#KnowYourRights: On 68th Republic Day, Kashmiris ask when will India honour Article 370

Article 370, which came into force on January 26, 1950, grants special status to J&K and acts like a bridge between the state and the rest of the country

For those who believe that Jammu and Kashmir is just like any other Indian state and there is no issue to be resolved, this argument should be enough to shut them up, provided they are willing to go by law and logic, alike.

Well, J&K is the only Indian state which has its own constitution and separate flag. And, unlike other state assemblies, where state legislators have a 5-year-old term, the J&K assembly lasts for six years.

So what makes J&K special? It’s the Article 370 of the Indian constitution, which gives a unique status to this state. In fact, Article 370 acts like a bridge between J&K and the rest of the country. The Article that came into force on January 26, 1950, grants special status to the state of J&K. As per the Article, no one other than the natural descendants of the state has right to own immovable property in the state.

But then, if other princely states which acceded to Indian union after Independence don’t enjoy such special status, why J&K?  One reason for it can be that Maharaja Hari Singh, the King of the state, didn’t initially agreed for a complete merge with India. Rather his son and J&K’s last prince, Dr Karan Singh agreed to it.

Legal luminaries, on the other hand, hold a similar opinion. Justice Retd Hasnain Masoodi in an exclusive interview to InUth said Maharaja didn’t initially opt for accession but only sought military help from New Delhi to fight invaders. But New Delhi put the precondition that military help was subject to the signing of Instrument of Accession. “The accession was to justify and legitimise the sending of troops,” said Masoodi who has passed several landmark judgments in cases related to Article 370.

Over the years, separatist sentiment in Kashmir often brings debate over accession visa-a-vie Article 370 to the center-stage. In 2017, when unrest in Kashmir was at its peak, J&K’s last Yuvraj and Parliamentarian Dr Karan Singh spoke his “heart-and-head” out right inside Parliament. As per the convention, anything unparliamentary gets expunged, but his speech during the debate on Kashmir in the Rajya Sabha on August 10 emerged as a historic narrative on Kashmir dispute.

The senior Congress leader and former Sadr-e-Riyasat said Kashmir is a political issue where “India needs to bite the bullet at some point in time and resolve it”, even as he asserted that J&K’s relation with India is “governed by Article 370”.

“We say J&K is an integral part of India. Of course, it is. The day my father signed the IoA (Instrument of Accession), it became an integral part of India. On October 27, 1947, I was in my room, in my house. However, please remember something more. My father acceded for three subjects only, which included defence, communication and foreign affairs. He signed the same with other princely states. While all the others state subsequently merged, J&K did not merge with India.”

Pleading that there was “still an uncertainty with regard to the exact status” of J&K and its relation with the Indian Union, Dr Singh said: “Integral part doesn’t necessarily mean it will be exactly same as everything else.”

All this reflects that while other princely Indian states surrendered their complete sovereignty at the time of accession, J&K retained some of the powers with itself, as is visible in its separate flag, separate constitution or the unusually long tenure enjoyed by its legislators.

But then over the years Article 370 has been eroded.  Till 1960, Kashmir had its own Prime Minister and Sadr-e-Riyasat. Bakshi Ghulam Muhammad has been the longest serving Prime Minister of J&K, who ruled the state for eleven long years from 1953 to 1964.

But then erosion of Article 370 also had its fallouts. Prof Amitabh Mattoo, a globally-acclaimed researcher on Kashmir issue, believes that erosion of Article 370 has aggravated the problem. “Separatism grows when people feel disconnected from the structures of power and the process of policy formulation; in contrast, devolution ensures popular participation in the running of the polity. It can be reasonably argued that it is the erosion of Article 370 and not its creation which has aggravated separatist tendencies in the State,” Prof Mattoo stated in one of his research papers.

But while erosion of Article 370 continues with fresh attempts like alleged grant of State Subject rights to the non-State Subjects, can this law be scrapped altogether to bring J&K in uniformity with other states? Even though some political parties think on these lines, legal experts don’t find it ever possible.

Justice Hasnain Masoodi says there’s even no option to change it than to talk of any full-fledged abrogation.  He says the Article 370 itself states that only the state’s constituent assembly was that time empowered to make any such desirable change.  “Only the Constituent Assembly and not Legislative Assembly had rights to bring any changes.  But that time the constituent assembly didn’t exercise such powers, exclusively vested in it. So now there’s no such possibility.”

But then, political parties like BJP aspire to scrap it? “Well, you are talking about oxymoron possibility,” Justice Masoodi replies with a smile.

But what if someday Article 370 is really scrapped? Will it break the bridge between Kashmir and New Delhi that finds its roots in the Republic Day?