Bhim Singh, a prominent Dogra politician of Jammu & Kashmir who has been leading a campaign for the abrogation of Article 370, today called on members of the Indian parliament to reject BJP’s J&K reorganization bill.
Singh, a descendent of General Zorawar Singh of the erstwhile Kingdom of Jammu & Kashmir, objected to taking away the status of a state from Jammu & Kashmir.
Three years ago, Singh had issued a statement threatening to go to the UN if necessary to get Article 370 removed, and urged the BJP government to do so in the interests of both the people of the state and the rest of the country.
Interestingly, the BJP government has followed his legal advice in cancelling Article 370 by using the powers given under the article itself.
“Article 370 has guaranteed powers to the President of India which were enjoyed by the Viceroy of India before January 26, 1950. The President of India shall use his power within the meaning and scope of Article 370 which has itself become outdated, undesirable and unacceptable,” Singh had said then.
“Parliament of India has full authority and competence to amend Article 370 by a simple majority because Article 370 is a temporary provision… The state acceded to the Union like other 577 states in the Union of India and were merged in the Union.”
The BJP government has largely followed the above methodology, though the Article itself has not been erased as such.
However, in addition to defanging the article, the government also temporarily converted Jammu & Kashmir into a union territory, stripping away its power as a full state.
This has been done to give the center a more direct role in monitoring the situation, including any protests, that may arise out of the cancellation of Article 370. The home affairs minister promised the parliament that he will restore full statehood as soon as normalcy is restored, in case of protests.
He said he doesn’t support BJP’s bill as “it has asked for depriving the State of Jammu & Kashmir its 250 years old states status which was founded by Maharaja Gulab Singh in 1846.”
Bhim Singh said he shall mobilize the public opinion in India and abroad “against converting one of the oldest states of India into a Union Territory by calling it Jammu & Kashmir.”
He said he was appealing to the “people, and particularly the youth, in Jammu & Kashmir to oppose this move of the BJP Government and save the hundreds years old history of the State of Jammu & Kashmir.”
HISTORY OF ARTICLE 370
Like other princely states, Jammu & Kashmir was given the option of calling a constituent assembly and creating its own constitution when it acceded to India. Given that India was conceived of as a union of states, it was not considered unreasonable that constituent states would keep back some of the powers at their level and not pass it to the Union.
Under the instrument of accession signed by the Maharaja of Kashmir, only policies relating to defense, external affairs and communications were delegated to India, and the status of other subjects were to be decided later — by the constituent assembly.
Despite such a provision, most princely states that joined the Union of India were not interested in convening their own constituent assemblies and coming up with their own constitutions.
However, Jammu & Kashmir opted to use of the provision and set up a constituent assembly in 1951, which took five years to create a constitution for the state.
Even as the constituent assembly was being convened in 1949, a temporary provision, called article 370, was added to the Indian constitution to prevent the Union government from unilaterally expanding the list of subjects applicable to the state without the consent of the local government.
Article 370 was created on the understanding, and the premise, that the constituent assembly will give a clear and final opinion on which additional subjects were to be delegated to the union list and which would be kept back in the state once its primary job was done.
As a further precaution and to prevent Article 370 itself being amended by the Indian parliament, another order was issued in 1954 that exempted Jammu & Kashmir from being affected by any amendments to the constitution that did not have the concurrence of the constituent assembly of the state.
According to this ‘order’, it became impossible for India to amend the constitution of India — as far as it related to J&K — without the consent of the constituent assembly of Jammu and Kashmir, which at the time was still framing the constitution.
However, in 1956, the constituent assembly of Jammu & Kashmir dissolved itself without making any recommendations on expanding the applicability of the Indian constitution beyond the areas specified in the agreement between the Union of India and the Maharaja of Jammu & Kashmir at the time of accession.
The BJP government has now got over the problem of the ‘missing constituent assembly’ by equating the constituent assembly with the state legislature. Even this would not have been enough, as the central government would still require the assent of the J&K assembly to abrogate Article 370.
However, the BJP government argues, with some legal justification, that when any state is under President’s Rule, all powers of the state legislature stands transferred to the central parliament, and therefore, the union parliament can provide consent on behalf of the state legislature.
It remains to be seen if such an argument is accepted by the Supreme Court, where the move is almost certain to be challenged.