Eminent Kashmiri activist Shri Sushil Pandit explains how the Instrument of Accession was signed by Maharaja Hari Singh in October 1947, acceding the state of Jammu & Kashmir into the Republic of India and how Article 370 came into being almost two years after.
He also explains the circumstances under which Article 370 was included in the Constitution of India and how it is nothing more than a ‘temporary’ and ‘transient’ provision, which can be revoked by a simple Presidential Proclamation, to fully integrate Jammu & Kashmir into the Union of India. Do watch the video given below to get a clear understanding regarding Article 370:
Questioner: Sir the Instrument of Accession sent by Maharaja Hari Singh was a conditional one. All the authority of state of Jammu & Kashmir was not handed over to Union of India. So revocation of Article 370 is not that easy. The people who were shouting for the removal of Article 370 since Independence, now today they are in power in Kashmir and in Centre. Leave apart removal of Article 370, they are not ready to talk about Article 370.
Sushil Pandit: I am happy you brought it up because I thought… I have been talking about it so often but I thought repeating it… but this is an extremely important question, and I’ll like some minutes here. First of all, I’ll give you some facts. The document of accession which brought Kashmir into Union of India was signed on 26th of October, 1947. This document of accession is exactly the same, not even a full stop or comma is different from what 562 other princely states signed in order to merge into India. Okay, Sir? In 1947, on 26th of October what Maharaja Hari Singh signed was exactly what other 562 princely states signed to merge into India. That document of accession is the same. Yes, all those documents of accession were conditional. There were four things that Government of India, Union of India had in their power. External affairs was one of them. Defence was another. Communication was third. And currency was fourth. So, it was same for the state of Jammu & Kashmir.
Then India got busy putting together its Constitution. You must remember, at that time in 1947 there was no Constitution. Constitution writing was concluded on 26th of November 1949. And ten days before that, the idea of Article 370 emerged. Not at the time of accession, Sir. And at that time, when Sheikh Abdullah, who was part of Constituent Assembly that wrote the Constitution of India, and his three other colleagues from Kashmir came to Nehru and said, ‘We are a Muslim majority state, what about a special status for us’? Nehru said, ‘Go to Dr. Bhimrao Ambedkar, he’s the Chairman of Drafting Committee, give him your proposal, he’ll do it’. When Sheikh Abdullah goes to Dr. Bhimrao Ambedkar and Bhimrao Ambedkar read his proposal, Bhimrao Ambedkar’s response was, ‘Are you asking me to backstab this newly independent Republic by creating a provision… by creating a provision which discriminates against the citizens of India and gives the special privileges to just the citizens of Jammu & Kashmir? That citizens of Jammu & Kashmir can do whatever they feel like in rest of India but the rest of India cannot do anything in the state of Jammu & Kashmir? And I cannot commit this treachery,’ and he refused to incorporate it.
Because Congress had the majority in the Constituent Assembly, Nehru thought that the Working Committee of Congress, if adopts this, Constitution… Constituent Assembly will automatically have to adopt it. You’ll be pleased to know that Working Committee of Congress, in one voice, without exception rejected Article 370. Refused to take it. Then Nehru had to tell Sardar Patel and also, Gopalaswami Ayyangar, who was his Minister without Portfolio in the Cabinet, to make sure that this article is included in the Constitution of India while he was going on a visit abroad to London. Because it was an interim government, because Patel and Nehru had a very difficult relationship, and Patel did not want to be accused of plotting against his own Prime Minister, he had to comply. And what he did was, in order to create a safeguard, wrote two words preceding and defining this article saying it is a temporary and transient provision.
So, Article 370 as per its text is a temporary and transient provision in the Constitution of India. It is another matter that it has been temporary for the past 70 years. So, what happens when Constituent Assembly is adopting Article 370, Dr. Bhimrao Ambedkar boycotts that session and walks out. Please remember. Please read what he has to write about it.
So, this happened in November 1949. While the process of integration of states was on, and every other prince… and the prince and the principality and the… the… the rajwadas, the princely states got integrated into India, it came through a process. They created a Constituent Assembly in their respective places, and those Constituent Assemblies gave themselves a Constitution. In some cases they said, ‘we don’t want to give ourselves a Constitution, we adopt (the Constitution of) India as our own.’ And that is how, those four areas of exception got removed and a full integration took place. Jammu-Kashmir also gave itself a Constituent Assembly. They also created a Constitution of India… Article 3… Constitution of Jammu & Kashmir. Incidentally, Jammu-Kashmir has a Constitution different from Constitution of India. The only state. Article 370 provided for it. It says in that Constitution Article 3… that Jammu-Kashmir is an inalienable part of India. It says so. But it creates a lot of other travesties. What does it do? Now that Constitution was promulgated in 1957. It was finalized in 1956. Constitution of India was promulgated on 26th of January 1950. So, seven years later, if a new Constitution comes by a state of Indian Union, you can always expect it to be an improvement over an earlier Constitution. Whenever a new thing is brought about, you have other examples in front of you to improve upon, right? This is a regressive document.
Do you know Constitution of Kashmir has no fundamental rights? No mention of fundamental rights. Constitution of India has Minority Rights. Article 25 to Article 30 give such privileges to the minorities of India, that are not available to even majority community. The Constitution of Kashmir doesn’t utter the word ‘minority’ even once. Do you know the perversion because of this? We 3% Hindus in the Valley of Kashmir were the majority. And 97% Muslims of the Valley were the minority. And this is what 370 allows.
So, 370 was not a condition, basis which, accession happened. Accession happened more than two years before 370 was even thought of. Or incorporated. Number one. Number two, 370 is an article which is temporary and transient which has to go. Number three, it is part of Indian Constitution, not the Constitution of Jammu & Kashmir on which Jammu & Kashmir Assembly has any jurisdiction. Constitution of India’s jurisdiction is within Parliament. And even Parliament is not needed to repeal this because it is temporary and transient. After the Constituent Assembly was dissolved, the… the powers rest with the President.
Incidentally, there was another provision which was temporary and transient besides 370. That was taken off five years later with mere Presidential proclamation. Which means, even this needs only a Presidential proclamation and nothing else. If somebody tells you that you need majority in this session, in this house or in that house, please show the present Finance Minister and Defence Minister, his own speeches, on YouTube where he says that only a Presidential proclamation is needed. As a lawyer he said so. His own opinion. This speech was delivered in India International Centre in 2014 January. I was witness to that speech. So when he was in Opposition… and that speech is available on YouTube, please go and listen to him.
So, Article 370 has to go. It will not change anything on ground. Let me tell you. It will only create a constitutional mechanism for you. Eventually… eventually… it is your political will… it is the measure of your political will that will work. Removing Article 370 is like placing a piece of cake in front of you. I can do that. But to eat it, you will have to reach out and put it in your mouth. If you’re not willing to do that, if you don’t have the guts for it, sorry nothing can help you.