I hereby declare that I execute this Instrument on behalf of this State and any reference to this Instrument to me or to the Ruler of the State is to be construed as including a reference to my heirs and successors.” Dr Karan Singh is alive!

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