IT is not surprising that on the eve of general elections, the Bharatiya Janata Party (BJP) should have revived its old demand for scrapping from the constitution of India Article 370 which was intended to guarantee a special status to Jammu & Kashmir. Its candidate for the office of prime minister, Narendra Modi, made this demand on Dec 1.

There are two intertwined aspects to this disruptive move, constitutional, and political. When Article 370 was adopted by the Constituent Assembly of India in 1949, Shyama Prasad Mukherjee, founder of the BJP’s ancestor, the Jan Sangh, was a member of the cabinet which endorsed the provision.

He did not object then, as Kashmir’s prime minister Sheikh Muhammad Abdullah reminded him in a letter in 1953: “This arrangement has not been arrived at now but as early as 1949 when you happened to be a part of the government”. He resigned from the government in 1950, over the Nehru-Liaquat agreement on the minorities and set up the Jan Sangh in 1951 under a deal with the Rashtriya Swayamsevak Sangh. He picked on Article 370 as a stick with which to beat prime minister Jawaharlal Nehru.

Partly under pressure from the Jan Sangh and elements in the Congress itself, Nehru began to whittle down Article 370. It embodies six special provisions for Kashmir. It exempted it from the provisions of the constitution of India providing for governance of states. Kashmir was to have its own constitution.

Parliament’s legislative power in Kashmir was restricted to defence, foreign affairs and communications. If more Union powers were to be acquired over Kashmir, the prior ‘concurrence’ of the government there was required. But this concurrence had to be ratified by Kashmir’s constituent assembly. It was an interim power.

Moreover, the president’s power to extend the Indian constitution to Jammu & Kashmir stopped at the point of the drafting of Kashmir’s constitution.

Article 370(3) empowers the president to make an order abrogating or amending it. But for this also “the recommendation” of the constituent assembly “shall be necessary before the president issues such a notification”. It simply cannot be abrogated or amended by recourse to the amending provisions of the constitution of India which apply to other states; namely, Article 368.

In relation to Jammu and Kashmir, Article 368 has a proviso which says that no constitutional amendment “shall have effect in relation to … Jammu and Kashmir” unless applied by order of the president under Article 370. That required the concurrence of the Kashmir government and also ratification by its constituent assembly.

Once Kashmir’s constituent assembly met on Oct 31 1951, the government there lost all authority to accord any concurrence to the Union. With the assembly’s dispersal on Nov 17, 1956, the ratificatory body vanished and thus ended the Indian government’s power to add to its powers.

Yet, 94 of the 97 entries in the Union List were extended to Kashmir unconstitutionally after its constituent assembly dispersed in 1956. Even its constitution was overridden by the centre’s orders. The head of state elected by the legislature in Kashmir was replaced by a governor nominated by the centre.

In 1964, Article 356 (imposition of direct central rule) was applied despite a provision in Kashmir’s constitution for governor’s rule. It all happened after Sheikh Abdullah’s dismissal from office as prime minister and his arrest on Aug 9, 1954.

Nehru told the Lok Sabha on Nov 27, 1963 that Article 370 “has been eroded. …There is no doubt that Kashmir is fully integrated … We feel that this process of gradual erosion of Article 370 is going on. … We should allow it to go on”.

A sinister twist to this process was revealed by the home minister G. L. Nanda in parliament in 1964. “It is Article 370 which provides for the progressive application of the provisions of the constitution to Jammu and Kashmir. … Article 370 is neither a wall nor a mountain, but it is a tunnel. It is through this tunnel that a good deal of traffic has already passed and more will.” It did.

Forty-seven orders were made under Article 370 with the ‘concurrence’ of the Jammu & Kashmir government installed by New Delhi through rigged elections. Even the constitution was thus amended.

The BJP is flogging a horse all but dead but Kashmiris are too busy with their internal feuds to make a concerted move for redress. This is true of the Unionists, the National Conference and the People’s Democratic Party.

The separatists are held hostage by Syed Ali Shah Geelani’s demagogic ‘all or nothing’ slogan. New Delhi looks on with ill-concealed satisfaction. Only an Indian-Pakistan accord on Kashmir can right the wrongs and restore to Kashmir the self-rule to which its people are justly entitled.

The writer is an author and lawyer based in Mumbai.