Time to abrogate Art 370

Ashwani Kumar Chrungoo
Ever since the Governor’s Rule was declared in the Jammu and Kashmir State, a new debate stands unleashed regarding the options before the Government regarding the welfare of State. While many embark upon the possible improvement in the overall security scenario of the state, the others term law and order situation as the immediate priority. However, keeping in view that the aspirations of the people in regard to the development of the respective regions particularly in the regions of Ladakh and Jammu, many believe that the Governor’s rule might create new opportunities to convert the slogan of “sab ka sath sabka vikas” into a reality in these two regions as well. For some others, strong administrative measures to bring in a positive change is in the offing.
In regard to the political priorities, there is a wide debate open for certain areas of political and constitutional spectrum that might be thought of to be taken up during the Governor’s rule. The J&K Government(s), most of the political parties in the State and also some important social groups always maintained playing shy about the discussion and debate on the special status granted to the State. From the higher ups in the Central corridors of power to the State’s street discussions, the special status assumed the role of ‘touch me not’ position. Various factors earlier would give rise to a notion that talking about the so-called Special Status would be a “political blasphemy”, therefore, the discussion and debate would always be avoided.
Things started changing when the J&K Government took up the issue of Greater  Autonomy before the Union Government during the period of NDA-I rule under A. B. Vajpayee. After a great amount of debate on the issue, the idea was shelved officially by both the Governments. With the onset of the NDA-II under Narendra Modi, a new hope was created that the issue would be taken due note of by the new set-up at the Centre.  In fact, Modi’s first speech in Jammu in December 2013 referred to a debate on the Article 370 during the then ensuing elections for the Parliament. The experiment of BJP-PDP alliance in the state put heavy curtains on the possibility of a debate and discussion, leave aside the review of the Status, Art 370 and Art 35A.
Thus four years passed by and the lessons that are carried include that the new elections for the Parliament are supposed to be fought in 2019 on a very clear agenda of nationalism versus everything else. Article 370 and Article 35A have attracted a national level attention due to a number of reasons for the last a couple of years. Kudos go to the activism of individuals and organisations who spearheaded campaigns to highlight the issues pertaining to the introduction and abolition of the controversial Articles of the Indian constitution.
It was after a series of debates in the Constituent Assembly of India that Article 370 was finally adopted by the members of the Assembly. There were heated discussions and debates on the issue in the Constituent Assembly between various members representing different schools of political thought. Dr. B. R. Ambedkar, Sardar Vallabbhai Patel, Dr.S.P. Mukherjee, Dr. Bardoloi and many others opposed the provision vehemently. Pt. J. L.Nehru, Sheikh Abdullah and Abdul Kalam Azad took a very stern stand on the issue and started lobbying on the issue outside the Constituent Assembly. They took Dr.Rajendra Prasad (who was the Chairman of the Assembly), Gobind  Vallabh Pant and some other important members into confidence and used the idea of “Temporary Provision” as the heading of the Article as a bargaining chip against the members who kept their resistance in tact till the adoption of the Constitution in November 1949.
Article 35A was not a part of the Constitution that was adopted by the Constituent Assembly and implemented with effect from 26th January 1950. The coveted Article was brought later by the Government of India through a clear manipulation of the position that its members held in the polity of the nation. The Art 35A was brought through a President’s promulgation without any notice to the members of Parliament or to the Supreme Court of India. Article 368 (2) of the Constitution of India gives all important Constituent Powers to the Parliament. It clearly says, “Power of the Parliament to amend the Constitution and procedure therefor an amendment of this constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill”.
In this case, the Government of India brought President’s (Amendment to Constitution) Order 1954 thereby introducing Article 35A without it being presented to the either House of Parliament. So to say that the earlier published copies of the Constitution circulated to the members of Parliament and the public did not carry any reference to the Article 35A. Even Judges and Law practitioners of the Supreme Court of India and the High Courts expressed their innocence about the Article till recently. The Order of the President signed by Dr.Rajendra Prasad at the behest of the Government was a clear fraud on the Constitution, Parliament and the Supreme Court of India which is empowered to interpret the Constitution. Some supporters of special status to J&K State term Article 35A as the soul of the Article 370. What they ignore, unfortunately, is that Article 370 existed for five long years without its so-called soul (Article 35A).
Since the matter of Article 370 and Article 35A is a matter of great public interest at a national level, any kind of a decision by the Supreme Court on these two Articles carries a great weight. In case, the Apex Court eventually expresses the view that the Order of 1954 was ‘right’, the Government of the day can take the same route to annul it forthwith keeping in view the composition of the polity in general and the position of the Constitutional authorities. And in a situation, if the Apex court dismisses the Order that was brought through back door in 1954 without any reference to the Parliament, the “fraud on the constitution and the Parliament” will simply become a history of the past. However, it will bring forth the ‘way, manner and style’ in which the Governments were run by the so-called democrats, freedom fighters and makers of the constitution when they were given the chance by the people to do so.
Article 35A is simply a ploy to keep Indian masses away from Jammu & Kashmir State and simultaneously allow the people of Jammu and Kashmir to enjoy anywhere in India asfree citizens of the nation. It undermines the issues pertaining to the legal rights and fundamental rights granted to the citizens of India, and is also gender biased thus anti-thesis of the Article 14 of the Constitution. Fundamental Rights as enshrined in the constitution which have a clear impact of Universal Declaration of Human Rights nullify any discrimination on the basis of gender. Article 35A of the Constitution is in contravention of Article 14 of the Indian Constitution and also the Section 1 of the J&K Constitution. Normally, it cannot withstand the legal and constitutional scrutiny in a Court of law. Article 370 is viewed in context of Article 35A which makes both the Articles subsidiary to the scheme of things in contravention of the concept of fundamental rights.
The Governor as per the J&K Constitution (Section 92) assumes the role of Legislature as well as the Government. By virtue of powers vested in the Governor in case of Jammu and Kashmir, the Governor can send an appropriate recommendation from the State to the Union of India for the abrogation of the Article 370. The Parliament in appreciation of its Constituent powers as vested by Article 368 can ratify the Governor’s recommendations when they are presented appropriately through a Comprehensive Bill. Thus annulment of Article 370 is not a big deal. Yes, its political fall out  might be there for anyone to comprehend.
Kashmir has witnessed a lot of upheaval over the last three decades. One cannot visualise anything more nasty happening in Kashmir when Ladakh and Jammu regions and the community of Hindus of Kashmir are overwhelmingly with the idea of abrogation of the Article 370. The responsible higher-ups in the echelons of strategy, law & order and defence have made categorical assertions a number of times, overtly and covertly, to the effect that the State apparatus is capable enough to manage the affairs in any such eventuality. Moreover, Kashmir has already passed through the worst and there is nothing left that can be called more than the worst. The Parliamentary Elections of 2019 should not be seen as an impediment in this context and it needs to be considered as an opportunity to undo the injustice with the nation and the people. It is also an opening precisely for what could not be done for the last seven decades.
The Government of India and the BJP have a golden opportunity to rewrite the history that awaits an auspicious stroke of pen to carry over the golden phase of destiny to the generations to come. Who else other than the towering personality of India and the mass leader called NarendraModi knows it better……!
(The author is the President of Panun Kashmir)