Justice Sawant on Article 370

PB Sawant, a 90 year old former Supreme Court Judge, writes in the Indian Express, to support the contention that the abrogation of article 370 is illegal

The J&K state was never a part of this country, before Maharaja Hari Singh signed the Instrument of Accession on March 17, 1948, which gave this country a legal access to that state for the first time.

This is nonsense. Kashmir was part of the British Raj. Nepal was independent. Kashmir was not.  

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.

That Instrument of Accession may have been mentioned conditions. But, it is an indisputable fact that all the Instruments of Accession signed by various Princes contained provisions which were subsequently breached by Acts of Parliament. Under Article 245,
(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State

Both houses of Parliament have passed the J&K Reorganization Bill. There can be no doubt that what has happened is perfectly legal.

What is more, sub-clause 3 of the 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.

That Constituent Assembly was dissolved long ago and the Supreme Court accepted that its power had passed to the Governor. Thus, it was easier to amend the constitution for J&K by Presidential order than it would have been for the rest of India. It is no wonder the Center thought it worthwhile to keep up its 'special' status.

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 Parliament purported to declare that the said Article shall not be operative, they did not follow the procedure laid down in Article 370.

However, the Supreme Court had confirmed that Presidential Orders could alter the Kashmiri constitution any which way.

Hence, the said Article remains in our Constitution intact without any harm to it.

Quite true. The Article has been used to nullify whatever it signified to its votaries.

The propaganda carried out by the government that the said Article has been repealed is, therefore, obviously misleading.

No. The propaganda was accurate. The Muslim majority of the Valley can't dominate the State anymore.

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 Constitution Assembly of J&K state, acted upon by the President of India.

However, that power of the Constituent Assembly passed to the Governor if the Legislature was in abeyance.

Those who clamour for the abrogation of Article 370 unilaterally by this government, forget the elementary fact that this country got legal right to enter the state only because of the conditional political pact of accession.

Much good this 'legal right' did it in the case of Pak or Chinese occupied portions of the State. The law may be an ass, but even an ass understands the stick.

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.

So what? Either the army can repel invaders or it can't. If it can't Indian rule in the area will collapse irrespective of 'legal rights'.

It is unfortunate that this government, for reasons best known to it, has indulged in the present misadventure which is bound to boomerang.

How? Will Pakistan launch another War which it is bound to lose? What about China? Do they really want to risk being nuked?

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.

Sure they can! Just ask the Tibetans. Those discontented with Indian rule may amount to at most half a percent of India's total population. History and common sense tells us that the frustration of even five or ten percent of a population has zero effect. Compared to what the Pakistani Army faces in Balochistan, India's task is a peace of cake.

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.

Nonsense! If you make your money by being a nuisance, you have an incentive to maximize your nuisance value.

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.

The BJP will do that and fail in the Valley. Ladakh and Jammu, however, will do well.

To our brothers and sisters in Kashmir, we should appeal not to mistake the government for the people of this country.

Why? Will the people of India start stone-pelting in solidarity with the deranged youth of the Valley? Kashmiris know very well that their kids get attacked if they express seditious sentiments on campuses in the rest of India.

They should believe in our goodwill and fraternity for them, notwithstanding the damage done to it by the present misadventure of our government.

But if they are so credulous, why should they not believe that the Islamic Caliphate will soon conquer India and America and China? Furthermore, martyrdom in that cause will get them lots of virgins in Heaven.

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.

It is true these Kashmiri friends of the ex-Judge got away with ethnic cleansing of Hindus. But, they won't be safe if they target the Indian Army. They will be killed. Why try to delude people who have delusions enough of their own?

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.

If you get paid money for stone-pelting and no other jobs are available because of the terror tactics of the militants, why not throw stones? The only reason can be- not getting paid while being blinded by pellet guns.

A merger with Pakistan will land them under military dictatorship from which the Pakistanis themselves have been suffering, from the country’s inception.

How is this 'merger' supposed to happen? Pakistan is too weak to take the area by force. India would rather change the demographics of the valley than hand it over.  Kashmiris know this. However, they are heavily dependent on money from the Center, precisely because of their nuisance value, and naturally resent their inability to rise up by their own efforts.

We consider Kashmiris as our integral part. Their life and culture are a precious jewel in the crown of our cosmopolitan culture.

The trappings of the American way of life and European origin science and culture are precious jewels in the crown of our cosmopolitan culture. Chinese and Japanese martial arts too are admired and imitated in every town in India. Kashmiri or Manipuri or Tamil or Bhojpuri culture are material for vulgar comedy. Why? India is, by and large, very very poor. Those who are poorest are those whose crowns are adorned with the precious jewels of indigenous culture. That is why we make a point of pretending not to know our own mother tongues. A Pakistani Professor of Punjabi Literature once said to me that he and his wife raised his children to speak Urdu, not Punjabi. They in turn were raising the grandchildren to speak English not Urdu. In my turn, I described an orthodox neighbor of my grandmother's in T.Nagar, Madras. The cup of their joy overflowed when at last they were visited by a grandchild who spoke only demotic American and who treated them like shit because, so she said, that's what they smelled off.

There are strong affinities between us, and we love and respect them as our brothers and sisters.

OMG! Is this senile cretin quoting one of Modi's speeches?

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.

Is it just me, or does reading shite like this make you want to secede not just from the Indian race but the entire Human Species?