‘JK people will have legitimate right to Plebiscite if Article 370 goes’
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| Muddassir Ali, Baig, the MP-elect from People’s Democratic Party |
Amid raging debate on BJP’s ‘intent’ to abrogate Article 370, eminent constitutional expert, Muzaffar Hussain Baig, says any move by New Delhi to scrap the Article would entitle people of J&K to the right to plebiscite as the revocation would reverse the situation to instrument of accession wherein wishes of people would have to be ascertained.
In an exclusive interview with Greater Kashmir’s senior correspondent Muddassir Ali, Baig, the MP-elect from People’s Democratic Party, talks about the origin of the Article 370, its permanent nature and the possible fallout of the BJP’s demand.
What is Article 370?
Article 370 is a constitutional link between Jammu and Kashmir and Union of India. It was introduced as a temporary provision in the Indian constitution till the Constituent Assembly of J&K forms its own constitution and decides whether the said Article should be amended, abrogated or removed. Under section 3 of Article 370, it was provided that the article can be removed or changed only on the recommendations of Constituent Assembly of J&K and that is why it was called a temporary provision. Since the Constituent Assembly on July 14, 1954 decided that the Article 370, which was temporary in nature, shall remain in force and therefore it became permanent feature of the Indian Constitution. It became un-amendable after the Constituent Assembly ceased to exist after 1957.
Tell us about the genesis of Article 370?
When British left India there were two parts of India– British empire of India and 562 princely states including J&K. These princely states were not part of British India. They had the right to decide their fate, whether to go with India or Pakistan. All Princely States acceded to India which was ultimately followed by their merger with India and hence they became part and parcel of India and there was no division of power between these states and Union of India. But J&K only acceded to India. Since there were UN resolutions calling for plebiscite in J&K, the constituent assembly decided till a decision was taken, a temporary constitutional provision was introduced to give a shape to the relationship between the state and Union of India. This provision came to be known as Article 370.
Suppose Article 370 is abrogated. What will happen?
The Parliament can do so only under the Article 368 but any amendment made under the said article will not apply to J&K without the consent of the State Government and no State Government can give such consent.
What is the connection between Article 370 and Article 1 of Indian Constitution?
Article 1 under which J&K is included as territory of India has been applied to State under Article 370. Therefore if Article 370 goes, Article 1 will automatically cease to apply to J&K.
But even if Article 1 is not made applicable to J&K, yet under section 3 of the State Constitution, J&K shall remain part of India and section 3 cannot be amended in terms of section 147 of the Constitution of J&K?
J&K Constitution was framed under the authority of the Article 370 and Instrument of Accession. If the Article 370 goes then the effect of section 3 of JK Constitution under which JK is part of India will also go. Now suppose this argument is countered by Union of India saying even if there is no section 3 of J&K constitution, the State is still part of India because of the Instrument of Accession. But in that case Union of India will face serious problems because governor general of India Lord Mountbatten while accepting Instrument of Accession pledged as soon as the situation after the raid from the Pakistan side (in 1947) becomes normal, people have the right to express their wishes, whether or not to accept the accession and in that case J&K people will have legitimate right for plebiscite.
BJP has been asking for a debate on whether Article 370 has benefited people of J&K or not. How will you respond to their suggestion?
This argument can be answered on two grounds. First the issue is whether Article 370 can be amended. Since it cannot be amended then the question of state’s development is irrelevant. Now if the Article 370 can be amended then the issue of development arises. But it is a false propaganda that Article 370 is a bottleneck to development in the State because under existing laws any industrialist or business house from India can set up their units in Kashmir. This became possible after Transfer of Property Act was amended during late Sheikh Abdullah’s rule to permit industrialists and businessmen to acquire land in JK for development.
People say Article 370 has witnessed erosion over the years. Is it so?
Not a single word has been altered in the Article 370 till date. Instead it has been used by the Government of India to extend laws passed by the Parliament to J&K. It has been one-side traffic all these years (from New Delhi to J&K). All amendments till and including 43rd were extended to the State and when Government of India made 44th amendment to Indian constitution abolishing right to property as a fundamental right, I, as the then advocate general of the state in 1986-87, gave opinion to the state government to oppose its extension to J&K. Late the State Government did not allow its extension to J&K. Also when the 44th amendment was made the Sarkaria Commission was at the same time tasked to review that States should be given more powers. I also based my opposition to the extension of the 44th amendment to the state on this basis.
