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An instrument of deprivation for masses in J&K

Art 370

Dr Nishakant Ojha
The State autonomy occupies a very pivotal position in a federal setup. The federal system means that there is a distribution of governmental powers between the Federal Government and the States Governments. The State of Jammu and Kashmir has a status within the Indian Constitution under Article 370. The State of Jammu and Kashmir possesses more state autonomy under Article 370 as compared to other States of Indian Union. Since the beginning of its relationship with the Indian Union, there has been a persistent demand for more autonomy by the State of Jammu and Kashmir. It has been argued time and again that the State of Jammu and Kashmir has a unique identity owing to its composite culture and a distinct political and constitutional history so it should be given more autonomy. The promoters of this idea under Article 370 has always projected it more as Centre-State relations issue and decentralisation of powers as in other States also. But it needs to be analysed that what Article 370 means in J&K. Has this Article 370 benefitted masses or not?
The right to education was made a fundamental right by Article 21-A and consequently Right to Education Act was passed by Parliament of India in 2010. But due to Article 370 this Act is not applicable in J&K. Under this act there many provisions to improve the standards of education but such is not applicable in J&K. J&K hasn’t enacted its own Act also.
Whole of India is enjoying the benefits of 73rd Amendment Act which gave constitutional status to panchayats and brought the democracy to grassroots level. Under this act panchayats have been given power to implement all the schemes of rural development and has led the empowerment of people in real terms. But this act is not applicable in J&K due to Autonomy of J&K. J&K has its own Panchayats Act which is totally different from 73rd amendment act. Under J&K act panchayats have been left at mercy of executives for their powers as well financial resources. Moreover elections are not regular and are conducted normally at the gap of 20 years.
National Commission for SC, National Commission for ST and National Commission for Backward Classes review the social, economic and employment status of these sections as well review the working of various schemes launched for their welfare. But the jurisdiction of these Commissions does not extend to J&K. So there is no monitoring of implementation of such schemes in J&K.
The political reservation available to Scheduled Tribes is available all over the country. But this reservation is not applicable in J&K.
RTI act was enacted in Centre in 2005 but in J&K it got at par with central act in 2009 only. Similarly there are many acts and schemes which are applicable in other parts of country are not applicable in J&K. It has deprived people of J&K of such benefits.
Power of CBI is derived from The Delhi Special Police Establishment Act of 1946 and thus J&K is outside the purview of CBI. Prevention of Corruption Act of 1988 act was passed to fight against corruption in Government agencies and public sector businesses in India. Due to non applicability of these laws J&K tops among corrupt States of Country. J&K haven’t witnessed any conviction of any Politician or top executive in corruption cases like other States. J&K being only one percent of total population of Country receives 10 percent of annual spending of Govt of India. Where that money has gone? Still J&K is looking for development. No accountability of decision makers due to non applicability of such laws.
The Religious Institution Act of 1988 prohibits religious institutions from allowing their premises for the promotion of political activity. But this law is not applicable in J&K.
J&K has enjoyed much more autonomy than any other state of India. Autonomy means empowerment of people and taking the democracy to the grassroots level. Has this concept of empowerment used by means of this available autonomy? There is need to have dialogue and deliberations to understand the spirit for which Autonomy has been used over all these years. Has it led to empowerment or deprivation? Can Indian State allow such Autonomy or such retrograde laws continue to persecute Indian citizens within the territory of India??
The Commissions of Inquiry Act, 1952 does not apply to Jammu & Kashmir in respect of 61 subjects in List II -State List shown in Seventh Schedule of the Indian Constitution. Some of those 61 subjects are : prisons, sale of intoxicating liquors, hospitals and water supplies. Thus, if there is any  incident in Jammu & Kashmir of definite public importance in relation to liquor sale, the Central Government cannot set up an inquiry commission into that incident.
The Protection of Human Rights Act, 1993, is another Act which does not extend to Jammu and Kashmir in respect of subjects under List II of Seventh Schedule.
The Unlawful Activities (Prevention) Act, 1967, empowers the Central Government to ban any combination or body of individuals that act in a manner intended to bring about cession or secession of Indian territory or to disrupt the sovereignty and territorial integrity of India. Any activity under section 153-A or Section 153-B of the Indian Penal Code is also defined as unlawful activity under this law. Section 153-A refers to ‘Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony’ while section 153-B refers to ‘Imputations, assertions prejudicial to national integration.’ However, activities in Jammu & Kashmir falling under these two Sections are excluded from purview of this Act because the Indian Penal Code is not applicable to that State.
The Representation of the People Act, 1950, provides for the allocation of seats and the delimitation of constituencies for the purpose of election to the Lok Sabha and the State Assemblies. It lays down the qualification of voters at such elections, the preparation of electoral rolls, etc. Its Section 13D on the preparation of electoral rolls for parliamentary rolls is not applicable to Jammu and Kashmir State.
The Representation of the People Act, 1951, provides for the conduct of elections of the houses of Parliament or of the State Assemblies; it lays down qualifications and disqualifications of electoral candidates and lists offences such as corrupt practices in such elections. In its Section on ‘Interpretation’ the meaning of the word ‘election’ is not applicable to Jammu & Kashmir State.
Constitutional Amendment of 2003
This put a ceiling on the strength of the Council of Ministers in the States to 15% of the strength of its Legislative Assembly. But in J&K it is 205 of State Legislature (State Legislative Assemble+ State Legislative Council)
In conclusion, this phenomenon of certain laws of the Indian Parliament (which is the Central or Federal authority) not being applicable at all or applicable only in part to Jammu & Kashmir State (a constituent of the Federation) is extraordinary. In the USA in contrast, each of the 50 constituent States has its own Constitution, but every Federal law is applicable to all the 50 States by virtue of Article VI of Part IV of the USA Constitution. Clause 2 of that Article, titled ‘Legal Status of the Constitution of the USA’, says “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, notwithstanding any Thing in the Constitution or Laws of any State to the contrary.”
There are several exemptions to Jammu & Kashmir from the Constitution of India which are insignificant or merely cosmetic, other exclusions are such as have given a fair amount of leeway in the governance of that State. The conspicuous ones are briefly analysed below.
* Any law of Parliament on a Uniform Civil Code or any other Directive Principles of State Policy could be deemed invalid only in Jammu & Kashmir because Article 31C is not applicable to that State.
* A law by Parliament on ‘Population control and family planning’ would not be applicable to Jammu & Kashmir as long as that item stands excluded from ConcurrentList for the State.
* While Article 172 lays down five years as the normal duration of a State Legislature, that stipulation is six years in Jammu & Kashmir as laid down in Section 52 of its State Constitution.
* Excluding Jammu & Kashmir from the application of Article 360 means the Union Government cannot give directions to that State to observe canons of financial propriety and such other measures deemed necessary when a Proclamation of financial emergency is issued under that Article.
* Refusal or failure to comply with any direction given by the Union Government under any provision of the Constitution of India applicable to Jammu & Kashmir will not be held as a misdemeanour by that State because the relevant Article 365 has not been extended to that State.
* By being exempted from the Constitutional amendment limiting the number of the Council of Ministers to 15 percent of the strength of a State Assembly, Jammu & Kashmir government continues to have the luxury of 25 Ministers when, in fact, it should have had only 13 ((15 percent of its Assembly’s strength of 87) if the amendment were extended to it. Thus, while India was rid of over 100 ministers in August 2004, thereby reducing the burden on the States across the country by an estimated Rs.250 crores by way of salaries and perks, Jammu & Kashmir State will continue to pay for the two furnished bungalows, cars, security etc. of 24 superfluous Ministers.
* Deliberately kept to the last is that exemption regarding oath or affirmation taken before assuming office. As per the Third Schedule mentioned in Article 188 of the Indian Constitution, the oath sworn by every member of the State Legislature before assuming office requires the member to “bear true faith and allegiance to the Constitution of India.” This is true of the affirmation by every High Court and Supreme Court judge as well. In Jammu & Kashmir State, however, every legislator and every judge, including the Chief Minister and the Chief Justice, is required to swear only by ‘the Constitution of the State’ as mandated in the Fifth Schedule referred to in Sections 64 and 97 of the Jammu & Kashmir State Constitution. Contrast the above dichotomy in India created by Jammu & Kashmir with the stipulation in Article VI of Part IV of the USA Constitution. Titled as ‘Legal Status of the USA Constitution’, its Clause 3 says, “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Keeping in view there is a need on Article 370 to study whether it has benefitted masses by empowering them or resulted in deprivation. Article 370 has boosted the separatist tendencies in J&K. This has helped Pakistan and other enemies of India to take benefit this situation of isolation and shield provided by Article 370 to further their agenda of proxy war in India. Article 370 has been used by minuscule political elites to further agenda and play in the hands of anti national forces. So it should be abrogated to enable the masses in all the regions of J&K to get benefited of all provisions of Indian constitution and democracy.


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