Noorani in defence of Article 370

Noted constitutional expert and legal commentator A G Noorani has come out with a comprehensive work exclusively dealing with the contentious Article 370 of Indian Constitution that guarantees the “special status” of Jammu and Kashmir state with Indian union. A well documented work, “Article-370, A Constitutional History of Jammu and Kashmir”, this is first of its kind as it covers the wide-ranging developments right from 1947 to 2010.

A copy of the book, published by Oxford University Press, to be released on July 14 in New Delhi was made available to Rising Kashmir. Noorani has not only carried out an autopsy of the Article but has taken the lid off many controversial issues related with this provision. Fundamentally he has touched upon how Kashmir’s tallest leader Sheikh Mohammad Abdullah was deceived by none other than his so-called friend Pandit Jawahar Lal Nehru.

In the wake of the raid by Pakistani raiders in 1947, Pandit Nehru knocked the door of United Nations which later on passed resolutions giving people of Jammu and Kashmir a “hope” to decide their future. This was supplemented by Nehru’s promises from time to time stating that people of the state would be given opportunity to decide their political future. This he said in Indian parliament and in Kashmir besides in the communications made during that fateful period. However, Noorani’s intense research clearly shows the intent the first Prime Minister of India had towards Jammu and Kashmir. In a startling revelation he mentions that Nehru was for the abrogation of Article 370 on which he tried to bring Sheikh Abdullah and his association to the point to continue the relation with New Delhi. In spite of being an architect of Article 370 Pt Nehru told the Lok Sabha on November 27, 1963 that “"It [Article 370] has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close. There is no doubt that Kashmir is fully integrated… . We feel that this process of gradual erosion of Article 370 is going on. Some fresh steps are being taken and in the next month or two they will be completed. We should allow it to go on”.
Union Home Minister, Gulzari Lal Nanda said in Lok Sabha on December 4, 1964 “only way to take Indian constitution to Jammu and Kashmir is through the application of Article 370. It is a tunnel. It is through this tunnel that a good deal of traffic has already passed and more will”. According to Noorani, Nanda concluded, “What happens is that only the shell is there. Article 370, whether you keep it or not, has been completely emptied of its contents. Nothing has been left in it”.
But what is important to note is that the original draft of Article 370 on which Sheikh Abdullah and Sardar Patel had serious difference was unilaterally altered by N Gopalaswamy Ayyangar, without the consent of Sheikh and his colleagues. Noorani makes an important point that had the original draft of the Article not been altered Sheikh’s arrest in 1953 would have been impossible. He states that Sheikh Abdullah along with Mirza Afzal Beg was in lobby at that time and when they learnt of changes, they rushed to the House, but the changes had been passed. If original agreed draft had been approved, the ouster of Sheikh later in 1953 would have been impossible. “It was an unfortunate breach that created distrust”.
Noorani’s book is coming up as historical documents as it pushes to the wall the main opposition in India- Bhartiya Janta Party (BJP) that has been in the forefront of demanding the abrogation of Article 370.  But in that context the book shows the demand in a very bad light as BJP’s ideologue Shyama Prasad Mookherjee had approved the Article 370. Noorani maintains that it took Nehru and Sheikh five months to decide about this special relationship and Jammu and Kashmir was the only state in India that negotiated its relationship with New Delhi. He believes that Article 370 was a solemn compact with neither side mandated to amend or abrogate it unilaterally, except in accordance with the terms of that provision.

He further says that Jammu and Kashmir was the only state to declare its intention to have its own Constitution drafted and did not accept Part B of the Constitution of India. Mentioning the cases of abuse of this Article 370, legal luminary Noorani says on July 30, 1986, the President made an order under the Article, extending to Kashmir Article 249 of the Constitution in order to empower Parliament to legislate even on matter in the State List on the strength of a Rajya Sabha resolution. Concurrence was given by the Centre’s own appointee Governor Jagmohan. The manipulation was done in a single day against Law Secretary’s advice and in absence of a council of ministers.

Uncovering the distaste in relationship between Nehru and Sheikh before August 1953, Noorani reproduces the communication between them. In one of the notes written by Nehru from Sonamarg tourist resort, it gives an indication how the mistrust had developed between the two. In reply to one of the letters, Sheikh wrote to him (Nehru) “I agree the personal relationship between the individuals should not be a consideration where larger interests are involved. Friendship and sentiments are worthy of respect but they should not come in the way of dispassionate appraisals of one another’s difficulties”. In the same letter he wrote “Muslims may rightly feel that in spite of you and many others, the ideals of secular democracy are not much in evidence in so far as treatment of Kashmiri Muslims is concerned”.

The book highlights the factors that led to arrest of Sheikh and erosion of Article 370 in detail. One development in that backdrop is very important for any student of Kashmir politics to note. It is about the deliberations of National Conference working committee that met in May 1953 under the presidentship of Sheikh Abdullah. With Moulana Mohammad Saeed Masoodi, Mirza Afzal Beg, G M Sadiq, Sardar Budhsingh, Bakhshi Ghulam Mohammad, Girdari Lal Dogra and Pandit Shamlal Saraf as members it had given three proposals to resolve Kashmir issue. They are:
 (a) Overall plebiscite with conditions as detailed in the meeting of June 4, 1954 (this apparently was in reference to Moulana Masoodi’s suggestion that Independence may be included as an option in the plebiscite)

(b) Independence of whole state
 (c) Independence of whole state with joint control (of India and Pakistan) over foreign affairs.
(d) Dixon plan with independence to plebiscite area
(Bakshi Ghulam was emphatically in favour of putting option (d) as first one)
The book makes a strong case to believe that it was more because of deceit on part of rulers in Delhi than the conduct of political leadership in Srinagar that is responsible for making wreckage of Article 370. Notwithstanding the fact that the instruments were Bakhshi Ghulam Mohammad and G M Sadiq, it portrays Sheikh Abdullah as “innocent” as far as this particular issue is concerned, though it was his sweet will that led to accession.

With 92 historical documents placed in the book it also suggests revisiting the Article 370 with a draft proposal. These include rare letters, memoranda, white papers, proclamations and amendments. No stylistic or substantive change has been made to the documents to maintain authenticity. Noorani believes that given the political will, sincerity of purpose, and a spirit of compromise, it is not difficult to retrieve from the wreckage of Article 370 a Constitutional Settlement which satisfies the aspirations of the people of Jammu and Kashmir.