Ranbir Singh Pathania
Article 370 of the Constitution of India is, now-a-days, as much in the centre-stage, as the stories and street talks of proposed government formation in the state of J&K are. Peoples Democratic Party seems over-obsessed while tenaciously sticking to the pre-condition of seeking a written commitment from BJP seeking status quo on article 370 of the Indian Constitution.
What Article 370 is and how it can be revoked: –
“370. Temporary provisions with respect to the State of Jammu and Kashmir.
(1) Notwithstanding anything contained in this Constitution,—
(a) the provisions of article 238 shall not apply now 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………………………
….3) Notwithstanding anything in the foregoing provisions of this 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 specify: 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.”
A section of legal experts opine that the President may, by public notification under article 370 (3), declare that Article 370 shall cease to be operative and no recommendation of the Constituent Assembly is needed as it does not exist any longer. Another school of thought is that it can be amended by an amendment Act under Article 368 of the Constitution and the amendment extended under Article 370 (1).
Once there is no Constituent Assembly in place, and PDP is all-set to be part of the ruling coalition in J&K, as to how BJP Government in saddle in the Centre or 25 BJP MLAs of BJP Government can tamper with the constitutional provision irrespective of the specified constitutional mechanism. Therefore, how justified are the ‘self-created’ fears of PDP seeking a ‘written commitment’.
The situation fiddle-fits the maxim, ‘the things you less intend to do, the more you have to talk about them’.
How Article 370 harmed people of J & K: –
Legal wrangles apart, Article 370 has been a potent weapon in the hands of vested interests to block welfare and public friendly legislations from coming into force in the state of J&K. Our Panchayat Raj has a nominated chairman of District planning and development board, honarium-less sarpanches/Panches; sans a Nyaya Panchayat mechanism too. It is in the same vein that we do not have ‘Right to Education’, ‘Right to Food’ in J & K. Our RTI Act is not as potent and effective as the central RTI Act. Unlike the rest of country, we do not have a Forest Dwellers Act, which could have safeguarded the rights of the forest dwellers (Gujjars & Bakerwals) in J&K.
Also the Land acquisition laws and procedures invoked in the state of J & K are not as good as the legislations in force in the rest of the country. And when it came to applying the Central legislation of seat-freeze till 2016, no Article 370 came in the way. Fact remains that despite having bigger area and more electorate, Jammu has lesser seats in the Parliament, State Assembly and Panchayats. But justice has been delayed and rather denied to the people of Jammu while applying the seat-freeze law in J & K in a pure hush-hush manner.
B.J.P. wants remodeling and not absolute revocation of Article 370: –
Though there are some genuine concerns too pivoting around unilateral revocation of Article 370. The people of J&K possibly would not be in a position to withstand the cut-throat competition at all-India level. But the Bhartiya Janata Party had never taken an absolutist stand on the matter in issue.
If one remembers BJP’s ‘Lalkar rally’ at Jammu wherein Modi gave a clarion call for a meaningful debate on the issue of remodelling article 370. The gospel of restructuring article 370 is borne out a genuine concern for adapting the provision in tune with the changed circumstances and geopolitical-cum- socio-economic scenario.
Article 370 has been the favourite hobby-horse of Kashmiri rulers to exploit the sentiments of Kashmiris and spit unfounded venom against India. This provision, in its presnt form, has clogged economic growth of the ‘heaven-on-earth’.
The million dollar question is that whether we are for a constitutional provision which restricts economic development in a state of India?
Resistance to Article 370 during framing of Indian Constitution: –
Our constitution framers have devised a quasi-federal system with predominance of the centre. But article 370 is a deviation from the said constitutional scheme.
Looking back at how 370 was formulated despite the resistance of Sardar Vallabhbhai Patel and BR Ambedkar, the two great architects of independent India, it reflects how apprehensive they were of it. Dr. Ambedkar had clearly made it to Sheikh Abdullah, “You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India. But Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal, would be a treacherous thing against the interests of India and I, as the Law Minister of India, will never do it.”
Myth and reality about application of central laws in J & K: –
An in-depth study of the Central laws in J & K brings it to fore that 94 out of 97 entries in the Union List apply in toto in J&K. Out of 48 entries in concurrent list 26 applies in toto and 6 apply with minor modifications. And all this “so-called erosion’ of J & K’s autonomy has been during the tenure of non-BJP Governments in the centre and Abdullah-led and Mufti-participated Governments in J & K. In J& K, we never had a BJP Government.
So far as talks of ‘pre-1953 position’ and ‘self rule’ are concerned, they are but cries in the wilderness. ‘Clock cannot be put back’ was the well-considered, unimpeached and hitherto questioned opinion of a committee, framed in the backdrop of Indira-Shiekh accord, headed by Justice Devi Dass Thakur formed to study the application of Central Laws in the state of J&K. Most amusingly the NC patriarch Lt. Shiekh Mohammad Abdullah was the Chief Minister and Mufti Mohammad was the Congress Chief at that time and congress-NC coalition was in power.
Conclusion: –
A review of Article 370, by virtue of an inclusive debate should not be adviewed with unnecessary skeptism. The ‘Yugpurush’ of Indian political firmament, Narendra Bhai Modi, with ‘Sabka Vikas, Sabka Saath’ as his very hallmark, seems to be in a mood to take up the lost thread from Vajpayee’s pragmatism on Kashmir issue – redeeming Jhumuriyat, Kashmiriyat and Insaniyat.
Let’s hope and pray, the jinx breaks this time. As the maxim goes, ‘the churning is always for the nectar to rise’
(The columnist is member of J & K Legislative Assembly and practices law in the J & K High Court.)
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