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Mainstream, VOL LVII No 42 New Delhi October 5, 2019

Repeal of Article 370 is Misleading

Saturday 5 October 2019, by P.B. Sawant

Dear Compatriots,

Hoping that by this time, the fever of the so-called victory over the alleged abrogation of Article 370, created by the Government of India, has subsided at least by some degrees, I venture to draw your attention to the other side of the picture which is truth and reality.

At the very outset let me make it clear that neither Pakistan nor any other country has any right to meddle in this matter. Pakistan has not even a moral right to do so, since it has forcibly occupied a sizeable part of the State of J&K. This is a matter strictly between the Kashmiris and the rest of Indians.

The J&K State was never a part of this country, before Maharaja Harisingh signed the Instrument of Accession on March 17, 1948, which gave this country a legal access to that State for the first time. This Instrument of Accession was conditional and was given a constitutional status by incorporating it with the conditions, in Article 370 of our Constitution, when the Constitution was in the making. What is more, sub-clause 3 of Article 370 makes it abundantly clear that the provisions of the said Article will not cease to be operative or modified without the previous recommendation of the Constituent Assembly of the J&K State. This process of amendment of Article 370 is special to the said Article, and hence prevails over Article 368 of the Constitution which is the general power of amendment of the Constitution. The non-obstante clause with which the Article begins also makes that clear. It should therefore be clear to all that when the present government and the Parliament purported to declare that the said Article shall not be operative, they did not follow the procedure laid down in Article 370. Hence, the said Article remains in our Constitution intact without any harm to it. The propaganda carried out by the government that the said Article has been repealed is therefore obviously misleading.

Much irresponsible comment is being made on the temporary status of Article 370, without realising that the Article is changeable, unlike other provisions of the Constitution, on the previous recommendation of the Constituent Assembly of J&K State, acted upon by the President of India.

Those who clamour for the abrogation of Article 370 unilaterally by this government, forget the elementary fact that this country got the legal right to enter the State only because of the conditional political pact of accession. If the Article is abrogated unilaterally, assuming the action is valid, the legal right of this country to remain in J&K will be jeopardised. It is unfortunate that this government for reasons best known to it, has indulged in the present misadventure which is bound to boomerang. We should realise that with all the leaders of the Kashmiris under house arrest, the communications closed, seething discontent of the people fermenting every hour, the people of Kashmir cannot be suppressed with force for long. Both history and common sense dictate against it.

There is still a scope for an amicable political settlement, by which the affection of the Kashmiris can be won. For this, however, our government has to shed its macho image and come out with realistic measures to win the confidence and trust of the Kashmiris.

To our brothers and sisters in Kashmir, we should appeal not to mistake the government for the people of this country. They should believe in our goodwill and fraternity for them, notwithstanding the damage done to it by the present misadventure of our government. Our Kashmiri friends should remember that their destiny lies with this country which has proved its democratic credentials, by and large. They will be safe within our fold. There is no other option for them. Complete independence without the protection of this country will invite forcible occupation by other countries as has already been experienced by them. A merger with Pakistan will land them under military dictator-ship from which the Pakistanis themselves have been suffering, from the inception.

We consider them as our integral part. Their life and culture are a precious jewel in the crown of our cosmopolitan culture. There are strong affinities between us, and we love and respect them as our brothers and sisters. They have nothing to fear or lose, and everything to gain being with us. Let bygones be bygones and let us start a new chapter in our relationship which should be permanent and ineffaceable.

Pune

5-9-2019 Justice P. B. Sawant (Retd).

(Courtesy: The Indian Express)

Justice P.B. Sawant, who was a judge of the Supreme Court, is a former Chairman of the Press Council of India.

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