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Storm in tea-cup in J&K / India over Article 370

Dear Editor

Sub:- Status of India nothing more than (i)- Care taker of J&K (ii)- Election Commission for united-J&K

In view of the statement by BJP President Amit Shat that (Article 370 of the Constitution will be abolished in 2020 when BJP will have requisite majority in both the houses of Parliament) the leaders from J&K have threatened that it will be end of accession of J&K to India (as mentioned also at  and  etc)  and media in rest of India is making lot of noise about this so-called renewed threat to the territorial integrity of India.

But this is nothing more than a storm in tea-cup because even if Article 370 is abolished the Constitution of J&K cannot be abolished because it derives legitimacy, legality and power not merely from the Constitution of India (Article 370) but also rather mainly from the ‘Instrument of Accession’ (IoA) as mentioned at itself, the Article 370 (1) (b) (i) and Provision of (d). In a nutshell if Hindu India is thinking that by abolishing Article 370 (and its corollary 35-A etc) Hindus will be able to transform the demography of Muslim Kashmir in the favor of Hindus then they are horribly wrong, constitutionally & legally.

This confusion in the mind of Hindu majority India is due to the fact that India does not understand that as per IoA the status of India is nothing more than (i)- Care taker of J&K (ii)- Election Commission for united J&K [with only difference that unlike ECI which uses only police and para-military forces for conducting elections in India, the Union of India may rather will have to use also the Indian military for retrieving PoJK and to carry-out plebiscite in united-J&K after restoring status-quo-ante in united-J&K (including by rehabilitation of Kashmiri Pandits) as prevailed in August 1947 and for maintaining law and order too in United-J&K to facilitate this plebiscite].

Therefore Hindu majority India (instead of day-dreaming about meaningless abolition of Article 370) should think of plebiscite as I mentioned in my online public interest writ petition of March, 25 to J&K High Court Srinagar 
The important part of this writ petition are given as - “[[[- [3]That gory & chronic Kashmir problem has lingered mainly due to ultra-vires acts of the legislative bodies of the Respondents (the Union of India and the State of J&K) about ‘Instrument of Accession’ (IoA) of J&K to India accepted by the then Governor General of India on October 27, 1947 which is a judicially noticeable fact and in essence is given as –“My Dear Maharajah Sahib, Your Highness’s letter dated the 26th October, has been delivered to me by Mr. V.P. Menon. In the special circumstances, mentioned by your Highness, my Government have decided to accept the Accession of Kashmir State to the Dominion of India. Consistently with their policy that, in the case of my State where the issue of Accession has been the subject of dispute, the question of Accession Should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir, and her soil cleared of the invader, the question of the State’s Accession should be settled by a reference to the people. Meanwhile, in response to your Highness’s appeal for military aid, action has been taken today to send troops of the Indian Army to Kashmir to help your own forces to defend your territory and to protect the lives, property and honor of your people. My Government and I note with satisfaction that your Highness has decided to invite Sheikh Abdullah to form an Interim Government to work with your Prime Minister: Yours Sincerely Sd/- Mountbatten of Burma” [5]- That as per IoA the people of J&K have nothing to do even with United Nations rather it is the responsibility of India to get plebiscite by getting the soil of united J&K cleared of Pak invaders (including non-citizens of united J&K) and after getting law & order restored in united J&K and how India does it is India’s headache whether by its own or through UN or by getting military help from any friendly country.[6]- That it is legally pertinent to mention that Respondents (neither Indian Parliament nor Legislative Bodies of J&K nor any other constitutional authority or institution in India) have any constitutional-legal right to decide on the fate of territory of united J&K before plebiscite as per IoA.[7]- That in violation of the fundamental legal principle which is mentioned in above S.No. [6] the Respondents (through legislative bodies of Union of India and of the State of J&K) have illegally mentioned (as below) the J&K as a State like any other State of India and even an integral part of India which is against the letter and spirit of IoA, hence ultra-vires and null & void and legally ought to be repealed. Therefore in view of above mentioned, High Court is requested to issue appropriate writs in order to:- (A)- Get repealed the Article 1 (3) (a) of The Constitution of India and PART II THE STATE (3) of the Constitution of J&K [which illegally show J&K as Indian territory (like any other State of India) and even an integral part of India without any mention of the condition of plebiscite to decide the territory of J&K as per ‘Instrument of Accession’]. (B)- Recommend to His Excellency President of India that His Excellency President, under Article 86 (2) of the Indian Constitution, may send message to Parliament to incorporate in such repealed parts of the Constitution of India that – [As per ‘Instrument of Accession’ the fate of territory of J&K will be decided after plebiscite which will be carried out by Union of India after ensuring, in united J&K, the conditions conducive for carrying out such plebiscite].( C)- Recommend to His Excellency Governor of J&K that His Excellency Governor, under Article 54 (2) of the Constitution of J&K, may send message to Legislative Bodies of J&K to incorporate in such repealed parts of the Constitution of J&K that [As per ‘Instrument of Accession’ the fate of territory of J&K will be decided after plebiscite which will be carried out by Union of India after ensuring in united J&K the conditions conducive for carrying out such plebiscite].(D)- (In view of delay of 71 years and immense killings, injuries and sufferings due to chronic & gory so-called Kashmir problem) direct the Respondent (i) the Union of India to get plebiscite in united J&K at the earliest possible after ensuring in united J&K the conditions conducive for carrying out such plebiscite required by IoA.]]]”

It is hoped that instead of raising the meaningless hullaballoo in J&K / India about Article 370 the people of India will endeavor to ensure plebiscite in united-J&K as mandated by ‘Instrument of Accession’ which is the only legally permissible (and leading to communal harmony between Hindus and Muslims) solution to chronic & gory Kashmir problem.


Hem Raj Jain

(President ‘Shri Mahavir-Jesus Jamaat’ and Author of ‘Betrayal of Americanism’)
Bengaluru, India

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