Historical and legal dissection of Article 370 and Article 35A

First things first, calling this a book is a long stretch by any standard, as I took me not more than 20 minutes to complete it; so a long essay it is. Hence, hereinafter in this review, ‘essay' may be construed as ‘book'.

The essay does a very superfluous reading of the history of J&K and you hardly get anything of substance. Many things have been portrayed rather conversely to what actually happened. A prime example is the role of Maharaja Hari Singh, who, for some reason, is the most misunderstood man in this whole saga.

The author mentions that the Maharaja was torn between joining Bharat & Pakistan. This is not true! Maha. Hari Singh pretty much wanted to merge with Bharat long before the Paki attack took place. It was Nehru who declined his proposal saying that he was not the true representative of the populace of J&K but Sh. Abdullah was. Later, Viceroy Mountbatten personally travelled to J&K to convince him to join Pakistan! The British never wanted J&K to be merged with Bharat due to its geopolitical importance to counter the erstwhile Soviet Union. Both of these moves - by Nehru & Mountbatten - made Hari Singh suspicious, and he because of that he held back as Aug 15 neared. The author's tilt here is most probably because of over-reliance on the work of Mr. AJ Noorani, who is probably the last man one should read if one were looking for authentic history of J&K. I would suggest the author to read the biography of Maharaja Hari Singh written by Dr. Kuldeep Chandra Agnihotri.

Another contentious topic here is the question: “Why Article 370 had to be introduced in the OG Constitution?” Here we come across another much celebrated myth that it was supposedly there because “J&K was promised autonomy and a special status” through negotiations. This, again, is not true at all!

Reality is this: The state of J&K singed exactly the same Instrument of Accession as any other princely state (which the author duly mentions), which is full & final and there's no going back as far as the accession is concerned. Art 306 (later numbered 370) had to be introduced because there was an extraordinary situation created by the invasion of Pakistan and the situation further aggrieved when Nehru in his “wisdom” (rolls eyes) decided to take it to the UN, that too under Charter VI (‘Pacific Settlement of Disputes) instead of Charter VII (‘Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression'). This meant that we ourselves had granted our legally acceded land as “disputed”, and left our sovereignty to the outcome of a UN Resolution (which was never acted upon by Pakistan, but that's an entirely different discussion). Clearly, these chain of events tied our hands. Since J&K was now ‘disputed', there was no way we could have applied our federal Constitution there, so Art 306 (370) was introduced at the last moment on 17 Oct 1949 (last meeting of Constituent Assembly) as a ‘Temporary' & ‘Transient' provision, till the matter is resolved as per the UN resolution. One should read the transcript of Constituent Assembly debate of that day to understand this.

This shows that J&K was treated in a peculiar manner then, not because the promise of some especial autonomy was made to the Maharaja, Abdullah or anyone; but due to the sole reason of the internationalisation of the matter. Since, Pakistan has acted against the UN resolution, that resolution stands invalidated and the ‘dispute' is no longer there. As the dispute is no longer there, there was no need of Art. 370 and a separate constitution, flag etc. for J&K. Any claim that J&K has, or ever had, some unique place among the Indian states is absurd and has no truth in it. All that the Modi govt. did, is to bring parity among the states, and that is how it was always supposed to be. What was done on Aug 5, 2019, should have been done decades ago.

The last part that deals with the (il)legality of Art. 35(A) is good. The author, however, does not mention the legal process through which Art. 370 & 35(A) were neutralised.