Zee Group Chairman Subhash Chandra, an independent Rajya Sabha MP from Haryana, today said all parties, including the opposition Congress, are secretly in favor of the abrogation of Article 370, but political compulsions force them to adopt a different stance in public.
Delivering his maiden speech in the Rajya Sabha, the independent member from Haryana remembered an incident that happened 25 years ago during Pakistani general elections in 1994-95.
At the time, he said, Pakistani Prime Minister Benazir Bhutto had directed the state broadcaster to avoid giving coverage to her rival parties, including those led by Nawaz Sharif and Imran Khan.
“And people in Pakistan used to watch either PTV or Zee TV,” Chandra said. “So we sent a team from London and covered everyone equally.”
After the elections were over, he said, Chandra and his team were invited by the government as state guests.
During his stay, Chandra — the founder of India’s largest home-grown broadcasting company — attended a dinner hosted by an organization called the Judicial Committee.
“During the meeting, they said, if you end Article 370, you can easily get rid of your Kashmir problem,” he said.
“When I came back, I approached all my friends in political parties — at the time, I had more friends in the Congress than in the BJP — I asked them, why don’t you remove this Article?
“They said, it’s a political issue. It doesn’t suit us, so we don’t remove it.”
Subash Chandra also disputed the stand taken by many state politicians that Article 370 was part of the accession documents of Jammu & Kashmir with India.
“The accession happened in 1947 and this article was brought in 49,” he said.
However, the status of Article 370 remains a legal grey area to this day due to the failure by the Jammu & Kashmir constituent assembly to express its opinion on the applicability of the Indian constitution.
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.