JAMMU AND KASHMIR
Article 370: Law and politics
the Constitution recognises in Article 370 the special status of Jammu
and Kashmir, the Central Government's policies since 1953 have totally
undermined its autonomy. Senior lawyer and political analyst A.G.
NOORANI discusses both aspects and suggests a way out of the mess.
"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..."
"We have fought the good fight about Kashmir on the field of
battle... (and) ...in many a chancellery of the world and in the United
Nations, but, above all, we have fought this fight in the hearts and
minds of men and women of that State of Jammu and Kashmir. Because,
ultimately - I say this with all deference to this Parliament - the
decision will be made in the hearts and minds of the men and women of
Kashmir; neither in this Parliament, nor in the United Nations nor by
anybody else," Jawaharlal N
ehru said in the Lok Sabha on June 26 and August 7, 1952.
- Selected works of Jawaharlal Nehru, Vol. 18, p. 418 and
vol. 19 pp. 295-6, respectively.
"From 1953 to 1975, Chief Ministers of that State had been nominees
of Delhi. Their appointment to that post was legitimised by the holding
of farcical and totally rigged elections in which the Congress party
led by Delhi's nominee was elected by huge majorities."
- This authoritative description of a blot on our record which most
overlook was written by B. K. Nehru, who was Governor of Kashmir from
1981 to 1984, in his memoirs published in 1997 (Nice Guys Finish Second; pp. 614-5).
THOSE who cavil at Article 370 of the Indian Constitution and the "special status" of Kashmir constitutionally ought to remember the "special" treatment meted out to it politically. Which other State has been subjected to such debasement an
d humiliation? And, why
was this done? It was because New Delhi had second thoughts on Article
370. It could not be abrogated legally. It was reduced to a husk
through political fraud and constitutional abuse. The current debate is
much more than about restoration of Article 370 by erasing the
distortions. It is about redressing a moral wrong.
The United Front government's minimum programme, published on June 5,
1996, said "respecting Article 370 of the Constitution as well as the
wishes of the people, the problems of Jammu and Kashmir will be
resolved through giving the people of that State t
he maximum degree of autonomy."
abuse accompanied political fraud. Article 370 was intended to
guarantee Kashmir's autonomy. On December 4, 1964, Union Home Minister
G. L. Nanda said it would be used to serve as "a tunnel (sic.) in the
wall" in order to increase the Cent
The State was put in a status inferior to that of other States. One illustration suffices to demonstrate that. Parliament had to amend the Constitution four
times, by means of the 59th, 64th, 67th and 68th Constitution
Amendments, to extend the President's Rule imposed in Punjab on May 11,
1987. For the State of Jammu and Kashmir the same result was
accomplished, from 1990 to 1996, by mere executive orders under Article
Another gross case illustrates the capacity for
abuse. On July 30, 1986, the President made an order under Article 370,
extending to Kashmir Article 249 of the Constitution in order to
empower Parliament to legislate even on a matter in the State List on
the strength of a Rajya Sabha resolution. "Concurrence" to this was
given by the Centre's own appointee, Governor Jagmohan. G.A. Lone, a
former Secretary, Law and Parliamentary Affairs, to the State
Government described in Kashmir Times
, 1995) how the "manipulation" was done "in a single day" against the
Law Secretary's advice and "in the absence of a Council of Ministers."
The Nehru-Abdullah Agreement in July 1952 ("the
Delhi Agreement") confirmed that "the residuary powers of legislation"
(on matters not mentioned in the State List or the Concurrent List),
which Article 248 and Entry 97 (Union List) confer on the Union, w
ill not apply to Kashmir. The order of 1986 purported to apply
to the State Article 249, which empowers Parliament to legislate even
on a matter in the State List if a Rajya Sabha resolution so authorises
it by a two-thirds vote. But it so amended Article 249 in its
application to Kashmir as in effect to apply Article 248 instead - "any
matter specified in the resolution, being a matter which is not
enumerated in the Union List or in the Concurrent List."
The Union thus acquired the power to legislate
not only on all matters in the State List, but others not mentioned in
the Union List or the Concurrent List - the residuary power. In
relation to other States, an amendment to the Constitution would
require a two-thirds vote by both Houses of Parliament plus
ratification by the States (Article 368). For Kashmir, executive orders
have sufficed since 1953 and can continue till Doomsday.
"Nowhere else, as far as I can see, is there any provision author
ising the executive government to make amendments in the Constitution,"
President Rajendra Prasad pointed out to Prime Minister Nehru on
September 6, 1952. Nowhere else, in the world, indeed. Is this the
state of things we wish to perpetuate? Uniquely Ka
shmir negotiated the terms of its membership of the Union for five
months. Article 370 was adopted by the Constituent Assembly as a result
of those parleys.
YET, all hell broke loose when the State
Assembly adopted, on June 26, a resolution recording its acceptance of
the report of the State Autonomy Committee (the Report) and asked "the
Union Government and the Government of Jammu and Kashmir to take positi
ve and effective steps for the implementation of the same." On July 4,
the Union Cabinet said that the resolution was "unacceptable... would
set the clock back and reverse the natural process of harmonising the
aspirations of the people of Jammu & Kashmi
r with the integrity of the State" - a patent falsehood, as everyone
The State's Law Minister, P.L. Handoo, said on
June 26 that the people "want nothing more than what they had in 1953."
Overworked metaphors (about the clock or the waters of the Jhelum which
flowed since) do not answer two crucial questions: Can lapse of time
sanctify patent constitutional abuse? Can it supply legislative
competence? If Parliament has legislated over the States on a matter on
which it had no power to legislate, under the Constitution, it would be
a nullity. Especially if the State's peo
ple have been protesting meanwhile and their voice was stifled through
Disapproval of Chief Minister Farooq Abdullah's
opportunist politics should not blind one to the constitutional issues.
The State's Finance Minister, Abdul Rahim Rather, a moving spirit
behind the Report, resents suggestions of political timing. The repo
rt was placed before the Assembly on April 13, 1999. The State Cabinet
endorsed its recommendations and decided last April to convene a
special session of the Assembly to discuss it. The Government of India
was "once again requested to set up a ministeri
al committee in order to initiate a dialogue on the report."
It provides a comprehensive survey of
constitutional developments, which is useful in itself for its
documentation. It lists 42 orders under Article 370 and gives the
following opinion: "Not all these orders can be objected to. For
instance, none can obj
ect to provisions for direct elections to Parliament in 1966... It is
the principle that matters. Constitutional limits are there to be
respected, not violated."
The ruler of Jammu and Kashmir acceded to India
by an Instrument of Accession on October 26, 1947 in respect of only
three subjects - defence, foreign affairs and communications. A
schedule listed precisely 16 topics under these heads plus four others
lections to Union legislature and the like).
Clause 5 said that the Instrument could not be
altered without the State's consent. Clause 7 read: "Nothing in this
Instrument shall be deemed to commit me in any way to acceptance of any
future Constitution of India or fetter my discretion to enter into
arrangements with the Government of India under any such future
Constitution." Kashmir was then governed internally by its own
Constitution of 1939.
The Maharaja made an Order on October 30, 1947
appointing Sheikh Abdullah the Head of the Emergency Administration,
replacing it, on March 5, 1948, with an Interim Government with the
Sheikh as Prime Minister. It was enjoined to convene a National Assemb
ly "to frame a Constitution" for the State.
Negotiations were held on May 15 and 16, 1949
at Vallabhbhai Patel's residence in New Delhi on Kashmir's future
set-up. Nehru and Abdullah were present. Foremost among the topics were
"the framing of a Constitution for the State" and "the subjects in res
pect of which the State should accede to the Union of India." On the
first, Nehru recorded in a letter to the Sheikh (on May 18) that both
Patel and he agreed that it was a matter for the State's Constituent
Assembly. "In regard to (ii) the Jammu and Kas
hmir State now stands acceded to the Indian Union in respect of three
subjects; namely, foreign affairs, defence and communications. It will be for the Constituent Assembly of the State when convened, to determine in respect of which other subjects th
e State may accede"
(emphasis added, throughout). Article 370 embodies this basic principle
which was reiterated throughout (S.W.J.N. Vol. 11; p. 12).
On June 16, 1949, Sheikh Abdullah, Mirza Mammad
Afzal Beg, Maulana Mohammed Saeed Masoodi and Moti Ram Bagda joined the
Constituent Assembly of India. Negotiations began in earnest on Article
370 (Article 306. A in the draft). N. Gopalaswamy Ayyangar tri
ed to reconcile the differences between Patel and Abdullah. A text,
agreed on October 16, was moved in the Constituent Assembly the next
day, unilaterally altered by Ayyangar. "A trivial change," as he
admitted in a letter to the Sheikh on October 18. Pa
tel confirmed it to Nehru on November 3 on his return from the United
States. Beg had withdrawn his amendment after the accord. Abdullah and
he were in the lobby, and rushed to the House when they learnt of the
change. In its original form the draft woul
d have made the Sheikh's ouster in 1953 impossible.
ARTICLE 370 embodies six special provisions for
Jammu and Kashmir. First, it exempted the State from the provisions of
the Constitution providing for the governance of the States. Jammu and
Kashmir was allowed to have its own Constitution within the Indi
Second, Parliament's legislative power over the
State was restricted to three subjects - defence, external affairs and
communications. The President could extend to it other provisions of
the Constitution to provide a constitutional framework if they rel
ated to the matters specified in the Instrument of Accession. For this,
only "consultation" with the State government was required since the
State had already accepted them by the Instrument. But, third, if other
"constitutional" provisions or other Unio
n powers were to be extended to Kashmir, the prior "concurrence" of the
State government was required.
The fourth feature is that that concurrence was
provisional. It had to be ratified by the State's Constituent Assembly.
Article 370(2) says clearly: "If the concurrence of the Government of
the State... be given before the Constituent Assembly for the pu
rpose of framing the Constitution of the State is convened, it shall be
placed before such Assembly for such decision as it may take thereon."
The fifth feature is that the State
government's authority to give the "concurrence" lasts only till the
State's Constituent Assembly is "convened". It is an "interim" power.
Once the Constituent Assembly met, the State government could not give
ts own "concurrence". Still less, after the Assembly met and dispersed.
Moreover, the President cannot exercise his power to extend the Indian
Constitution to Kashmir indefinitely. The power has to stop at the
point the State's Constituent Assembly draft
ed the State's Constitution and decided finally what additional
subjects to confer on the Union, and what other provisions of the
Constitution of India it should get extended to the State, rather than
having their counterparts embodied in the State Const
itution itself. Once the State's Constituent Assembly had finalised the
scheme and dispersed, the President's extending powers ended
The sixth special feature, the last step in the
process, is that Article 370(3) empowers the President to make an Order
abrogating or amending it. But for this also "the recommendation" of
the State's Constituent Assembly "shall be necessary before the President issues such a notification".
Article 370 cannot be abrogated or amended by recourse to the amending
provisions of the Constitution which apply to all the other States;
namely, Article 368. For, in relation to Kashmir, Article 368 has a
proviso which says that no constitutional amend
ment "shall have effect in relation to the State of Jammu and Kashmir"
unless applied by Order of the President under Article 370. That
requires the concurrence of the State's government and ratification by its Constituent Assembly.
Jammu and Kashmir is mentioned among the States of the Union in the
First Schedule as Article 1 (2) requires. But Article 370 (1) (c) says:
"The provisions of Article 1 and of this Article shall apply in
relation to that State". Article 1 is thus appl
ied to the State through Article 370. What would be the effect of its abrogation, as the Bharatiya Janata Party demands?
Ayyangar's exposition of Article 370 in the Constituent Assembly on
October 17, 1949 is authoritative. "We have also agreed that the will
of the people through the instrument of the Constituent Assembly will
determine the Constitution of the State as wel
l as the sphere of Union jurisdiction over the State... You will
remember that several of these clauses provide for the concurrence of
the Government of Jammu and Kashmir State. Now, these relate
particularly to matters which are not mentioned in the Ins
trument of Accession, and it is one of our commitments to the people
and Government of Kashmir that no
such additions should be made except with the consent of the
Constituent Assembly which may be called in the State for the purpose
of framing its Co
Ayyangar explained that "the provision is made that when the
Constituent Assembly of the State has met and taken its decision both
on the Constitution for the State and on the range of federal
jurisdiction over the State, the President may, on the recomm
endation of that Constituent Assembly, issue an Order that this Article
306 (370 in the draft) shall either cease to be operative, or shall be
operative only subject to such exceptions and modifications as may be
specified by him. But before he issued an
y order of that kind, the recommendation of the Constituent Assembly
will be a condition precedent."
THE HINDU PHOTO LIBRARY
Prime Minister Jawaharlal Nehru with Sheikh Abdullah.
This unique process of Presidential Orders
altering constitutional provisions by a mere executive order ends with
the final decision of the State's Constituent Assembly. Ayyangar
repeatedly said that the State government's concurrence alone will not
do. "That concurrence should be placed before the Constituent Assembly
when it meets and the Constituent Assembly may take whatever decisions
it likes on those matters." (Constituent Assembly Debates; Vol. 8; pp. 424-427).
In 1949, no one knew when Kashmir's Constituent Assembly would be
elected. Ayyangar therefore said: "The idea is that even before the
Constituent Assembly meets, it may be necessary... that certain items
which are not included in the Instrument of Access
ion would be appropriately added to that list in the Instrument... and
as this may happen before the Constituent Assembly meets, the only authority from whom we can get consent for the addition is the Government of the State." This was explicitly
only for that interim period.
Article 370 (1) (b) is clear. "The power of Parliament to make laws for
the said State shall be limited to" (1) matters in the Union and
Concurrent Lists corresponding to the broad heads specified in the
Instrument of Accession "and (ii) such other matte
rs in the said Lists as, with the concurrence of the Government of the
State the President may by Order specify". An Explanation defined "the
Government of the State". Similar "concurrence" was required when
extending provisions regarding Union instituti
ons beyond the agreed ones. But Article 370 (2) stipulated clearly that
if that concurrence is given "before the Constituent Assembly... is convened, it shall be placed before such Assembly for such decision as it may take thereon".
Once Kashmir's Constituent Assembly was "convened" on November 5, 1951,
the State Government lost all authority to accord its "concurrence" to
the Union. With the Assembly's dispersal on November 17, 1956, after
adopting the Constitution of Jammu and Kas
hmir, vanished the only authority which alone could cede: (a) more
powers to the Union and (b) accept Union institutions other than those
specified in the Instrument of Accession. All additions to Union powers
since then are unconstitutional. This unders
tanding informed decisions - right until 1957.
THE Constituent Assembly of India adopted the
Constitution on November 26, 1949. A day earlier, the ruler of Kashmir
made a Proclamation declaring that it "shall in so far as it is
applicable to the State of Jammu and Kashmir, govern the constitutional
elationships between this State and the contemplated Union of India".
Article 370 is more than a provision of that solemn document. It is
also a sacred compact with the State. On January 26, 1950, the
President made his first Order under Article 370, ext
ending specified provisions of the new Constitution to the State.
On April 20, 1951, the ruler made a
Proclamation for convening the State's Constituent Assembly. It met on
November 5, 1951. Two issues came to the fore. Nehru was eager to
secure Kashmir's "closer integration" with India; the Sheikh to ensure
vernance. The Delhi Agreement that followed was announced at a press
conference in Delhi on July 24, 1952 by both. This Union-Centre accord
had no legal force by itself. Only an Order under Article 370 could
confer that - after the Sheikh gave his "concu
The Sheikh, meanwhile, pressed for an Order to
redraft "the Explanation" in Article 370 redefining the State
government as one headed by an elected "Sadar-i-Riyasat (State
President)... acting on the advice" of his Ministers.
As for the Sheikh's request, Nehru wrote on
July 29, 1952: "It is not a perfectly clear matter from the legal point
of view how far the President can issue notifications under Article 370
several times." On September 6, 1952, President Rajendra Prasad po
inted out the illegality of such a course in a closely reasoned Note.
(It is appended to the Report.) He questioned "the competence of the
President to have repeated
recourse to the extraordinary powers conferred on him" by Article 370.
sion authorising the executive government to make amendments in the
Constitution" was an incongruity. He endorsed Ayyangar's views on the
finality of a single Order under Article 370. "I have little doubt
myself that the intention is that the power is to be exercised only once, for then alone would it be possible
to determine with precision which particular provisions should be
excepted and which modified."
The President concluded: "The conclusion,
therefore, seems to me to be irresistible that Clause (3) of Article
370 was not intended to be used from time to time as occasion required.
Nor was it intended to be used without any limit as to time. The correc
t view appears to be that recourse is to be had to this clause only
when the Constituent Assembly (sic) (Constitution) of the State has
been fully framed." That was over on November 17, 1956. But he yielded
to Nehru's pressure and made the Order on Novem
ber 15, 1952.
Events took a tragic course. The Sheikh was dismissed from office and imprisoned on August 9, 1953 (vide the writer's article, How and Why Nehru and Abdullah Fell Out": Economic and Political Weekly;
January 30, 1999). On May 14, 1954 came a compr
ehensive Presidential Order under Article 370. Although it was
purported to have been made with the "concurrence" of the State
government it drew validity from a resolution of the Constituent
Assembly on February 15, 1954 which approved extension to the State of
some provisions of the Constitution of India. The Order sought to
implement the Delhi Agreement. The Report makes two valid points. Why
the haste since the State's Constitution was yet to be framed? Besides,
the order in some respects went beyon
d the Delhi Agreement. It certainly paved the way for more such Orders
- all with "the concurrence of the State Government", each elected
moreover in a rigged poll. Ninetyfour of the 97 Entries in the Union
List and 26 of the 47 in the Concurrent List we
re extended to Kashmir as were 260 of the 395 Articles of the
Worse, the State's Constitution was overridden
by the Centre's orders. Its basic structure was altered. The head of
State elected by the State legislature was replaced by a Governor
nominated by the Centre. Article 356 (imposition of President's Rule)
s applied despite provision in the State's Constitution for Governor's
rule (Section 92). This was done on November 21, 1964. On November 24,
1966, the Governor replaced the Sadar-i-Riyasat after the State's
Constitution had been amended on April 10, 196
5 by the 6th Amendment in violation of Section 147 of the Constitution.
Section 147 makes itself immune to amendment. But it referred to the
Sadar-i-Riyasat and required his assent to constitutional amendments.
He was elected by the Assembly [Section 27 (2)]. To replace him by the
Centre's nominee was to alter the basic structure.
Article 370 was used freely not only to amend
the Constitution of India but also of the State. On July 23, 1975 an
Order was made debarring the State legislature from amending the State
Constitution on matters in respect of the Governor, the Election Co
mmission and even "the composition" of the Upper House, the Legislative
It would be legitimate to ask how all this
could pass muster when there existed a Supreme Court of India. Three
cases it decided tell a sorry tale. In Prem Nath Kaul vs State of J&K,
decided in 1959, a Constitution Bench consisting of five judges
unanimously held that Article 370 (2) "shows that the
Constitution-makers attached great importance to the final decision of
the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by t
he relevant temporary provision of Article 370 (1) is made conditional on the final approval by the said Constituent Assembly in the said matters". It referred to Clause 3 and said that "the proviso to Clause (3) also emphasises the importance whi
ch was attached to the final decision of Constituent Assembly of Kashmir in
regard to the relevant matters covered by Article 370". The court ruled
that "the Constitution-makers were obviously anxious that the said
relationship should be finally d
etermined by the Constituent Assembly of the State itself."
But, in 1968, in Sampat Prakash vs the State of J&K, another Bench ruled to the contrary without even referring to the 1959 case. Justice M. Hidayatullah sat on both Benches. The court held that Article 370 can still be used to make orders
thereunder despite the fact that the State's Constituent Assembly had ceased to exist.
FOUR BASIC flaws stand out in the judgment. First, the Attorney-General
cited Ayyangar's speech only on the India-Pakistan war of 1947, the
entanglement with the United Nations and the conditions in the State.
On this basis, the court said, in 1968, that "the situation that
existed when this Article was incorporated in the Constitution has not
materially altered," 21 years later. It ignored completely Ayyangar's
exposition of Article 370 itself; fundamentally, that the Constituent
Assembly of Kashmir al
one had the final say.
Secondly, it brushed aside Article 370 (2)
which lays down this condition, and said that it spoke of "concurrence
given by the Government of State before the Constituent Assembly was
convened and makes no mention at all of the completion" of its work or
The supreme power of the State's Constituent
Assembly to ratify any change, or refuse to do so, was clearly
indicated. Clause (3) on the cessation of Article 370 makes it clearer
still. But the court picked on this clause to hold that since the
Assembly had made no recommendation that Article 370 be abrogated, it
should continue. It, surely, does not follow that after that body
dispersed the Union acquired the power to amass powers by invoking
Article 370 when the decisive ratificatory body was gone.
Thirdly, the Supreme Court totally overlooked
the fact that on its interpretation, Article 370 can be abused by
collusive State and Central Governments to override the State's
Constitution and reduce the guarantees to naught. Lastly, the court
ed the State Constituent Assembly's recommendation of November 17,
1952, referred to earlier, which merely defined in an explanation "the
Government of the State". To the court this meant that the Assembly had
"expressed its agreement to the continued op
eration of this Article by making a recommendation that it should be
operative with this modification only." It had in fact made no such
recommendation. The Explanation said no more than that "for the
purposes of this Article, the Government of the State means..." It does
not, and indeed, cannot remove the limitations on the Central
Government's power to concurrence imposed by Clause (2); namely
ratification by the Constituent Assembly.
The court laid down no limit whatever whether
as regards the time or the content. "We must give the widest effect to
the meaning of the word 'modification' used in Article 370 (1)". The
net result of this ruling was to give a carte blanche to the
Government of India to extend to Kashmir such of the provisions of the Constitution of India as it pleased.
In 1972, in Mohammed Maqbool Damnoo vs the State of J & K,
another Bench blew sky high the tortuous meaning given to the
Explanation. It was a definition which had become "otiose". But this
Bench also did not refer to the 1959 ruling. Cases there are, albeit
rare, when courts have overlooked a precedent. But that is when there
is a plethora of them. Article 370 gave rise only to three cases. The
first was studiously ignored in both that followed. The court found no
difference between an elected S
adar and an appointed Governor. "There is no question of such a change
being one in the character of that government from a democratic to a
non-democratic system." If the Constitution of India is amended to
empower the Prime Minister to nominate the Pres
ident as Sri Lanka's 1972 Constitution did - would it make no
difference to its democratic character, pray? To this Bench "the
essential feature" of Article 370 (1) (b) and (d) is "the necessity of
the concurrence of the State Government", not the Consti
tuent Assembly. This case was decided before the Supreme Court
formulated in 1973 the doctrine of the unamendable basic structure of
GIVEN their record, whenever Kashmir is
involved, how can anyone ask Kashmiris to welcome Union institutions
(such as the Election Commission) with warmth?
Sheikh Abdullah had no cards to play when he
concluded an Accord with Indira Gandhi and became Chief Minister on
February 24, 1975. At the outset, on August 23, 1974, he had written to
G. Parthasarathy: "I hope that I have made it abundantly clear to you
that I can assume office only on the basis of the position as it
existed on August 8, 1953." Judgment on the changes since "will be
deferred until the newly elected Assembly comes into being". On
November 13, 1974, G.P. and M.A. Beg signed "agreed concl
usions" - Article 370 remained; so did the residuary powers of
legislation (except in regard to anti-national acts); Constitutional
provisions extended with changes can be "altered or repealed"; the
State could review Central laws on specified topics (we
lfare, culture, and so on) counting on the Centre's "sympathetic
consideration"; a new bar on amendment to the State Constitution
regarding the Governor and the E.C. Differences on "nomenclature" of
the Governor and Chief Minister were "remitted to the p
rincipals". Differences persisted on the E.C., Article 356 and other
points. On November 25, the Sheikh sought a meeting with Prime Minister
Indira Gandhi. Her reply not only expressed doubt on the usefulness of
talks but also on his commitment to "the b
asic features of the State's Constitution" and to "the democratic
functioning" of the government. Hurt, he wrote back ending the parleys.
They met at Pahalgam. An exchange of letters, on February 12, 1975,
clinched the deal on the basis of the Agreed Con
This was a political accord between an
individual, however eminent, and the Government, like the Punjab Accord
(July 24, 1985); the Assam Accord (August 15, 1985); the Nagaland
Accord (November 11, 1975); and the Mizoram Accord (June 30, 1986) - e
ach between the government and the opposition. It cannot override
Article 370; still less sanctify Constitutional abuse. It bound the
Sheikh alone and only until 1977.
This was explicitly an accord on "political
cooperation between us", as Indira Gandhi wrote (December 16, 1974). On
February 12, 1975, Abdullah recorded that it provided "a good basis for
my cooperation at the political level". In Parliament on March 3, 1975
she called it a "new political understanding". He was made Chief
Minister on February 24, backed by the Congress' majority in the
Assembly and on the understanding of a fresh election soon. Sheikh
Abdullah's memoirs Aatish-e-Chinar
ord her backtracking on the pledge and the Congress' perfidy in March
1977 when she lost the Lok Sabha elections. It withdrew support and
staked a claim to form a government. Governor's Rule was imposed. The
Sheikh's National Conference won the elections with a resounding
majority on the pledge to restore Jammu and Kashmir's autonomy, which
was also Farooq's pledge in 1996. The 1975 accord had collapsed.
It was, I can reveal, based on gross error. The
Agreed Conclusions said (Para 3): "But provisions of the Constitution
already applied to the State of J&K without adaptation or
modification are unalterable." This preposterous assertion was made in
th of the Sampat Prakash case. One order can always be
rescinded by another. All the orders since 1954 can be revoked; they
are a nullity anyway. Beg was precariously ill and relied on advice
which GP's "expert" had given him. He was one S. Balakr
ishnan whom R.Venkataraman refers to as "Constitutional Adviser in the
Home Ministry" in his memoirs. It is no disrespect to point out that
issues of such complexity and consequence are for counsel's opinion;
not from a solicitor, still less a bureaucrat even if he had read the
law. Even the Law Secretary would have insisted on the
Attorney-General's opinion. Amazed at what Beg had told me in May 1975,
I pursued the matter and eventually met Balakrishnan in 1987. He
confirmed that he had, indeed, given such advice. It was palpably
wrong. The 1975 Accord is worse than useless. It is harmful to the
State's rights and interests. It has neither legal efficacy nor moral