BJP has backed out from abrogation of Article 370. The solution involves greater liberty for ALL Indians.

A few days ago, BJP President Rajnath said, “J&K is a very serious, very sensitive region for us … If J&K develops because of Article 370, then we have no objection in keeping it”. [Source]

What is Article 370? It says:

1. Notwithstanding anything contained in the Constitution:

a. the provisions of article 238 (now repealed) shall not apply in relation to the state of Jammu and Kashmir,

b. the power of parliament to make laws for the said state shall be limited to;

i. those matters in the union list and the concurrent list which, in consultation with the government of the state, are declared by the president to correspond to matters specified in the Instrument of Accession governing the accession of the state to the dominion of India as the matters with respect to which the dominion legislature may make laws for that state; and

ii. such other matters in the said Lists, as, with the concurrence of the government of the state, the president may by order specify.

Explanation: For the purpose of this article, the government of the state means the person for the time being recognized by the president as the Maharajah 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, 1948;

c. the provisions of article 1 and of this article shall apply in relation to this State;

d. such of the other provisions of this constitution shall apply in relation to that state subject to such exceptions and modifications as the president may by order specify i. Provided that no such order which relates to the matters specified in the instrument of accession of the state referred to in paragraph

(i) of sub-clause (b) shall be issued except in consultation with the government of the state:

ii. Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of the government.

2. If the concurrence of the government of the state referred to in paragraph

(ii) of sub-clause (b) of clause

(1) or in second proviso to sub-clause

(d) of that clause be given before the constituent assembly for the purpose of framing the constitution of the state is convened, it shall be placed before such assembly for such decision as it may take thereon.

3. Notwithstanding anything in the foregoing provisions of the 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 notify:

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.

4. In exercise of the powers conferred by this article the president, on the recommendation of the constituent assembly of the state of Jammu and Kashmir, declared that, as from the 17th day of November, 1952, the said art. 370 shall be operative with the modification that for the explanation incl.In exercise of the powers conferred by this article the President, on the recommendation of the constituent assembly of the state of Jammu and Kashmir, declared that, as from the 17th day of November, 1952, the said art. 370 shall be operative with the modification that for the explanation in cl.(1) thereof the following Explanation is substituted namely:

Explanation: For the purpose of this article, the government of the state means the person for the time being recognised by the president on the recommendation of the legislative assembly of the state as the Sadar-I-Riyasat of Jammu and Kashmir, acting on the advice of council of ministers of the state for the time being in office.

Article 370 comes under Part 21 of the Constitution which contains numerous temporary and transitional provisions, e.g.:

MY POSITION ON ARTICLE 370 AND OTHER SPECIAL PROVISIONS

I explained my position, derived from first principles, in an article that I wrote for Freedom First in January 2011, entitled, ‘Ensuring greater liberty in Kashmir‘. Let me extract key points:

On Kashmir, a matter of vital significance to the world, it is important to not focus on any legalities or technicalities but to revert straight to the basics.
 
Kashmir’s territory
No nation can hope to defend the freedoms of its citizens without first securing its territory. National boundaries are, however, only rarely created by civilized debate. In most cases, brute force and physical possession are its markers. A nation that loses physical control over land loses it for ever. History moves on.
 
When the Muslim ruler of Hindu-majority Junagarh acceded to Pakistan, Indian forces took it over and held a plebiscite in 1948 to provide ‘legitimacy’ (Note, however, that only possession matters, so this idea of a plebiscite is a desirable but not necessary condition of national territory). India also rejected the Nizam of Hyderabad’s independence dreams, and took it over.
 
In Kashmir, however, things went badly wrong. After dithering for months, by which time chaos and anarchy had set in, the Hindu raja of Muslim-majority Kashmir fled Srinagar, acceding Kashmir to India. But his action was devoid of any implications for when he did not control the Kashmir valley, how could he possibly hand it over to anyone? When Nehru flew planes into Srinagar and took over the valley, the matter should therefore have come to a close.
 
But then Nehru quite unnecessarily lodged a complaint with the UN, claiming the entire Kashmir territory (territory that India has not physically controlled even for one instant). He also committed unnecessarily to a plebiscite in Kashmir. Things got murkier when J&K was allowed its own constitution and Article 370 of the Indian Constitution gave Kashmir a privileged status.
 
But things have dramatically changed. Both nations are now nuclear states. It should be obvious (unless people are willing to risk mutual assured nuclear destruction) that all options on the boundary have now been closed. Pre-nuclear era treaties and commitments are worthless and the LOC cannot be budged except at grossly unacceptable cost.
 
Some Kashmiris, looking for a way out, still ask for an independent state. But they should realize that this option is entirely off the table. Pakistan will never allow this to happen (after all, the “K” in its name comes from Kashmir), and India is aware that China – with its menacing control over the Karakoram highway – will use defenceless Kashmir to threaten India. This means that India can never afford to have an independent Kashmir.
 
So what is to be done? The most logical solution is for India to withdraw its complaint to the UN and recognize Azad Kashmir provided that Pakistan (a) agrees to recognize the LOC and that Kashmir is an integral part of India, (b) totally stops aiding and abetting terrorist activity in Kashmir, and (c) works constructively towards trade and cultural relations with India. Should this happen, the people of Kashmir, who are fed up with endless violence, will find at least some respite.
 
However, this won’t happen easily. It is not in Pakistan’s interest to resolve the Kashmir issue. If this issue disappears then Pakistan will have one fewer reason to exist – further deepening its already severe existential crisis. Therefore Pakistan is likely to continue terrorising Kashmir.
 
One plausible way to achieve this is to improve the governance in Kashmir to such an extent that Muslims in India (and particularly in Kashmir) will become wealthy and will thereafter themselves throw out the terrorists sent by Pakistan. But this is further complicated by political parties like BJP that keep stoking communal conflict and promoting Hindutva. Such parties only strengthen the hand of the Pakistani generals and create doubt in the minds of Kashmiri Muslims.
 
Unless all political parties in India agree to separate religion from political discourse, resolving the territorial problem in Kashmir will remain a distant dream.
 
Kashmir’s people
Despite all these complications, territory is a relatively minor matter. Nations exists for the sake of the people, not the other way around. Therefore Kashmiris must want to live in India: and by that I mean all Kashmiris – not just those who work for the J&K government or the Kashmiri Pandits or the Hindu and Buddhist residents of Jammu and Ladakh.
 
For that to happen genuine freedom must be ensured. True, the J&K constitution guarantees civil and political rights, but the India itself is unfree, so how can J&K experience freedom? The Indian constitution violates our freedoms in innumerable ways (as shown in my book, Breaking Free of Nehru); and governments in India use an archaic colonial governance system for their socialist ends. The end product is a horribly corrupt, statist society.
 
India ranks at the bottom of the Third World on the Heritage index of economic freedom – well below Botswana, Uganda, Namibia, Rwanda and Tanzania, and below Bhutan, Pakistan and Sri Lanka. Even Pakistan offers more economic freedom than India. Indian misgovernance has surely increased secessionist demands; demands that Kashmiris would have otherwise snubbed. With such deplorable governance, how can we prevent Kashmiri youngsters from being attracted to Pakistani propaganda?
 
The solution: freedom and good governance
Kashmir’s solution boils down to freedom and good governance. And while Article 370 must be abrogated, it is best done as part of a liberation package for the entire country.
 
This packages should ensure that all Indians are treated equally (discrimination such as reservations must go); poverty is eliminated; corruption is reduced to the unavoidable minimum; freedom (subject to accountability) is ensured; and restrictions on movement and settlement within NE India and tribal areas of India are abolished – along with the abrogation of Article 370.  
 
Once genuine freedom and good governance are available in Kashmir, anyone who talks about secessionism will be ignored by the people. And then the Kashmiri Pandits (and others who have been forced to leave) will be able to return to their homeland, marking the end of this tragic and bloody chapter in India’s history.

SUMMARY OF MY POSITION TODAY

I believe the BJP’s solution has always been related ONLY to territory, not to the people of Kashmir. They don’t understand nor care for liberty. Therefore, they don’t mind changing their position regarding Article 370, for the excuse “If J&K develops” is a lame excuse. This is NOT how J&K can develop. It needs to be fully integrated into the fabric of India, and it is crucial that people from all over India be able to live anywhere in India.

What is needed therefore is a COMPREHENSIVE LIBERATION PACKAGE or SOLUTION which involves genuine liberty for all Indians, and genuine good governance all over India. Thereafter, article 370 (and most other special or transitional provisions) should be simultaneously abolished.

The outline of the liberation package is provided in BFN. It should not take more than three or four years to implement most of it. Once the Indian government has become small but strong, it will be ready to create ONE India.