THE BJP’s revival of its cry for the abrogation of Article 370 of the constitution of India invites attention to three aspects which it overlooks. By its very terms, it cannot be abrogated; in breach of its terms, it has been reduced to a husk; and it has an international dimension as well.

Article 370 is the only provision of the constitution which was negotiated between Jammu & Kashmir and the Union of India. India’s constituent assembly adopted the accord as Article 370 on Oct 17, 1949.

It exempted Kashmir from the provisions of the constitution of India applicable to all other princely states. It could have its own constitution framed by its own constituent assembly. Parliament’s powers over it were restricted to three subjects — defence, foreign affairs and communications and such provisions for a federal framework as were comprised in the Instrument of Accession.

Article 370 wasn’t designed to rule out a plebiscite.

If the union’s powers were to be increased or some more provisions of the constitution were to be extended, the “concurrence” of the Kashmir government was required in the interim till Kashmir’s constituent assembly was “convened”, when that concurrence “shall be placed before such assembly for such decision as it may take thereon”. Kashmir’s constituent assembly was convened on Oct 31, 1951 and was dissolved on Nov 17, 1956. The Kashmir government lost its power to accord any concurrence to the centre’s amassment of power by orders made by the president under Article 370.

Yet, from 1954 to 1994, 47 orders were made by the president unconstitutionally extending to Kashmir 94 of the 97 entries in the Union list and 260 of the 395 articles of India’s constitution. If on Nov 27, 1963 Nehru boasted that Article 370 “has been eroded”, Union home minister G.L. Nanda said on Dec 4, 1964 that it served as a useful “tunnel” for extending India’s constitution to Kashmir.

What, then is left to abrogate? But abrogation is constitutionally impossible. Kashmir’s constituent assembly no longer exists to recommend it. Besides, Article 1 of India’s constitution applies to Kashmir only by virtue of Article 370 (a). Abrogate it and the link snaps.

It is the international aspect which has been completely overlooked in the entire discussion. Article 370 was adopted in 1949 when India had publicly affirmed its commitment to hold a plebiscite in Kashmir. It discarded that commitment. But Article 370 which embodies it survives still and it cannot be abrogated. Union minister N. Gopalaswamy Iyanger told India’s constituent assembly on Oct 17, 1949: “We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can only take place when the Kashmir problem is satisfactorily settled. Again the government of India have committed themselves to the position that an opportunity would be given to the people [of Kashmir] to decide for themselves whether they will remain with the republic or wish to go out of it.”

Thus, Article 370 was not designed to rule out a plebiscite. A letter by Sir Girja Shankar Bajpai, secretary general of the external affairs ministry, dated Nov 21 1949 said that participation of Kashmiris in India’s constituent assembly was “not intended to, and does not, in fact, alter the government of India’s determination to abide, in the matter of accession, by the freely declared will of the people of Jammu and Kashmir.

“Should that will be against [Jammu and Kashmir] continuing to be part of India, if and when it comes to be expressed in a constitutional way under conditions of peace and impartiality, the representation of [Jammu and Kashmir] in the Indian parliament would automatically cease and the provisions of the constitution of India that govern the relations of … Jammu and Kashmir with the Union of India will also cease to operate.”

“Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

But an order of 1954 adds an overriding proviso to Article 253: “Provided that after the commencement of the constitution (application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of … Jammu and Kashmir shall be made by the government of India without the consent of the government of [the former].” Thus Kashmir’s future is yet to be decided even according to India’s constitution.

Kashmir’s constituent assembly is gone. So is the idea of a plebiscite. But this proviso exists still, to remind us of the pending dispute. Article 370 can be dealt with properly only if India and Pakistan settle the Kashmir dispute with due respect for the will of the people.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, June 14th, 2014