Dr Nishakant Ojha
Article 370 was inserted in the Constitution of India at the behest of Pandit Jawaharlal Nehru to please his friend Sheikh Mohammad Abdullah who nurtured the ambition of ruling the ‘riyasat’ (state). Sheikh Abdullah hailed the insertion of Article 370 as a victory for the Kashmiris while the Indian nationalist leaders like Sardar Patel, Baba Saheb Ambedkar and Dr. Syama Prasad Mukherji opposed it. Although Article 370 is a provision to deal with J&K but this provision of Indian Constitution has been fully exploited by separatist elements within the country or outside the country to promote the feeling that J&K is a dispute and it requires the international interventions. This situation has been fully exploited by Pakistan to launch proxy war in J&K and project it as a freedom struggle world over. Right from beginning this provision was used to project J&K as separate territory in India like Separate Constitution, Separate flag, separate election procedure to Parliament, and no jurisdiction of Supreme Court Election commission and CAG in J&K. This situation has helped the agenda of separatism of elements in Kashmir as well as in Pakistan.
Political leadership in Delhi made the mistake of ignoring the real effects of Article 370. This provision camouflaged with inherent and created misinformation has promoted separatist feelings in J&K. Article 370 of the Constitution is making a mockery of secularism, nationalism and the structure of unity. This temporary constitutional provision has, in fact, been providing encouragement of feelings for the establishment of a separate nation on the basis of Two Nation theory. Article 370 of the Constitution, which has grouped Jammu and Kashmir as a self created special and different state, ridicules this declaration that J&K is an inseparable part of India. This status delinks the state from rest of the country. It won’t be an exaggeration if it is called constitutionally recognised separatism. On the basis of this “special status” people of Kashmir, Pakistani rulers and diplomats and intellectuals in the world raise volley of questions in front of the Government of India. Is accession of Jammu and Kashmir complete like other states? If the accession is complete, why then the special appeasement? Does not this clause give an opportunity to the world to doubt our honesty?
It is because of this Article that the Government of India cannot enforce any law connected with Jammu and Kashmir without the approval or concurrence of the State Government. Only defence, external affairs and communications fall in the central list. Against this Parliament has the powers to frame laws for rest of the states in the country. But Article 370 of the Constitution restricts the hands of the Union Government and Parliament in doing this in case of Jammu and Kashmir. It’s dangerous consequences have been witnessed in recent years when the law prohibiting misuse of religious places could not be extended to Jammu and Kashmir with the result the state does not come within the ambit of secularism.
J&K Government under the extended self created ambit of Article 370 has from time to time granted amnesty to such elements who are involved in Anti India activities, attacks on security forces, burning of Indian flag as well as working as over ground workers of terrorist organisations.
The President of India cannot dare to issue any order under Article 356 to Jammu and Kashmir. The President has no right to suspend his Constitution in the State. The National emergency under Article 352 of the Constitution can be extended to Jammu and Kashmir to a limited extent and the financial emergency under Article 360 cannot be enforced in Jammu and Kashmir. Under part four of the Constitution of India there is procedure for one constitutional practice, one administrative structure and one economic pattern. But under Article 370 Jammu and Kashmir has its right under its own constitution to do whatever it likes. It is because of the separate flag and separate symbol that two flags flutter on the Government buildings in the state.
Burning of the national flag is not a cognizable offence in Kashmir because there cannot be proper arrangement for the basic duties enshrined in the Constitution under which the tricolour, the national anthem and the national symbol have to be shown due respect. Under Article 370 the Indian Parliament cannot increase or reduce the borders of the state. The Union Government implements international agreements and accords under Article 253 of the Constitution but Jammu and Kashmir is beyond its jurisdiction.
Article 370 revives the two-nation theory and secures security for it in the future. On one side we proclaim in the world that in India there is no discrimination on the basis of religion, community or sect, on the other hand special facilities are being given to J&K. If these special privileges are being given on the plea that J&K is a backward area, is there no other place in India where backwardness and poverty are less important? In fact several thousand crores of rupees have been spent in Kashmir and the result is apparent. Anti-national elements are active. Instead of bringing the people to the national mainstream, we have, in comparison to other states, given unlimited rights to the people which have made them a pampered lot. People of Kashmir became suspicious about the accession and the anti- national elements got an opportunity for launching an open disinformation campaign against India. Pakistan supported these separatist organisations. The result was that Kashmiri youths picked up arms against India.
National Conference led by Farooq Abdullah and his son Omar Abdullah, both not just former Chief Ministers of the State but also former Union Ministers, had tabled a resolution in the State Assembly calling for the restoration of the pre-1953 position of the State. That status envisaged the exclusion of the jurisdiction of the Supreme Court, the Comptroller and Auditor-General and the Election Commission of India over the State. If this is not ridiculous enough, the pre-1953 situation would also seek to re-designate the Chief Minister as the State’s ‘Prime Minister’. That, in other words, was a form of sovereignty. Mr Omar Abdullah has on the floor of house of State Legislative Assembly remarked that J&K has acceded with India and not fully merged with India.
The misinterpretation and self created overreach of Article 370 has not been practised by private individuals but also Govt; institutions from time to time. The situation is so confusing that Jammu & Kashmir High Court recently held that the State enjoyed “sovereignty” because such status had been “guaranteed under Article 370” of the Constitution of India, Pakistan-based Dawn newspaper gleefully ran the report. Back home in India too, the verdict came as a booster to separatists in the Kashmir valley and perhaps even some mainstream political leaders who are never tired of using the term ‘autonomy’ as a euphemism for ‘sovereignty’. The High Court indicated that such sovereignty could not be challenged since it drew its strength and meaning from Article 370 of the Indian constitution.
The apex court cleared a myth which separatists and other like-minded people have been floating for decades i.e. The primacy of the Constitution of Jammu & Kashmir which, according to them, allowed them pretty much what they sought to do in playing around with the State’s ‘sovereign’ character. Supreme Court held that the people of the State are governed first by the Constitution of India and that the State’s Constitution was “subordinate to the Constitution of India”. Taking strong exception to the order of the Jammu & Kashmir High Court, the apex court Bench held it is rather disturbing to note that various parts of the (High Court) judgement speak of the absolute sovereign powers of the State. It is necessary to reiterate that Section 3 of the Constitution of J&K, which was framed by the Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of J&K is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment.” The contrast is interesting and a lesson for the proponents of sovereignty. The Jammu & Kashmir High Court emphasised on the non-amending character of Article 370 which, it claimed in its wisdom, provides for sovereignty, while the Supreme Court highlighted the integration of the State into the Union of India as beyond the pale of amendment.
Of course, those who wrongly boast of State’s Constitution as evidence that J&K has the status to be autonomous and sovereign, will not talk of the provisions that have finalised the integration of the State into India, and that are there in the very same Constitution of Jammu & Kashmir. The Supreme Court has left no one in doubt on the scheme of things vis-à-vis the State, when it said that the High Court had “gone out of its way to refer to a sovereignty which does not exist”. Indeed, while according importance to the State’s Constitution, the apex court made it clear that the J&K Constitution had come into being to further define the relationship between the State and the Union, but only within the parameters of J&K being an integral part of India. The apex court’s ruling, setting aside a dangerous verdict, should close the matter. Unfortunately, it will not, as both the separatists and those in mainstream politics who believe there are no red lines when it comes to furthering their divisive agenda, will continue to promote it.
There is a need of deliberations on Article 370 and it acting as an instrument of separatism. On one hand Indian Parliament passed a resolution on 22nd February 1994 declaring whole J&K as integral part of India and commitment to take back POJK but on other how such provision in the shape of Article 370 can be allowed to continue which has promoted separatist tendencies more and raised doubts about accession of J&K with India world over. This provision has already done a great loss which can be recovered only by its abrogation. Its abrogation only will put a check on such elements that have used this provision for furthering their separatist designs.
(The author is National Security Consultant)
feedbackexcelsior@gmail.com
Trending Now
E-Paper
Follow our WhatsApp channel