Kashmir Indepth

Murder of Article 370

Worse followed. In 1963, a directive was sent by New Delhi to Srinagar—integrate. In breach of the Delhi Agreement of 1952, flouting Kashmir’s strong commitment and the Assembly’s unanimous resolution for an elected Head of State, the Constitution of Jammu & Kashmir (Sixth Amendment) Act, 1965 was enacted to replace the elected Sadar-i-Riyasat by a Governor appointed by the Government of India—removable or transferable at its will.

This is void because it destroyed “the basic structure” of the Constitution. In the famous Keshavanand Bharati Case (1973) 4 SCC 225, the court held that “the Republican and Democratic form of Government” was part of the basic structure. Removal of an elected head of State and imposing in his place a Governor nominated by the Centre flouts the basic structure as well as the federal principle. This applies also to the President’s orders under Article 370. They also wreck the basic structure of the autonomy of the State.

This is quite apart from the fact that those orders by the President flout the very terms of Article 370. Any order which increased the Centre’s powers or extended to Kashmir constitutional provisions additionally required ratification by the Constituent’s Concurrence and was valid only until the Assembly was convened. It had to ratify the Government’s Concurrence. Once the Assembly ceased to exist, no Presidential order could at all be made thereafter, for the ratifying body was gone. The Constituent Assembly met first on October 11, 1951. The State government’s power to concur with the Centre on its amassment of power over the Centre was gone. The Assembly dissolved itself on November 17, 1956. Yet, 47 such illegal orders were made after November 17, 1956, with “the Concurrence” of the State governments. The latest was last year on goods and services tax (GST).

The murder of Article 370 does not stop there. It empowered the President to extend to Kashmir provisions of India’s Constitution, subject to the stated limitations. It certainly gave no such power to the President to amend the State’s Constitution.

On July 23, 1975, the President made an Order. No. C.O. 101, supposedly under Article 370, to amend the State’s Constitution to debar the State’s Legislature from amending Kashmir’s Constitution in respect of the Governor, the Election Commission, and even the composition of the upper house, the Legislative Council “being matters specified in Sections 138, 139, 140 and 50 of the Constitution of Jammu & Kashmir” unless it received the President’s assent—that is, the Government of India’s consent. Section 147 of the State’s Constitution requires the Governor’s assent for constitutional amendments.

This was in pursuance of Paragraph 5 of the Agreed Conclusions signed by Mirza Afzal Beg and G. Parthasarathi in New Delhi on November 12, 1974, doubtless with the approval of their respective principles, Sheikh Abdullah and Indira Gandhi. It was not a constitutional document which the Prime Minister of India signed with a political leader as part of power sharing. When she withdrew support to him forcing his resignation, the entire accord of February 1975 collapsed. It was like the Punjab Accord (July 24, 1985) the Assam Accord (August 15, 1985) and the Mizoram Accord (June 30, 1986). The Kashmir Accord was explicitly a “political accord between us” as Indira Gandhi wrote (December 16, 1974). She broke the political basis in March 1977 wrecking the entire accord.

The net result is that out of the 395 Articles of India’s Constitution, 260 were extended to Kashmir. Out of the 97 entries in the Union List, 94 were extended; most illegally. It is this husk of Article 370 which the Ram Madhav-Haseeb Drabu Accord of 2014 perpetuated. The 1975 Accord was humiliating. The Shimla Accord of 1972 impaired Sheikh Abdullah’s power to bargain. The 1975 Accord was, nonetheless, a humiliation. Mufti Mohammed Sayeed had a better option. He preferred, as did Mehbooba, to sell his people’s rights for a part with the Bharatiya Janata Party. The Ram Madhav-Haseeb Drabu Accord was worse than a humiliation. It was a despicable betrayal. Kashmir’s history is marred by such betrayals.

It, is of course, perfectly legitimate, rightful and constitutionally valid of Kashmir’s Assembly to pass a resolution expressing its view that the illegalities mentioned above are not acceptable.  (Courtesy: Frontline Magazine)

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