Srinagar: Article 370 of the Indian constitution may have been hollowed out due to its gradual erosion but still remains relevant as it “reminds the government and people India of their commitment to right to self determination to people of Jammu and Kashmir”, the J&K High Court Bar Association president Mian Abdul Qayoom said Wednesday.
Addressing a seminar —“New Challenges to Resistance Movement”—organized by the lawyers’ body here, Qayoom identified the Article 370, which grants special status to Jammu and Kashmir in the Indian constitution, as one of the six issues concerning the ‘freedom’ struggle of Jammu and Kashmir in contemporary times.
“They say Article 370 was eroded by others but the first man to do it was (National Conference founder) Sheikh Mohammad Abdullah himself,” Qayoom said, referring to Sheikh’s signing of the 1952 Delhi Agreement.
“The Delhi declaration was as a result of difference which cropped up between Sheikh Abdullah and Pandit Jawaharlal Nehru (first Prime Minister of India) soon after Article 370 which came into force on 26 January 1950,” he said. “Sheikh Abdullah himself accepted it,” he said, highlighting that as per the Agreement, Sheikh agreed over jurisdiction of Supreme Court on Jammu and Kashmir and that it should be the final court of appeal in all civil and criminal appeals.
“There is then jurisdiction of Comptroller General, etc.,” he said, emphasizing the erosion in Article 370 which as per him says that Parliament will make laws only with respect to Defence, Foreign Affairs and Communication and that too with consultations and approval of state.
“No other law will be made applicable under union and concurrent list as per the Article.”
After Sheikh’s arrest in 1953, Qayoom said, Bakshi Ghulam Mohammad was installed in power.
“Bakshi left no stone unturned to further erode the Article 370,” he said.
He dealt in detail how the subsequent series of changes were made to make most laws of India applicable to the State.
“Gulzarilal Nanda as Home Minister of India in his address to parliament on December 4 1964 said that Article 37o would be used to serve as tunnel in the wall to increase India’s grip over Jammu and Kashmir,” he said. Nanda was Prime Minister of India between January 11 1966 to January 24, 1966.
“We are being told we are protected by Article 370. Then there were 1964 order about transfer of high court judges etc. Change of Sader-e-Riyasat, Lok Sabha seats were increased to six from four in 1966. In 1986 parliament passed a law of Constitutional Application Order. During Jagmohan’s governor rule, another Act was passed which gives parliament powers to make laws which fall within the state list,” he said to substantiate his assertion that Article 370 is “hollow”.
“If we see there is nothing in the Article 370 and it is hollow but in my opinion it still has relevance for us. When it was added in 1949 in the constitution of India, Pandit Jawahar Lal Nehru was conscious about International Commitment lest the man knew that he would face humiliation before world,” he said, adding, “Some people like Muzaffar Hussain Beigh (PDP parliamentarian and supreme court lawyer) has said that there is no change is Article 370, even a comma has not been changed, where is Article 370?.”
The relevance of the Article, he said, is that it reminds government of India and people of India that they have committed to right of self determination to people of Jammu and Kashmir.
“It’s a reminder that Kashmir is not fully integrated with India and instrument of accession is only on foreign affairs, defence and communication and nothing else.”
Earlier he referred in detail the role of Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh), sheikh Abdullah, Nehru and Shyama Prasad Mukherjee in inserting of Article 370 in Indian constitution.
“As recorded in a division bench judgment of 1953, Ayyanger stated that government of India has committed themselves to people of Jammu and Kashmir that an opportunity would be given to people of Jammu and Kashmir to decide for themselves whether they will remain with Indian republic or get out of it.
During the same time, Jawarhar Lal Nehru made another statement which, he said, is also very important.
“I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion,” Qayoom quoted Nehru.
Other issue which was identified as important for the freedom struggle was a writ petition filed by the Panthers Party in Supreme Court against the Resettlement of those state subjects who have gone to Pakistan between 1st March 1947 and 14th May 1954
He said in 1982, a bill was passed by state Assembly maintaining the citizenry of Kashmiris who migranted to Pakistan.
“Then governor Braj Kumar Nehru returns the Bill back and at same times made a reference to President of India for sending the matter to Supreme Court to decide whether citizenry powers can be given to those Kashmiris who have migrated to Pakistan. The assembly again passes bill, leaving no option for the governor to give assent to it. It comes up before the Supreme Court which decided that since the matter has settled by assembly, it dismisses it,” he said.
However, Bhim Singh of JKPNPP has challenged it again and it is presently pending disposal before the Supreme Court and stands stayed it, he said.
The third issue identified by Qayoom is the proposed Resettlement of Kashmiri Pandit community in certain areas in South, Central and North Kashmir with the facilities of Medical Colleges and Engineering Colleges etc.
“Amnesty International has given a statement about Pandit community and has virtually seconded the stand by government of India. It has also put blame on armed forces for migration of Pandits which is against our belief that it was done at the behest of Jagmohan, the then governor of the state,” Qayoom said.
He also referred to a statement by Syed Ali Geelani, chairman of his faction of Hurriyat Conference, in which the octogenarian claimed that that based on his information, there is process to create three separate fortified zones for KPs in all three regions.
“We are not against return of (KPs) but they should put up where they were previous residing alongside their Muslim brethren. They are state subjects and nobody can prevent them from returning back but not in this manner.”
The other issues facing the ongoing struggle, he said, is a writ petition filed in Jammu wing of the High Court wherein the question has been raised is as to whether it is legally permissible to make classification between offspring of Male Non-Permanent Residents of the State of J&K viz-a-viz female permanent residents of J&Kthe settlement of Refugees who have migrated from West Pakistan and are presently in Jammu.