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India administered Kashmir and the Article 370 - Select articles

3 June 2014

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Daily News and Analysis - 2 June 2014

Article 370: History of broken promises

[by] Iftikhar Gilani

Article 370 is a pact that the Congress, in league with Kashmir’s elite, has routinely violated

The Union minister Jitendra Singh recently floated a trial balloon on scrapping Article 370. Predictably, such a comment sparked a heated debate in political circles. But here’s the hard truth: The acrimonious relations between Srinagar and New Delhi — going beyond this controversial Article — are historically beset with broken promises and lack of trust, which often manifest in violent outbursts.

The Article 370 was negotiated as a temporary provision because until the 1960s, the Government of India’s stated policy was to conduct a plebiscite to determine the future of Jammu and Kashmir. Accordingly, a Government of India sponsored White Paper on Jammu and Kashmir in 1948, authored by Sardar Vallabhbhai Patel, recorded: “In accepting the accession, the Government of India made it clear that they would regard it as purely provisional until such time as the will of the people of the State could be ascertained.” The Constituent Assembly debates show both Patel and Syama Prasad Mookerjee had fully approved Article 370, which accords special status to Jammu and Kashmir.

Jammu and Kashmir is the only state in the Union of India, which negotiated the terms of its membership with the Union. The ruler of Jammu and Kashmir had acceded to India by an Instrument of Accession on October 26, 1947, in respect of only three subjects — defence, foreign affairs and communications. A schedule listed precisely 16 topics under these heads plus four others (elections to Union legislature and the like). Clause 5 said that the Instrument could not be altered without the state’s consent. Therefore, 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. While all the provisions of Indian Constitution were debated in the Constituent Assembly after deliberations in its Drafting Committee, Article 370 was discussed for five months by Nehru and his colleagues including Sheikh Abdullah, then Prime Minister of J&K.

In league with Srinagar’s ruling elite, successive Congress governments have violated this solemn compact, creating mistrust and uncertainty in Kashmir. Legal luminary AG Noorani in his book Article 370: A Constitutional History of Jammu and Kashmir documents how the Article was tampered to the extent that only husk has been left. Noorani’s book mentions the first “unfortunate breach” by N Gopalaswamy Ayyangar on October 16, 1949, in unilaterally altering the draft agreed to with Sheikh Abdullah and Mirza Afzal Beg. If the original agreed-upon draft had been approved, the ouster of Sheikh Abdullah later in 1953 would have been impossible.

Jammu and Kashmir has been relegated to a status inferior even to other states. Consider this: Parliament had to amend the Constitution four times to extend the President’s Rule imposed in Punjab. In the case of Jammu and Kashmir, the same was accomplished, from 1990 to 1996, by mere executive orders under Article 370. The Article was also freely used not only to amend the Constitution of India but also of the state. On July 23, 1975, an order was made debarring the state legislature from amending the state Constitution on matters in respect of the governor, the election commission and even “the composition” of the Upper House, the Legislative Council.
Another case further illustrates the capacity for abuse. On July 30, 1986, the President made an order under Article 370, extending to Kashmir Article 249 of the Constitution in order to empower Parliament to legislate even on a matter in the state list on the strength of a Rajya Sabha resolution. Ironically, concurrence to this was given by the Centre’s own appointee, governor Jagmohan. Former law secretary of J&K, GA Lone described how the “manipulation” was done “in a single day” against his advice and “in the absence of a Council of Ministers”.
Article 370 cannot be abrogated or amended by taking recourse to the amending provisions of the Constitution. For, in relation to Kashmir, Article 368 has a proviso which says that no constitutional amendment “shall have effect in relation to the state of Jammu and Kashmir” unless applied by Order of the President, that requires the concurrence of the state government and ratification by its Constituent Assembly. With the Assembly’s dispersal on November 17, 1956, after adopting the Constitution of Jammu and Kashmir, there is no authority left to recommend its abrogation.
When May 1996 Parliamentary elections in the state — the first since 1989 — were marred by the boycott call by separatists and coercive voting, the central government offered a bait to the lone mainstream party — the National Conference — to participate in the assembly polls. The NC leader Dr Farooq Abdullah, cooling his heels in London, was adamant in seeking Constitutional changes before committing to take the plunge into the electoral process. His hesitation stemmed from the famous “sky is the limit” observation of Prime Minister PV Narasimha Rao from Burkina Faso to underline that any kind of future arrangement for Kashmir could be discussed.

A year earlier in 1994, Dr Abdullah was part of a delegation to Geneva to persuade Iran to drop the Organisation of Islamic Countries (OIC) resolution at the UN Commission on Human Rights (UNCHR), later rechristened as Human Rights Council, condemning India for human rights violations in Kashmir. The resolution, with UNCHR approval, was to be referred to the UN Security Council for initiating economic sanctions and other punitive measures against India.

Privately, Dr Abdullah says, he had been offered restoration of Constitutional arrangement that existed prior to 1953. A euphemism for greater autonomy in lieu of saving India from possible disgrace at a time when the country had mortgaged its gold reserves. Dr Abdullah was however, persuaded by Rao’s successor Deve Gowda to participate in the October 1996 assembly elections on the assurance that he was free to pursue legislative process to seek changes in the Constitutional relationship between Srinagar and New Delhi.
Much water has flowed since then. The argument that Article 370 constitutes a psychological barrier between the governing elite in Delhi and the Kashmiri youths is a false one. The real problem lies in Kashmir’s history of rigged elections and foisting unpopular Chief Ministers on the people. Delhi needs to address are these two areas of anxiety and suspicion — and not Article 370.

The author is New Delhi bureau chief of dna.

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Mail Today - 2 June 2014

Legal illiteracy runs rampant on Article 370

by Rajeev Dhavan

Jawaharlal Nehru with Sheikh Abdullah after the signing of the constitution on January 24, 1950

India’s federalism is a–symmetrical.

Some states are more favourably treated than others.

This is self evident from provisions in Article 370 (JK), 371A (Nagaland), 371B (Assam), 371C (Manipur) 371D,E and J (AP), 371F (Sikkim), 371G (Mizoram), 371I(Goa).

We also have special provisions for the North East in the Constitution’s Sixth Schedule where a strong independent local democracy exists.

Other Tribal areas in other states are protected under the Fifth Schedule.

All these provisions are sacral. We dare not change them. Many Sikkimese now feel that they got a raw deal when Sikkim joined India in 1975. Some want Article 371E amended.

Others want the accession repealed. When they protest they are arrested for sedition.

Which was mercifully set aside by the Supreme Court. Removing Article 370, or even tinkering with it, is a breach of faith, and offends both federalism and secularism which are part of the basic structure of our Constitutions.

I also feel that technically such proposals are seditious to the unity and integrity of India.

But I accept that free speech should prevail as a prime public interest.
Constitution

Let us consider Article 370. It is called a temporary provision.

But the reason for this is that while India’s Constitution has been adopted in 1950, the JK Constitution was still to be completed.

The temporary provisions were to take into account and forge a ling to the JK Constitution.

JK had its own Continent Assembly which is specifically mentioned in the Indian Constitution (Article 370 (2)(3)).

Article 370 grew out of an instrument of Accession of 1948 which the Constitution accepts subsilento.

Most importantly, JK got its own JK Constitution of 1957 with the intention of autonomising J&K’s governance with minimal interference by the Union except in certain specific areas.

India’s Parliament has no right to abrogate J&K’s Constitution which was pursuant to the accession of the State to India on 26 October 1947.

On 6 October 1956, the people of the State of Jammu and Kashmir “gave unto themselves” a Constitution.

This accepts that JK is a part of India and that the territory of JK includes Azad Kashmir. What more fidelity can you expect from Article 370.

Article 148-150 of the JK Constitution explain why it was necessary to have transitional provisions to safeguard JK democracy.

But most importantly, Article 147 of the JK Constitution specifically states that it is the JK Assembly – and the JK Assembly alone – that can amend the JK Constitution.

But even in this clause to amend the JK Constitution, clear provisions indicate that the JK Constitution is wedded to the Constitution of India.

That cannot be changed. Once again, what more do we want?
Excesses

Given the provisions of Article 370, the Indian Government has exceeded the provisions of Article 370.

Unlike other accessions to India, the Instrument of Accession to India ensured that India would look after “foreign affairs, defence and communication”.

The President’s power to change any arrangement in this regard was with the concurrence of the Constituent Assembly. But from 1954 the Union had exceeded its brief.

This is why Sheikh Abdullah told Mrs. Gandhi when he was released in 1975 that he would become Chief Minister “only on the basis of the position as it existed on 8 August 1953”.

In 1963, Pandit Jawaharlal Nehru spoke of a “gradual erosion of the autonomy of Kashmir”, slurring over the excesses of Indian governance, whereby the government of India slowly started to appropriate greater powers to itself than was permissible.
Flashback

On 26 June 2000, the State’s Autonomy Committee wanted to go back to 1953.

The BJP Government was in power and lost no time in stating that the ‘clock’ could not be turned back. But, the BJP did not fulfill its mandate to abolish Article 370.

Why? Its Allies? Kargil? Or the realisation that Kashmir’s distinct status was both pragmatic and principled?

In 2006, the Congress had three Round Table Conferences with five working Groups who submitted reports in 2007 and 2009.

Working Group V (chaired by Justice Saghir Ahmad) hoped that more clarity would emerge. In October 2010, Sitaram Yetchury of the CPI(M) saw force in a return to 1953. The less that is said of the recent interlocutors appointed, the better.

Meanwhile, the Supreme Court made it clear in Prem Nath’s case (1959) that within the board parameters of Accession, it was the Constituent Assembly that would finally determine the relationship between the Government of the Union and J.K. to restrict future use of Article 370 by the Union within the limits prescribed.

When the Supreme Court changed its view in 1968 and 1972 to sanction extended use of Article 370, it did not even consider the earlier authoritative ruling of 1959 though Justice Hidayatullah was party to both the 1959 and 1968 judgments.

On 23 July 75, the President made an order that the J.K. Legislature could not vary its own J.K. Constitution as regards the governor and elections without the President’s consent.

This may have been salutary as far as elections were concerned, however the J.K.’s legislature’s power to amend its own Constitution could not be curtailed as long as the Instrument of Accession was not infringed.

I have not even mentioned the civil war that would be started if Article 370 is amended or abolished. A.G. Noorani is right when he says there is too much “legal illiteracy” about Article 370.

The writer is a Supreme Court lawyer

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Outlook Magazine

‘Hindu Sena’ activists protest against J&K leaders, May 29, 2014
article 370 contoversy

How To Burn The Bridge

First week in office and Narendra Modi’s office rocks the boat with Article 370 blooper. Is the Sangh set to raise the Kashmir bogey?

[by] Pranay Sharma

370

It’s the Article in the Constitution that forms the sole bridge between Jammu and Kashmir and the Indian Union. Some facts:

J&K is the only state that negotiated its membership with the Indian Union
It was discussed for five months—from May to October 1949—between Jawaharlal Nehru and his aides and Sheikh Abdullah and his aides
The draft agreed between the state and the Union was approved in October 1949 and adopted in the Constitution as Article 370
The provision of Article 370 (1-C) stipulates that Article 1 of the Constitution—that lists the states of the Indian Union—applies to J&K through Article 370. Which means if Article 370 is removed, J&K becomes independent.

***

Kashmir And Article 370

From 1947 on, milestones of the dispute

1947 October The J&K maharaja accedes to the Indian Union in the wake of raids by armed tribesmen from Pakistan, seeks Indian army’s help
1948 March The maharaja appoints an interim government in the state with Sheikh Abdullah as prime minister
1948-49 Abdullah and three colleagues join the Indian Constituent Assembly; negotiate J&K’s entry into the Indian Union and Article 370 becomes part of Indian Constitution
1950 January Indian Constituent Assembly adopts the Indian Constitution
1950 April Syama Prasad Mookerji resigns from Nehru’s cabinet, launches the Jana Sangh
1951 November Constituent Assembly of J&K meet for the first time
1952 July ‘Delhi Agreement’ signed between Abdullah and Nehru, confining Union’s authority to only three subjects, leaving the rest with the state govt and abolishing monarchy in J&K.
1953 May Syama Prasad Mookerji, arrested while leading agitation in J&K against Article 370, dies a month later while in police custody
1956 November J&K Constituent Assembly wounds up
1961 April Hari Singh, the last maharaja of J&K, dies in Bombay

***

This was perhaps not how Narendra Modi expected the week’s events to pan out. His swearing-in ceremony at the Rashtrapati Bhavan forecourt on May 26 afternoon had gotten him off to a flying start. Among a host of dignitaries, the presence of leaders of the SAARC countries, particularly Pakistan’s Prime Minister Nawaz Sharif, gave him the opportunity to send out a strong, assuring signal to the outside world. To wit, the ascendance of a Hindu-right leader to power in Delhi was not a threat to the nuclearised South Asian region. On the contrary, the presence of the regional leaders reaffirmed India’s desire to re-engage with its immediate neighbours. The next day’s meeting that Modi had with Sharif and other South Asian leaders at Hyderabad House only strengthened this view further.

However, the mood soon changed afterwards with a remark by a junior minister in the PMO, suggesting that a debate will soon start on Article 370 of the Constitution to determine the ‘special status’ of Jammu and Kashmir. In less than 48 hours of its swearing- in ceremony, the new government was faced with its first political controve­rsy. “We are speaking to the stakeholders. Article 370 has done more harm than good,” Jitender Singh Rana, a first-time Lok Sabha MP from Jammu’s Udhampur, told a TV channel.

Rana now is known in his constituency as a “high drama artist” and app­arently even has a certificate from All India Radio to prove it. A diabetologist of repute, he rose to prominence during the Amarnath land row as the spo­kesman for the Shri Amarnath Yatra Sangharsh Samiti—which was spearh­ea­ding the counter-agitation against the Valley’s opposition to transfer of land to it. He became a household name in the region then with regular appearances on TV channels, even as the agitation continued outside with curfews lasting two months. Several thousand people, including women and children, filled the jails, besides fighting bloody battles with the police on the roads and bylanes.

The abrogation of Article 370 has been a long-standing demand of the BJP and the Sangh parivar. An agitation for its removal began almost from the time the Nehru-Abdullah agreement of 1952 detailed the special powers and status of the state. Syama Prasad Mookerji, who resigned from Nehru’s cabinet and launched the Jana Sangh, was one of the champions of the agitation, and his arrest while making an attempt to enter the state without a permit and subsequent death in the custody of the J&K police has made this a highly emotive issue for the Sangh parivar.

What Rana said, therefore, was not very different from the line in the election manifesto or what Narendra Modi himself had said while campaigning in Jammu. But it is the timing of his remark—especially at a time when the new government was busy highlighting its other, softer facets to the world—that has raised questions both within and outside the government. Led by Jammu and Kashmir CM Omar Abdullah, who wanted to know that since he hadn’t been consulted, the government should clarify who the ‘stakeholders’ were it was discussing the issue with, a host of Kashmiri leaders strongly reacted to the junior minister’s comments, some even arguing that since it came from someone in the PM’s office, it must have had Modi’s blessings.

Under the circumstances, however, this looked highly unlikely as the new prime minister could not be seen opening a new front domestically, especially one as sensitive as Kashmir, even as he was trying to project himself as a mature leader on the world stage willing to talk peace with Pakistan and other neighb­ours of India. Visibly embarrassed at the developm­ent, the PM’s close aides and BJP and RSS leaders tried to play down the issue. But it did little to contain the damage. “This is pure ignorance displayed by a national party on what forms the ‘constitutional link’, a bridge, between J&K state and the rest of the country,” says ex-National Conference MP Mehboob Baig.

Article 370 is perhaps the least understood and also most widely misread provision of the Indian constitution. Every now and then, it has led to controversies and debates and needed explanation on the special circumstances of its inclusion in the Constitution and the need for it to be there.

No let-up Security forces set up another barricade in Srinagar. (Photograph by AFP From, Outlook 09 June 2014)

Hari Singh, the maharaja of J&K, acceded to the Indian Union in October 1947 when a full-scale war was upon the state in the wake of raids and pillage by tribesmen from Pakistan. He sought the Indian army’s help and agreed to join the Union. But it was the only former princely state that negotiated its accession to the Union. The Instrument of Accession document signed by the maharaja was also accompanied by a letter—which in legal terms is seen as a ‘collateral document’ and an ‘integral whole’ with the other document. And this was done only after Sheikh Abdullah, who was appointed by the maharaja as the prime minister of an interim government and three of his colleagues joined the Indian Constituent Assembly as members to negotiate the terms and conditions of J&K’s joining the Union. After five months of hectic parleys, and the personal intervention of Sardar Patel, the terms were agreed upon and they were made part of the Indian Constitution with the incorporation of Article 370. The separation of powers of the state and the Union was further formalised through an agreement between Jawaharlal Nehru and Sheikh Abdullah in 1952 and also endorsed by the constituent assembly of J&K.

Only three areas—defence, external affairs and communications—were designated as ones where the Union would have powers, while all others were left to the state. It was also agreed that neither side could unilaterally alter, amend or expand the powers. Any attempt by the President of India to bring about changes in the state to make other laws of the Union applicable in J&K had to have the concurrence of the state’s constituent assembly. The J&K constituent assembly from 1951 to 1956 debated and discussed all these provisions, and after incorporating them in the state constitution—the only state in India that had a separate constitution—it got dissolved.

There are two sets of interpretations to the legal and constitutional provisions of Article 370 and relations between J&K and the Indian Union. One clearly states that provision 1-C of the Article makes it explicit that Article 1 of the Indian Constitution that lists the states of India applies to Kashmir through Article 370. In other words, if Article 370 is removed or abrogated, J&K becomes independent of the Indian Union. Simply put, this is the only string that binds the two together.

It is also argued that since the constituent assembly of J&K no longer exists, there is no provision left for altering the terms and scope of the agreement between the two sides.

This view, though, has been questioned and tampered with by different governments in Delhi for years. In fact, during Indira Gandhi’s prime ministership, the Supreme Court held that since the constituent assembly of J&K is no longer there, the state legislature becomes its rightful heir and, therefore, expansion of the Union’s power can happen with the consent and concurrence of the state assembly.

But for the Sangh parivar, the opposition to special status for Kashmir and Article 370 come from another place altogether. As historian Christophe Jaffrelot says, “It is key for three rea­sons: ideologically this article contradicts their conception of the nation that is ethnic and unitary (Golwalkar opposed even the idea of federalism, saying it was responsible for ‘ang­­u­larities’ that had to be erased; Article 370 is much worse!). Emotionally, the fate of the Pandits shows that Hindus are sec­ond-class citizens in their own country and, historically, S.P. Mookerjee died in Kashmir in 1953 for the cause.”

So what is the future of Article 370 and are we likely to see a renewed controversy on the subject or will the new government be smart and mature enough to realise that scrapping this provision of the Indian Constitution can do more harm than good to both the BJP and the nation as a whole.

A word of caution came from Congress leader and son of the last Kashmir maharaja, Karan Singh. In a statement on Thursday, he said, “My appeal to all concerned is to kindly tone down the rhetoric and not let the minister’s statement plunge the new government almost immediately into a complex and difficult situation.” He added that “the whole question of Jammu & Kashmir has to be looked at in an integral fashion, including the international dimension, the constitutional position, the legal aspects as well as the political aspects. Such an integral review is overdue, but it has to be done in a cooperative rather than a confrontational manner”.

While these are wise words, it remains to be seen whether this sage advice will taken to heart by the different players on the stage now, particularly at a time when assembly elections in Jammu and Kashmir are due in a few months’ time.

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Outlook Magazine

Why Complicate A Tangled Issue?

There are demands for change, but anything drastic will only escalate tensions

[by] Radha Kumar

The Indian debate on Article 370 has been deeply flawed from the start, because it rests on a misperception. Article 370 is not a standalone provision of the Constitution. In fact, it merely codifies the Instrument of Accession under which the state of Jammu and Kashmir joined the Union of India. The instrument stipulated that the writ of the Indian government would be limited to defence, external affairs and communications (currency was added later).

In other words, if Article 370 is abrogated, then it will have to be replaced by a similar article. Otherwise, abrogation would require renegotiating the terms of accession, which may open up the issue of accession itself, and would certainly permit the introduction of new terms. Are the people of the state and India willing to reopen the accession issue and terms? Have their representatives considered what could be put in place instead, not to mention, ever discussed it?

In my view, any suggestion of repealing Article 370 opens a can of worms. However, this does not mean Article 370 cannot be amended. The Instrument of Accession allows amendments to its terms, provided they are agreed by the heirs/successors to the then maharaja, who would today comprise the elected government of the state. The same amendments would also have to be ratified by amendments or additions to the Constitution of Jammu & Kashmir, which would require not only the state government but also the state legislature to agree. It will be a long and complicated process.

Having said this, there are legitimate demands for change. First of all, there is a long-held grievance in the Valley that Article 370, as adopted finally, itself was an erosion of the 1952 Delhi Agreement and the essence of autonomy, and that many parts of Article 370 were later eroded to hollow out what was left of the state’s autonomy; distinguished constitutional experts concur, as do the state’s regional political parties. This sentiment has been further fed by human rights violations and the misuse of the Armed Forces Special Powers Act, both of which are seen as stemming from the powers of the central government.

At the same time, successive Jammu and Kashmir governments have used Article 370 to protect themselves from accountability. The state constitution is a piece of paper; the state legislature has passed few Acts of significance in the past two decades. Power is concentrated in the hands of a few.

Most of the demands for change, however, pertain to the state constitution and not to Article 370. Regional and/or district-level devolution, for example, is a demand that has been voiced for over 50 years; there are several state government-commissioned reports on it, but no action has been taken. Along with the issue of Article 370, devolution was also discussed in the prime minister’s working group on Centre-state relations and in our Interlocutors’ Report. Yet, the latter is still to be discussed by the state government or be tabled in Parliament, and the state government is yet to take a decision on the former. Even the panchayati raj institutions have not been empowered, at the cost of several panchs’ lives.

There is one demand—for Union Territory status for Ladakh and perhaps some districts of Jammu—that would indeed require a change in both Article 370 and the terms of accession. But any attempt to push it through would be seen in the Valley, some districts of Jammu and very likely in Kargil, as a deliberate attempt to divide the state. An already simmering set of communal tensions will be inflamed.

Ironically, the debate on abrogation of Article 370 comes at a time when Pakistan had inched closer to the Indian model. In 2009, the previous Pakistan government agreed to a package of reforms for Gilgit-Baltistan that gave the region some, though not all, of the powers that Jammu and Kashmir currently has under Article 370. In his speech at Kashmir University, Satinder Lambah, envoy of the former prime minister, described the framework for self-rule that had taken shape in his backchannel with Pakistani envoys; it was based on Article 370. During our interlocutors’ mission, civil society groups in Pakistani-held Jammu and Kashmir demanded similar rights to those offered under Article 370 to be given to Gilgit-Baltistan.

Why put all this at jeopardy for a demand that brings more complications than it takes away? Article 370 is a structure that has worked despite erosions and flaws. That it should adapt to changing times is a given, and one that might strike a chord in the people of the state.

(The writer is director of the Delhi Policy Group)

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Outlook Magazine - 9 June 2014

Open The Pandora’s Box At Your Own Peril

Any act to repeal Article 370 faces hurdles. It would also send the Valley down a warpath.

[by] Dileep Padgaonkar

The BJP’s manifesto for the 2014 general election has a separate section on Jammu & Kashmir. It contains five points. The first three points and the last one are unexceptionable, but the fourth one is hugely problematic. The fact that Jitender Singh, the minister of state in the Prime Minister’s Office, chose to highlight it is, to say the very least, intriguing.

The first three points are: the BJP will pursue an agenda of equal and rapid development in all the three regions in the state—Jammu, Kashmir and Ladakh; the return of the Kashmiri Pandits to the land of their ancestors with full dignity, security and assured livelihood will figure high on the party’s agenda; the party promises to address the long-pending problems and demands of refugees from Pakistan-occupied Kashmir. The fifth one is: the party will take all steps to provide good governance, better infrastructure, educational and job opportunities and healthcare, leading to a better quality of life in the Valley.

All of this is in consonance with much of what the group of interlocutors heard in the course of their mission in 2010-11. But it also heard other refrains that were more political in nature. These, however, differed from region to region. While Jammu and Ladakh favour closer integration with the rest of India, the focus in the Valley was on the mindless application of harsh laws, failure to observe due process in the case of jailed militants and unwillingness to bring the perpetrators of human rights violations to book. Again and again, the interlocutors were reminded about the appointment and dismissals of chief ministers in the past, about rigged elections, about New Delhi turning a blind eye to institutional corruption and, especially, about the ‘erosion’ of Article 370.

Facts are on the side of the Kashmiris of the Valley. At its genesis, Article 370 gave the Union government jurisdiction over three subjects—defence, foreign policy and communications. But this is what has come to pass over the decades: 94 of the 97 entries in the Union list and 26 of the 47 entries in the concurrent list were extended to J&K. So were 260 of the 395 Articles of the Indian Constitution. Subsequent presidential orders further ‘eroded’ the original substance of the Article.

The key question, however, is whether this ‘erosion’ has benefited the people of J&K. Opinions have differed sharply on this issue. Two committees—one set up by Sheikh Abdullah and another by his successor G.M. Shah—reached different, indeed opposite, conclusions. So did three rulings of the Supreme Court: two agreed that all was well, one said it wasn’t. This question was expected to be settled after the Indira Gandhi-Sheikh Abdullah accord of 1975. Nothing happened.

What about outright abrogation? This is where Jitender Singh’s initiative—subsequently ‘watered down’ by him and by Ravi Shankar Prasad, his cabinet colleague—takes a hard political and constitutional knock on the head. The MoS wants to engage with all stakeholders, particularly the youth of J&K, to persuade them that Article 370 is a ‘psychological barrier’ that must be dismantled to meet their aspirations. That persuasion must be directed to where it matters most: in the Valley. The sentiment there is that the country’s only Muslim-majority state must preserve what remains of its distinctive political and cultural identity and its territorial unity.

There are constitutional hurdles that the new government will also have to cross should it move to abrogate Article 370. A new constituent assembly will have to be formed to recommend the abrogation. (Given the majority of disaffected Kashmiri Muslims such an assembly will have, no such recommendation will be forthcoming.) Only then can the President of India issue a public notification to this effect. Parliament is well within its rights to amend this provision. But what if the Supreme Court rules that the special status accorded to J&K is a basic feature of the Constitution?

Jitender Singh’s initiative will open a Pandora’s box. It will give a fillip to secessionist forces in the Valley, increase Pakistan-supported terrorist activities and, no less serious, internationalise the Kashmir issue. And this at a time when Pakistan has begun to send signals that it is prepared to move away from its entrenched stand on this intractable problem.

So here is a word of caution to Jitender Singh. You are a medical doctor of repute. Don’t recommend amputation of our ‘atut ang’ if the homoeopathic doses mentioned in your party’s manifesto can cure the ills afflicting Jammu & Kashmir. That is the path of ‘insaniyat’ suggested by the tallest BJP leader, Atal Behari Vajpayee, at the height of his powers as prime minister.