Jammu Kashmir – Fake narrative of A.G Noorani Vs Reality.
   22-Aug-2019



(Team Jammu Kashmir Now)

Old habits die hard and this is undeniably true in case of Mr A. G. Noorani. Making personal opinions and personal communications from past, as a point of reference, rather than relying on constitution and legal documents, is his old habit. And when he refers to laws, he is extremely selective in refereeing to only that part of legal provisions which suit his argument, rather than the actual legal provision. He takes the liberty to interpret his references as he wants, using legal jargons and lots and lots of emotions. He has written many books and articles based on what people thought, the letters exchanged between dignitaries and politicians. And again, he has done the same mumbo jumbo of what Nehru thought, whatever he wrote, what Sheikh said, partial quoting of laws in his article “Murder of Insaniyat and India’s solemn commitment to Kashmir”.( Published in left oriented portal “ The Wire dated 13Th August, 2019)



 
 

First and foremost, the name of the state is Jammu Kashmir and not only ‘Kashmir’, as always referred by Mr Noorani. Secondly, India did not make any special commitment to Kashmir. Just like 565 Princely States, the Riyasat of Jammu Kashmir also integrated with India. If there were deceitful hinderances and legal confusions with regard to J&K those were created by Sheikh Abdullah, who dreamed of creating a Switzerland like country out of J&K. It is unfortunate that Nehru did not foresee it, and when he realized it, he got Sheikh arrested.

It is astounding that while writing anything on J&K Mr Noorani does not address the above- mentioned issues. Instead, this man has written articles in Pakistan’s newspaper Dawn, on the issue of Kashmir, his tone, expression and language are that of a Pakistani, rather than of an Indian. He has spent his entire life in India, practiced law in Indian courts but he sings the tunes of separatists and that of Pakistan. Those, who have killed hundreds of innocent civilians, both Hindus and Muslims, in Jammu Kashmir, are not Terrorists but Militants for Noorani, the champion of human rights of Kasmiris, (Jammu and Laddakh don’t exist in his understanding of J&K as a state).

Let us take a look at the game of bluffs and false narrative of Mr Noorani.

Noorani’s Selective quote of Nehru speech“And I say with all respect to our constitution that it just does not matter what your constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion – presuming of course, that the people of Kashmir do not want it. Are we going to coerce and compel them and thereby justify the very charges that are brought by some misguided people outside this country against us?

“Do not think you are dealing with a part of Uttar Pradesh, Bihar or Gujarat. You are dealing with an area, historically and geographically and in all manner of things, with a certain background. If we bring our local ideas and local prejudices everywhere, we will never consolidate. We have to be men of vision and there has to be a broadminded acceptance of facts in order to integrate really. And real integration comes of the mind and the heart and not of some clause which you may impose on other people.”

1) Jawaharlal Nehru in the Lok Sabha on June 26, 1952

Reality - In the same speech Nehru said J&K is integral part of India……, which Mr Noorani, conveniently forgot to mention here. Nehru said “….the accession (of Kashmir) is complete, it is not partial. And when we said that the people of Kashmir will decide, that did not limit in any way the accession…, …So Kashmir, obviously, is a constituent unit of the federation of the Union of India, …….But, nevertheless, it is a full constituent unit of India.” Jawaharlal Nehru in the Lok Sabha on June 26, 1952.

 

 

2) A.G Noorani -The president’s order under Article 370 made on August 5, 2019, the Jammu and Kashmir Reorganisation Bill and the two resolutions passed this week by parliament were conceived in malice and executed in deceit. They reduce Kashmir to India’s colony.

Reality- Calling Kashmir India’s colony is rather outrageous statement. The constitutional solution to an unconstitutional interpretation of Article 370 is called malice by Mr Noorai, which is really unfortunate. And mind you he is accusing none other than the President of India, of malice and deceit!!

 

 

03) A.G Noorani -Have you ever heard of a state robbing its regions of autonomy because they have suffered terrorist attacks?

Reality - To begin with the region has not been robbed of any autonomy, because it did not have any autonomy? What exactly is meant by ‘region’s autonomy’? And terrorismflourished because the separatist leaders and politicians were consistently poisoning the minds of people of J&K and were more like patrons of the terrorists.

 

 

04) A.G Noorani -But, of course, this is a sham. The nearly 40-page Bill must have taken weeks to prepare. It scraps the constitution of the state of Jammu and Kashmir adopted by its elected constituent assembly and imposes on it constitutional provisions on which the views of the state’s assembly were not sought. 

Reality- Mr Noorani has made this blatant statement, but the fact is that four members, including Sheikh Abdullah, were member of Constituent Assembly of India, representing the state of J&K.

 

 

05) A.G Noorani -Article 370 was abused to scrap the J&K constitution by a law made by India’s parliament.

Reality - There is no abuse of Article 370, the amendment is exactly as per the provisions of Article 370 and this amendment is approved by the Parliament.

 

 
6) Trifurcation of J&K is an old RSS agenda 
 

A.G Noorani -The BJP seeks to fulfill its old demands – repeal of Article 370, a Uniform Civil Code and Ayodhya. The last, through the courts; for the second, half was by legislation; and the first through Parliament. Nehru had foreseen the trouble we are now in. On January 1, 1952, he said in a speech at Kolkata:

“There can be no greater vindication than this of our secular policies, our constitution, that we have drawn the people of Kashmir towards us. But just imagine what would have happened in Kashmir if the Jan Sangh or any other communal party had been at the helm of affairs. The people of Kashmir say that they are fed up with this communalism. Why should they live in a country where the Jan Sangh and the Rashtriya Swayamsevak Sangh are constantly beleaguering them? They will go elsewhere and they will not stay with us.’’ (Selected Works of Jawaharlal Nehru: Vol. 17, p.78)

 

Reality- Nehru made a statement like ‘They will go elsewhere and they will not stay with us, as if the Kashmir people were doing a favour by being with India. The fact of the matter is that the people of Jammu Kashmir Riyasat/ Princely State,had no option to choose. The Princes weregiven the choice to determine their relations with the two dominions and accede to either ofthem or arrive at such arrangements with them as they defined feasible. It has been notedabove that the British refused to recognize the States as separate dominions and informedthem that they would not be in a position to carry on any further obligations which theParamountcy underlined. (M K Teng, Kashmir- Article 370, Published by Anmol Publications, New Delhi, pp- 22). Thus the princely states were given the option to join either the dominion of India or Pakistan, for which they had to consider the geographical contiguity and a Department of States was created in both the dominions of India and Pakistan to facilitate the Princely States joining one of the two, (White paper on Indian States, 1950). The accession to either dominion was to be formalized by signing the instrument of accession. The decision to join either of the dominion was to be taken by the sovereign ruler of the princely state independently and there was no time frame to sign the instrument of accession, so the rulers were free to join either of the dominion even post 15th August 1947.Under Section 6 of Govt of India Act 1935 and India Independence Act 1947, there were two conditions of accession of the Princely States to either the dominion of India or Pakistan, a- Geographical contiguity with the dominion to which Princely State choses to accede to, b- Will of the Ruler of the Princely State. Thus, acceding either with the dominion of India or Pakistan was the prerogative of the ruler of the Princely States, which was to be finalized by signing the Instrument of Accession in favour of that dominion. Once the Instrument of Accession signed by the ruler, that decision was final. People had no right to secede from the dominion.


 

7) A.G Noorani -Why should they live in a country where the Jan Sangh and the Rashtriya Swayamsevak Sangh are constantly beleaguering them?’-

 
Reality - Isn’t it contradictory that on one hand Nehru is making the above statement, but on the other hand India had a population of 34 million Muslims, (Census 1951) willingly living in the alleged communal Jansangh and RSS festered India, a Hindu majority India, without any fear of losing their religious or cultural identity? How can the opinion of the Muslims in India be different than the opinion of Muslims from Kashmir, as far as Communalism is concerned? And it is noteworthy, that Maharaja Hari Singh had integrated the entire J&K with India, but Nehru all through is concerned about the well-being of Kashmiri Muslims. He has not spoken anything about the Hindus from Jammu or Buddhists from Laddakh. Why this special soft corner for Muslims from Kashmir, because the alleged Sher-e-Kashmir had no followers in Jammu, Laddakh, or for that matter even the Muslims from Mirpur, Muzafarabad, Gilgit, Baltistan did not acknowledge Sheikh Abdullah as their leader. Sheikh wanted to carve out a niche for himself and fulfill his political agenda, which would be accomplished by separating Kashmir from rest of India. Sheikh kept harping the same tune of protecting Kashmiriyat. Well Kashmiri identity, actually, included both Hindus and Muslims. Considering this issue of Kashmiriyat, was religion neutral, why should Nehru be anxious of the Jansangh or RSS? So, now one can understand how relevant were the concerns of Nehru and how valid were his arguments! And how relevant is it on part of a senior advocate of Supreme Court of India to use these quotes to spew venom against RSS and Jana Sangh?


There is one more area where ‘Secular’ Nehru and ‘Secular’ Sheikh were on the same page, that was completely prejudicial and unjust distribution of seats in the Legislative Assembly of J&K in 1951. Again, Mr Noorani appears to be oblivious to these historical mistakes and discriminations against Hindus of J&K.
According to the Administrative Report of the Government of Maharaja of J&K, total population of the state on the basis of 1941 census figures- 16-10-1940 to 15-10- 1941 was 40,21,616. The population of Jammu Province was 20,01,557, Kashmir was 17,28,686 and that of Gilgit / frontier Illakas of Skardu, Kargil & Ladakh was 3,11,915. After partition and attack by Pakistan lakhs of people were displaced, a large number of displaced took refuge in Jammu, some Muslims left India and went to Pakistan. Considering these changes, the census of 1941 did not have much relevance and a new census was inevitable. However, Shaikh Abdullah and his interim govt, for reasons best known to them, decided that new census was not necessary. On 1st May 1951, Yuvraj Karan Singh, the Regent and the Head of the State, by order number 22 declared that Electoral Districts, with single member representing a population of 40,000 in each district, will be formed to create the Constituent Assembly of J&K. Although, the basis for calculating the number of seats without counting of population is not explained anywhere. There was no statistical basis to reach this figure and more shocking was the distribution of Electoral Districts/seats between Jammu, Kashmir, Ladakh and POJK. 25 Electoral Districts were reserved for the areas illegally occupied by Pakistan ie POJK. Of the remaining 75 Electoral Districts/seats, 43 seats were assigned to Kashmir Region, only 30 for Jammu Region and two Electoral districts for Ladakh Region (one each for Leh and Kargil). This was the arrangement by the Interim Local Government of J&K with Sheikh Abdullah as the Prime Minister. It is indeed astonishing that Prime Minister Nehru did not take any objections to this dubious game of seat distribution, a creation of Shaikh Abdullah. Nehru turned a blind eye towards this injustice, which encouraged Shaikh Abdullah to function in arbitrary manner. where was Nehru’s sense of secularism when people of Jammu were consistently discriminated against, purely on the basis of religion. How secular is it to give 43 seats to Kashmir where as 30 seats to Jammu despite having a larger population.
Besides this, the displaced persons from POJK have been demanding that of the 25 seats, (later 24), they should be allowed to get representation in at least 6 seats. But these logical and genuine demands of the POJK displaced Hindus and Sikhs fell to deaf ears, because the Kashmir leadership feared that such inclusion will reduce the representation of Muslims in the legislature. Once again Mr. Noorani has no qualms about this injustice and cheating with the people, who are from J&K itself.
 

08) A.G Noorani -RSS spokesman M. G. Vaidya thought trifurcation “would help contain virulence in the Valley’’ (The Times of India, September 4, 2000), the easier to convert it into a huge concentration camp.

Reality - How is it that Mr Noorani doesnot feel the same with planned exodus of Hindus from the valley!!! Oh wait, did we miss something here?? Of course, when Hindus were thrown out of the valley, it was not ethnic cleansing, instead it was a necessary step to protect the ethnicity of Kashmiris (!!!), the Kashmiriyat……

 

 
 

09) A.G Noorani -Nehru warned Vallabhbhai Patel of this danger and wrote to his friend B.C. Roy, then chief minister of West Bengal, on June 29, 1953, on the RSS-backed Praja Parishad’s agitation for trifurcation of J&K:“If Hindu communalists could organise a movement in Jammu, why should not Muslim communalists function in Kashmir? The position now is that if there was a plebiscite, a great majority of Muslims in Kashmir would go against us. In fact there has been some petty violence also.

Reality - Is it not ironical to use this quote, which is nothing but ignorance of Nehru regarding the Praja Parishad movement? This movement in Jammu was not communal, nor was it pro-Hindu and anti-Muslim. The Praja Prishad movement was pro united India, it was a warning against the ulterior motives of Sheikh Abdullah, an alarm against possible separatism in the absence of uniform constitution, it was a prophecy, which was proved to be correct in future.

 

10) A.G Noorani -“So, this movement of the Praja Parishad, which aims at a closer integration of Kashmir state with India, has had the opposite effect. It is true that so far as Jammu province is concerned, it has demonstrated that a majority of Hindus there want closer integration. Nobody ever doubted that and, whatever happens, Jammu cannot leave India. There need be no apprehension about that. The whole difficulty has been about the Valley of Kashmir and we are on the point of losing it because of the Praja Parishad movement. Psychologically, we have lost it and it would be difficult to get back to the older position….. In the ultimate analysis, we gain Kashmir if we gain the goodwill of the people there. We cannot keep it at the point of the bayonet if it is clear that the people do not want us. For the first time, public cries are raised in Kashmir that the Indian Army should get out.’’ (Selected Works of Jawaharlal Nehru; Vol. 22; Pages 203-205).

Reality- Why does Mr Noorani rely so heavily on personal opinions, personal remarks and speeches of Nehru, the letters exchanged between Sheikh and Nehru and the meetings between the two? Was India a personal Jagir of Nehru and Sheikh? Is Mr Noorani not aware of the fact that India as a nation, functions on the basis of constitution and not on the basis of personal biases of leaders with vested interests. The above quote of Nehru is a proof of how uncertain and weak he was. It was this lack of grit of Nehru, which gave Sheikh the misunderstanding of being the sole representative of J&K people, who could talk pro India one day and por Pakistan the next day and then talk of becoming Switzerland on the third day. It was the same Nehru, who jailed Shaikh Abdullah, after realizing his terrible mistake of trusting the most unreliable man in J&K.

 

 

11) A.G Noorani -The eruption of militancy did not dampen the RSS’s zeal.

Reality - Why should terrorism, (which for patriotic Noorani is always ‘Militancy’), dampen the RSS zeal?? Did terrorism start, spread and continue in J&K due to Jammu and its Hindu population? And where was Mr. Noorani, the champion of human rights, when 4 lakh Hindus were tortured in the valley? Hindu women were raped and killed, Hindu prominent leaders, lawyers, human rights activists, even session court judge were killed in broad day light by the terrorist in Kashmir valley? Wasn’t there communal agenda and ethnic cleansing when the Hindus were given 2 days’ notice to leave the valley forever?

 

Centre’s appointee cannot grant assent to the Centre

A.G Noorani -In the entire exercise, vile passions have triumphed over elementary concern with the law. The presidential order is patently unconstitutional. It is made avowedly “with the concurrence of the government of the state of Jammu and Kashmir” but no such government has existed there for over a year, evidently to facilitate this constitutional skullduggery through a stooge, the governor, Satya Pal Malik. 
 
 

 

 Mr. AG Noorani mind your language

Reality- What audacity to call President’s order Unconstitutional and the Governor a Stooge!!! While Mr. Noorani is referring to the provision of Article 370-

 

 

13) A.G Noorani -“with the concurrence of the Government of the State of Jammu and Kashmir”

Reality- let us examine the meaning of “Govt of J&K” in Article 370and also the provisions of J&K Constitution with regards to the same.

 

14) A.G Noorani -Article 370 itself defines the “Government of the State” in an explanation which reads thus: “Explanation. — For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the council of ministers for the time being in office under the Maharaja’s proclamation dated the Fifth day of March, 1938.”(The Maharaja’s proclamation dated 5th March 1948 and not 1938.)

The Maharaja gave way to the Sadar-e-Riyasat, and to the Governor. Thus, the Governor cannot act under Article 370 singly as “the Government of the State”. The object of the provision is to buttress the State’s autonomy. The Centre’s appointee cannot give his concurrence to the Centre.

Reality- This may be the interpretation of Mr Noorani, but what is relevant to us is the constitutional provisions. From November 15, 1952, onwards, Sadar-i-Riyasat was Governor. (Ministry of Law Order No. C.O. 44, dated 15th November 1952). As per the constitution of J&K - Breakdown of Constitutional Machinery- Section/Article 92. (1) If at any time the Governor is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the Governor may by Proclamation:

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority in the State;

(b) make such incidental and consequential provisions as appear to the Governor to be necessary ordesirable for giving effect to the objects of the Proclamation, including provisions for suspending inwhole or in part the operation of any provision of this Constitution relating to anybody or authority inthe State.
Thus, the constitution of India under Article 356 and Constitution of J&K grant all government powers to the Governor, during an emergency/breakdown of constitutional machinery.
 

 

15) A.G Noorani -Coming back to Article 370, the President’s Order falls on the very first test and, with it, the Bill. There is another aspect to it, Article 1 of the Constitution of India. The Order supersedes all previous orders made under Article 370, including the Order inserting Article 35A in the Constitution of India. Part III of the Constitution of J&K contains elaborate provisions for the same purpose.

Reality- It is a shame that an educated man like Mr Noorani, who also happens to be the ‘Constitutional Expert’ has no remorse upholding an extremely discriminatory and draconian Article 35 A!!

 

 

16) A.G Noorani -The order of 2019 does not abrogate Article 370 as the RSS and BJP had always demanded. No MP noticed this. Home Minister Gulzari Lal Nanda had mentioned in the Lok Sabha on December 4, 1964, “It is through this tunnel that a good deal of traffic has already passed and more will.’’ To reduce it to a shell, the Modi regime has gone further. It has also scrapped the Constitution of J&K.


 
 
Reality - As mentioned in the beginning, Mr Noorani suffers from such selective reading and referencing that he overlooks the fact that by doing so he is cheating and deceiving his readers. Since he has made reference to the Lok Sabha debate on Article 370 in 1964, it is pertinent to mention here, that Prakash Veer Shastri, MP from Bijnaur, had moved a Private Members Bill to remove Article 370 in Loksabha in 1964. The excerpts from the speeches of MPs from J&K in the same debate are mentioned below.
Gopal Datt Mengi, from J&K called Article 370 a ‘curse’ for J&K. He said that ‘Article 370 does not give us any special status, rather it has made us second class citizens in our own country. It is a wall between India and J&K. Mr Mengi on the floor of the house referred to his conversation in the same morning with Mir Qasim, the general secretary of National Conference, who shared the views of Mr Mengi and said that Constitution of India should be implemented fully in J&K. Mr Mengi supported the deletion of Article 370 and put forward a demand for such provisions whereby the entire constitution of India is implemented in J & K.
Abdul Ghani Goni from J&K, a close associate of Sheikh Abdullah, was a strong proponent of the separate Muslim identity of the State and resisted the implementation of the Indian Constitution in J&K. However, after the implementation of Article 370 and the hindrances it created in the overall development of the State, he changed his stand. Goni, not only supported the bill, but pleaded with the house to adopt it. He clearly stated that “the then Prime Minister of J&K, Bakshi Ghulam Mohammad had moved for abrogation of Article 370, but the Central Govt was not agreeable to it at that time. I do not know whether the Central Govt is under the influence of the west or wants appeasement policy towards Pakistan….. they want to please their neighbours at our cost. The Central Govt., our Congress leaders, have not done justice to the people of Kashmir. The people of Kashmir haddecided once and for all and have decidedonce and for all that Kashmiris an integral part of India, whetherthere is Article 370 or no Article 370.It is only a provisional provision anda temporary provision in the Constitutionwhich can be removed at anytime. But as far as the complete accessionis concerned, that is final andnobody can challenge it.”
He further added “I assure you, Sir, as far as we are concerned, we will fight to the last forthe secular forces, for the secular character and for the pro-India forces.But unfortunately, the current governmentin the State is proceeding in such a manner that the pro-Indianforces are attacked or assaulted andthe anti-national forces, the pro-Pakistan forcesare given full freedom to say any damn thing.” While pleading with the house to support the bill, he said “SoI dispassionately appeal to the Membersof this House, and appeal notonly to the Opposition Members butalso to the Congress Members to supportthis Bill and get it passed andhave Article 370 abrogated from theConstitution of India, so that we mayalso be treated as equal citizens, asgood citizens of India as any othercitizen. Don't treat us as second-classcitizens, and don't treat us as a colonyof India. We are as much a part ofIndia as other States.”
Another M P from J&K, Syed Nasir Husain Samnani, asked the house that what is the fault of the people of J&K that Art 370 is not abrogated? He questioned the relevance of Article 370 and said “We, the people of Kashmir never demanded that we should be treated differently. We do not want Article 370. I want to end this curse in my lifetime, for my safety, for my children’s safety, for the safety of our future generations.” He directly questioned the Home Minister, that ‘why is Article 370 still a part of Constitution and why do they want to keep it? We should have the same laws as Maharashtra, Madras, Kerela, Bengal etc. We did not believe in two nation theory of Jinnah and hence we did not allow any branch of Muslim League to be formed in J&K.’
In response to the bill, while presenting the point of view of the govt, the then Home Minister, Gulzarilal Nanda did say “It is through this tunnel that a good deal of traffic has already passed and more will’’, but he alsosaid that there were some technical glitches due to which accepting the current bill will not be possible. He said “I share the sentiments of Shastri jiand soon a better -good method will be adopted for same.”
It was historical moment that there was a full consensus on the issue of deleting Article 370 from Constitution. This included members from the ruling as well as opposition parties. However, Congress issued a whip to vote against the bill and thus the bill could not see the daylight.
It is indeed astounding that Mr Noorani did not think of such historical discussion on Article 370, worthy of even a mention in any of his works.

17) A.G Noorani -Article 370 -Once the Constituent Assembly of Jammu and Kashmir was “convened”, to use the exact word in Article 370, the state government lost its interim power to accord its concurrence. And when this body dispersed on January 27, 1957 after adopting the state’s Constitution, there vanished also the president’s powers – under Article 370 – to add more legislative powers to the Centre in respect of J&K or extend to the state any other provision of the Constitution of India. Conscious of this, the President of the Kashmir Constituent Assembly, G.M. Sadiq, formally dissolved the body on January 25, 1957 pursuant to a formal resolution on dissolution passed on November 17, 1956.

Reality- Is this an oversight or ignorance, that G M Sadiq is referred to as President of Kashmir Constituent Assembly and not that of Jammu& Kashmir Constituent Assembly? This is exactly how the seeds of separatism are sown in the minds of people from Kashmir. Is Mr Noorani not aware of the fact that the Constituent Assembly was not only for Kashmir but for the entire State?How can a legal expert of the stature of Mr Noorani, misinterpret Article 370 to such fallacy??

 

18) A.G Noorani -Clause 3 “(3) Notwithstanding anything in the forgoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the state referred to in clause (2) shall be necessary before the President issues such a notification.”

Reality- Considering the above provision, neither the Constituent Assembly sent a recommendation to the President, nor the President declared that Article 370 shall cease to operate, consequently Article 370 was operativetill 5th August 2019. Hence the conclusion drawn by Mr. Noorani, that ‘since the Constituent Assembly dispersed on January 27, 1957 after adopting the state’s Constitution, there vanished also the President’s powers – under Article 370 – to add more legislative powers to the Centre in respect of J&K or extend to the State any other provision of the Constitution of India’ is hilarious. If the framers of Indian Constitution wanted to make such arrangements, as described by Mr. Noorani, then why would they put a clause Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.” The provision, in such case, should have simply provided that Article 370 shall cease to operate as soon as the J&K Constitution is adopted/completed/the Constituent Assembly is dissolved. The fact that it does not make such provision, certainly means that the constitutional provision regarding Article 370 is not what Mr Noorani is interpreting it to be.Reality- Considering the above provision, neither the Constituent Assembly sent a recommendation to the President, nor the President declared that Article 370 shall cease to operate, consequently Article 370 was operativetill 5th August 2019. Hence the conclusion drawn by Mr. Noorani, that ‘since the Constituent Assembly dispersed on January 27, 1957 after adopting the state’s Constitution, there vanished also the President’s powers – under Article 370 – to add more legislative powers to the Centre in respect of J&K or extend to the State any other provision of the Constitution of India’ is hilarious. If the framers of Indian Constitution wanted to make such arrangements, as described by Mr. Noorani, then why would they put a clause Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.” The provision, in such case, should have simply provided that Article 370 shall cease to operate as soon as the J&K Constitution is adopted/completed/the Constituent Assembly is dissolved. The fact that it does not make such provision, certainly means that the constitutional provision regarding Article 370 is not what Mr Noorani is interpreting it to be.

 

 

19) A.G Noorani -Article 370 refers to J&K’s Constituent Assembly twice, this recognising its right to have its: own constitution.

Reality- As discussed elaborately in the White Paper on Indian States, J&K was not the only Princely State to make its constitution. Under the Democratisation Process, the Princely States, after their integration with India, had the option to make their Constitutions by forming a Constituent Assembly. Although, only Mysore, Travancore- Cochin and Saurashtra drafted their constitutions.The Vellodi Committee was appointed ‘to examine Draft Constitution of India with a view to approximating the position of the States to that of Provinces.’ (White Paper on Indian States, page 109). The three above mentioned States suggested some amendments, which were incorporated in the Indian Constitution, adopted by these States as well. The same was applicable in case of J&K. However, due to the war and illegal occupation of J&K territories by Pakistan, this process was not identical in J&K. Hence, drawing a conclusion that by virtue of reference to Constituent Assembly in Article 370, it cannot be deduced as ‘J&K’s right to have its own constitution.’

 

20) How ‘temporary’ becomes final

A.G Noorani -N. Gopalaswamy sponsored Article 370 in India’s Constituent Assembly…….. Gopalswamy’s explanation, read with Rajendra Prasad’s note, establishes that Jammu and Kashmir’s Constituent Assembly had to determine the final position and then ask the President to notify that Article 370 shall cease to be operative. This explains its “temporary” character.  
 

 
 

Prasad referred to an aspect which a Union home minister and a prime minister more intelligent than Amit Shah fully understood – that Article 1 of India’s constitution establishing a “Union of States” applies to J&K by virtue of Article 370 (1)(c).

On March 1, 1993, S.B. Chavan pointed out that Article 370 is “the only link” India has with Kashmir (The Statesman, March 2, 1993). As Narasimha Rao said on June 12, 1996, “Abrogation of this Article is just not possible, unless you want to part with the state’’.

Reality- Often, it is claimed that abrogation of Article 370 will end J&K’s relations with India. The moot question, which needs to be answered is, why Mr Noorani is asking to read Iyengar’s explanation of Article 370 with Rajendra Prasad’s note and then draw a wishful conclusion?? Is it not common sense, that nothing was stopping the framers of our constitution or Iyengar from stating things in Black &White? If Article 370 is the only link between J&K and India, then it would /should have been mentioned clearly. If Article 370 was to become defunct automatically, with the dissolution of the Constituent Assembly of J&K, it would have been so mentioned. The very fact that Article 370, Iyengar’s explanation, and the Constitution of J&K do not say so, means it was not meant to be so. Is it not wise to read the Constitution rather than read people’s interpretations and opinions, to draw logical conclusions? What connects J&K with India is the Instrument of Accession signed by Maharaja Hari Singh on 26th October 1947, Article 1 of Indian constitution, in which,while defining the territory of India, J&K is listed as the 15th State of India. All these connect J&K with India. Although now a thing of past, it is relevant to quote here that the Constitution of J&K, Section 3, while defining the Relationship of the State with the Union of India stated:The State of Jammu and Kashmir is and shall be an integral part of the Union of India. And Section 147 of J&K Constitution provided that no proposal to amend Section 3 can be introduced in the legislature, thus making Section 3 a permanent provision.

There have been several judgements delivered by Hon’ble Supreme Court of India, with regards to Jammu and Kashmir in various Public Interest Litigations, establishing the fact that it is an integral part of India and hence, is like any other State of India. In the case or State Bank of India v. Santosh Gupta and others, 2016, Hon’ble Supreme Court referred to the preamble of the Constitution of India and the Constitution of the Jammu and Kashmir and clarified that in the preamble of the Constitution of Jammu and Kashmir there is no reference of expressions such as ‘Sovereignty’ or ‘Citizens’ which makes it amply clear that State of Jammu and Kashmir has no vestige of sovereignty outside the Constitution of India and its own constitution which is subordinate to the Constitution of India.


21) A.G Noorani -From State of the Union to de facto colony

Reality- This is nothing but an emotional outburst without any valid argument in it.

 

22) A.G Noorani -The illegalities pile up

Reality - As mentioned earlier, not only Article 356 of Indian Constitution but Section 92 of the Constitution of J&K also has provisions which recognize the Governor as the Govt in case of break down of constitutional machinery.

 

23) A.G Noorani -after 1951, the State Government had lost its interim power to accord consent. It now belonged to the State’s Constituent Assembly;

Reality- On what basis Mr Noorani is drawing this conclusion? There is nothing in Article 370 which can be concluded as the above.

 

24) A.G Noorani- The Bill reduces the ancient state of Jammu and Kashmir to the status of a Union Territory, forget “the basic structure” of the constitution.

Reality- Being ancient does not make any state immune of the legal provisions of Constitution of the country. Redefining the territory of any part/ state/ UT of India, is well within powers of Parliament. Besides, the Home Minister has made it very clear that this arrangement is for the time being.

 

 

25) A.G Noorani- The resolutions cap all this by substituting parliament for the State legislature and empowering Parliament to give consent to itself.

So much for the law. These three measures together inflict on the people of Kashmir a humiliation more degrading than the one inflicted on August 8, 1953 by the ouster of Sheikh Abdullah from the office of premier of J&K. It deepens the divide between India and Kashmir, and between Kashmir and Jammu and Ladakh. As in the case of the crime of 1953, these measures have won popular jingoistic approval today but are certain to arouse deep regrets later.

Reality - Interesting observation made by a senior advocate, about Sheikh Abdullah, but he has no objection on the divisive mindset of Sheikh Abdullah, he has no regret that Sheikh Abdullah cheated his own people and the Govt of India by indulging in politics of vested interest, by talking against unity and integrity of India. For Mr Noorani, Sheikh’s ouster from office is a matter of ‘humiliation inflicted upon Kashmiri people’ but he does not find Sheikh’s behavior unworthy of holding any constitutional office, because he had started speaking the language of Pakistan. Mr Noorani does not utter a word to condemn Abdullah family, which has deceived the people of valley for last seven decades.

 

What the Kashmiris want

26) A.G Noorani- One cardinal factor which successive governments of India since Nehru have deliberately ignored is the people of Kashmir. They were opposed to the State’s accession to India from the very beginning. The raiders from Pakistan forced Sheikh saheb’s hands.
 
Reality - Mr. Noorani needs some serious lessons in history. It is important to know the controversial role of Sheikh Saheb in this political drama.
‘The InterimGovernment was instituted by a proclamation of Maharaja Hari Singh on 5 March 1948.Sheikh Mohammad Abdullah was appointed the Prime Minister of the State. The othermembers of the Council of Ministers were appointed from among the other leaders of theNational Conference. Bakshi Ghulam Mohammad was appointed the Deputy Prime Ministerof the state. All the powers of the State Government, except those related to the Ruler, hisfamily and his property, privy purse, succession, Jagirs, Private Officers and the religiousendowment of the Dharmarth were vested with the Council of Ministers. The Council was tofunction on the principle of joint responsibility. The Council was also charged with theresponsibility to convene a Constituent Assembly, which would be elected on the basis ofuniversal adult franchise and would draw up a Constitution for the Government of the State.After the institution of the Interim Government, the National Conference set out to assumecontrol over the entire Government of the State, showing scant regard to the powersreserved for the Maharaja. Hari Singh, unable to influence the course of events, closedhimself in his palace in Jammu. "I have written", Patel wrote to Nehru, several letters toSheikh Sahib about casing tension and improving relations but I regret to say that I havehad no reply. From all accounts it appears that the arrangements regarding reserved andnon-reserved subjects to which Sheikh Sahib had agreed in March last are being treated asa nullity and the presence of the Maharaja and the existence of the reserved subjects areboth being ignored."Towards the summer, the National Conference changed its strategy and informed theGovernment of India that Hari Singh should be advised to abdicate and the powers, whichhe still exercised, should be transferred to the Interim Government. "I am thereforeconstrained to aver once again", Sheikh Mohammad Abdullah wrote to the Prime Minister,"that the choice is finally between the Maharaja and the people and if the choice is not soonmade, it might lead us into very serious trouble both militarily and politically. The onlyalternative", Sheikh Mohammad Abdullah added, "is that his highness should abdicate infavor of his son and that there should be no reservation whatsoever, in the administrationof various subjects under the Ministers". (M K Teng, Kashmir- Article 370, pp 27,28). So much for the believer in democratic process!!

27) A.G Noorani- On May 14, 1948, Indira Gandhi wrote to her father from Srinagar: “They say that only Sheikh Saheb is confident of winning the plebiscite…’ (Sonia Gandhi [ed.]) Two Alone, Two Together, Penguin, New Delhi, 2004, pp. 512-18). Five years later, even Sheikh Abdullah had abandoned hope as President Rajendra Prasad reported to Prime Minister Nehru on July 14, 1953.

Reality- Plebiscite was not a condition but a suggestion from the UN. It is ironical that those who talk about the plebiscite, never mention the points of UN resolution, which declared Pakistan the aggressor and asked Pakistan to vacate the territories of J&K illegally occupied.


In order to classify the resolutions passed by the security council on 13th August 1948 and 5th January 1949 a number of assurances and clarifications were given to the Government of India by Security Council. The UNCIP (United Nations Commission for India Pakistan) assurances pertaining to the resolution of 13th August 1948 and 5th January 1949 –
13th August 1948-
1. The sovereignty of Jammu and Kashmir Government over the entire state cannot be brought into question.
2. There shall be not be any recognition of the Azad Kashmir Government.
3. The territory occupied by Pakistan will not to be consolidated to the disadvantage of the state.
4. Responsibility for the security of the State of Jammu and Kashmir solely rests with the Govt of India.
5. Pakistan will have no part in the proposed plebiscite.
6. The administration of the evacuated areas of Northern Kashmir shall revert to the Government of the State of Jammu and Kashmir and its defense to the govt of India, who will, if necessary, maintain garrison for preventing the intrusion of tribesmen and for guarding the main trade routes.
5th January 1949-
1. Plebiscite proposal shall not be binding on India if Pakistan does not implement Parts I and II of the Resolution of 13th August 1948.
2. The Commission will first explore the possibility of a plebiscite. If a plebiscite is found impossible for technical or practical reasons, the commission could then suggest alternative solutions, (Gururaj Rao, “Legal Aspects of the Kashmir Problem” Minerva Press, New Delhi, 2002)

28 ) A.G Noorani- In a letter to Nehru on May 1, 1956, Jayaprakash Narayan reported that “95% of Kashmir Muslims do not wish to be or remain with India”. Nehru had foreseen the danger that the Sangh Parivar posed.

Reality - Is it not surprising that on May 1st, 1956 Jayprakash Narayan declares (without conducting a voting on the issue) that 95% of Kashmir Muslims do not wish to be or remain with India, and in 1964, the Member of Parliament- MPs from same Kashmir, were requesting the Loksabha to remove Article 370 and were showing their discontent on behalf of the people that by not deleting Article 370 the people of J&K were treated like second grade citizens. It is up to the readers to decide, who to believe. Jaypraksah Narayan or the representatives of people from J&K in the Parliament.
And for those who shed the crocodile’s tears on the Muslim identity of Kashmir under threat, the following will shed some light on the history of Kashmir. “Kashmir can claim the distinction of being the only region of India which possesses an uninterrupted series of written records of its history, reaching back beyond the period of the Mohammedan conquest and deserving the name of real chronicles.” Walter W. Lawrence, The Valley of Kashmir, 1895, (Sisir Gupta, , “Kashmir- A Study in India- Pak Relations”, Asia Publishing House, Bombay, pp 17, 1967).

The road ahead

29) A.G Noorani- Remember, Article 370 is not mere provision enacted by the Constituent Assembly of India. It gives effect to a solemn compact negotiated over five long months between the Government of India and the Government of Jammu and Kashmir. History will never forgive those who wrecked it calculatedly since May 1954 and then demolished it on August 5, 2019. The first street protests erupted on August 9. Wait for what follows. 

 

Rreality - Mr Noorani is obsessed with an agreement which has no legal standing. What kind of an agreement was this Delhi Agreement, because not even a single copyis found anywhere? It is also relevant to ask this question here about the validity of this Delhi Agreement, because the meeting between the PM and Sheikh Abdullah and the decisions taken in this meting cannot supersede the Constitution of India. One is also compelled to ask this question to Mr Noorani, that on one hand he states that Article 370 became ineffective with the formation of the Constituent Assembly of J&K on the other hand even after 70 years he is swearing by what was allegedly guaranteed by this temporary Article.
 
It is ironical that a man who earned his living based on Constitution of India, law and justice, had no remorse while misinterpreting and misrepresenting this sacred document- The Constitution of India. Mr Noorani’s understanding of Justice, Identity and Rights, are so selective. He is repeatedly condemning the amendment of Article 370 on 5th and 6th August 2019, but he has not uttered a word about the amendment of Indian Constitution in 1954, when Article 35 A was inserted in the Constitution, through a Presidential order, without the approval of the Parliament. This Article 35 A deprived lakhs of Indian of their basic rights. The only section of society which was guaranteed rights as citizens were the Males, with Permanent Resident Certificates, their wedded wives and the male children of these couples. Article 35 A denied equal rights to all women of J&K and striped them of all their rights, if these women with PRC married a non PRC holder, their children were denied all the rights. It discriminated against lakhs of West Pakistan Refugees, who settled in Jammu on request by Sheikh Abdullah, lakhs of Gorkhas, who were living in J&K since 1800s, thousands of Valmikis, who were brought form Panjab in 1957 as sweepers and since then were allowed to become only sweepers in Jammu municipality, and compelled them all to live like second grade citizens for decades.
If insertion of Article 35 A is legal then all is legal and if insertion of Article 35 A is illegal then all the discrimination and prohibition stemming from this Article is also illegal and hence defunct. So, in either case, the provisions of Article 35 A become unconstitutional.
Another question which needs to be answered is what was the role of Article 370 and Article 35 A, did these Articles give some such special privileges to the people of J&K which were not enjoyed by rest of India? The answer is NO. These Articles did not give anything exclusive to the people of J&K, these were used to deny rights to some sections of J&K, rather than give something special to the people of J&K. A detailed analysis will show that what the MPs from J&K were lamenting about in the Parliament in 1964 is the truth of J&K and Article 370. The people of J&K have been deprived of development, good education and better living conditions because of these Articles. Progressive laws like RTI, RTE, POCSO, Anti-Corruption Laws etc., were denied to the masses in J&K. The politicians had no accountability and they kept people of J&K very systematically enthralled in terrorism, special status, separatism, Azadi so on so forth.
Time will tell that the amendment of Article 370 is long pending justice, finally done to the people of J&K. And history will not forgive Mr Noorani and others like him, who fed venom, animosity and separatism to the people of Kashmir and misled them shamelessly. These people spread hatred and hindered peace and development in the valley. Article 370 was temporary, it had to go. Unfortunately, a lot has been lost over 70 years, and it will take some time to regain normalcy. J&K must look at the future and secure the best for themselves and for their future generations.