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Time for BJP to run for cover on Article 370
India, July 05, 2011
Time for BJP to run for cover on Article 370
India, July 05, 2011
- Legal luminary A. G. Noorani has cited documentary evidence to establish that the late Shyama Prasad Mukerjee had fully approved J amp Ks special status
OUR BUREAU
NEW DELHI The BJP will have to run for cover as a new book cites documentary evidence to show that Article 370, which accords a special status to Jammu and Kashmir, had the full approval of the late Shyama Prasad Mukerjee.
The BJP invariably invokes Mukerjee while voicing its opposition to Article 370.
The book says this constitutional provision also had complete approval of then Home Minister Sardar Patel whom also the BJP cites as a strong opponent of Jawaharlal Nehrus move to grant special status to Jammu & Kashmir. Myths and delusions that have cropped up over the years about Jammu and Kashmirs special status within the Indian Union are busted by noted Constitution expert and legal luminary A. G. Noorani in his forthcoming book Article 370: A Constitutional History of Jammu and Kashmir to be released next week.
The book published by Oxford University Press makes out a case for restoring full autonomy to Jammu and Kashmir. It produces a wide range of documents to underscore politics behind the gradual erosion of Article 370, which was negotiated between Prime Ministers Jawaharlal Nehru and Sheikh Abdullah and had a stamp of approval from Sardar Patel and Shyama Prasad Mukerjee.
While all the provisions of Indian Constitution were debated in the Constituent Assembly after deliberations in its Drafting Committee, the Article 370 was discussed for five months by Nehru and his colleagues with Sheikh Abdullah, then Prime Minister of Jamp K, from May to October 1949.
The State of Jammu and Kashmir is the only State in the Union of India which negotiated the terms of its membership with the Union, says Noorani.
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.
Analysing the reality of the special statusof Jammu and Kashmir, Noorani quotes then Home Minister Gulzari Lal Nanda in the Lok Sabha on December 4, 1964.
With regard to rest of India, if a states powers are to be curbed, and correspondingly those of the Union enlarged, the elaborate procedure laid down in Article 368 will have to be followed, argued Nanda. However, in the case of Jamp K, a mere executive order by the President under Article 370 would suffice, he added.
His successors in office accepted this interpretation.
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. Noorani mentions an unfortunate breach by N. Gopalaswamy Ayyanger on October 16, 1949, in unilaterally altering the draft agreed with Sheikh Abdullah, who along with Mirza Afzal Beg were in the lobby. When they learnt of changes, they rushed to the House, but the changes had been passed.
If the 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, says the author.
Mentioning the cases of abuse of this Article 370, he refers to a Presidential order extending to Kashmir Article 249 of the Constitution empowering Parliament to legislate even on matter in the State List on the strength of a Rajya Sabha resolution. Concurrence was given by the Centres own appointee Governor Jagmohan. The manipulation was done in a single day against Law Secretarys advice and in absence of a council of ministers.
The author 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. The book has also presented rare material, letters memoranda, white papers, proclamations and amendments
