DEBATE, EXPOSE AND DISCREDIT Monday, 14 July 2014 | KG Suresh | in Oped The apologists of Article 370 argue that the provision has nothing to do with laws pertaining to permanent residents of the State. There cannot be a more fallacious argument than this. Yet, it has been allowed to prosper in the guise of protecting secularism Much brouhaha was created following the remarks on Article 370 by Minister of State in the Prime Minister’s Office Jitendra Singh, soon after the Narendra Modi Government assumed office at the Centre. Though the Minister later clarified his remarks, sharp reactions continued to pour in from the apologists of the divisive provision, which deprives the citizens of Jammu & Kashmir of some of the fundamental rights enjoyed by their counterparts in the rest of the country. Abrogation of the controversial constitutional provision has been one of the core issues of the BJP since its inception as also during its earlier avatar as Bharatiya Jan Sangh. In the run-up to the election, Mr Modi had called for a debate on the issue. In fact, BJS founder Syama Prasad Mookerjee died as a detainee on June 23, 1953, under mysterious circumstances after he was arrested while crossing the Kashmir border, opposing the Congress Government’s decision to grant special status to the State with its own flag, Prime Minister and Constitution. “Ek desh mein do Vidhan, do Pradhan aur Do Nishan nahi chalega” (A single country can’t have two Constitutions, two Prime Ministers, and two national emblems).was his slogan. The Abdullahs of Kashmir who have of late threatened to secede from India if the Article is revoked, are deliberately misleading the people of India on the special provision. To begin with, the Abdullahs know very well that Article 1 of the Constitution of India declares India to be a Union of States as specified in the First Schedule, which contains the lists of States and Union Territories and includes the State of Jammu & Kashmir as part of India. The same position finds reflection in Section 3 of the Constitution of Jammu & Kashmir which declares the State of Jammu & Kashmir to be an integral part of the Union of India. Any effort to create doubts with regard to the integration of J&K with India is contrary to the aforesaid provisions. Hence, it would be a totally invalid argument to say that Jammu & Kashmir is part of India only because of Article 370. Coming to history, the State acceded to India on October 26, 1947, with the execution/signing of Instruments of Accession by the then ruler of the Jammu & Kashmir and its acceptance by Governor General Lord Mountbatten, even as Pakistani tribal raiders were invading the State. The advocates of Article 370 among the Indian intelligentsia appear to be unaware that the Instruments of Accession which was signed by the ruler of that State was identical to the Instruments of Accession signed by the other rulers of the States which had acceded to the Union of India. While in the case of other States, the Constitution of India ipso facto applies to the State, Article 370 was deliberately introduced to protect the provisions of the Instruments of Accession in a different manner so far as it pertains to the State. This differential treatment to the Instruments of Accession by incorporating the temporary provision of Article 370 has led to multifarious problems including a sense of alienation among the people of the State, particularly in the Muslim majority Kashmir valley. The apologists of Article 370 argue that the provision has nothing to do with laws pertaining to permanent residents of the State. There cannot be a more fallacious argument than this. The Constitution (Application to Jammu and Kashmir) Order, 1954, was issued saying that in exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu & Kashmir, is pleased to order … (j) After article 35, the following new article shall be added, namely:- “35A. Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu & Kashmir, and no law hereafter enacted by the Legislature of the State, — (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu & Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects — (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.” It was under this Article that Jammu & Kashmir was allowed to formulate discriminatory laws for the residents of the State as against the fundamental rights guaranteed to the citizens of India. Another outrageous argument dished out is that Jammu & Kashmir’s laws are not violating the fundamental rights of Indian Citizens since the State has a separate Constitution. However, the fact remains it is not so due to a separate Constitution but the fact that the State had been allowed by the Union Government to violate some fundamental rights of Citizens of India and provisions as contained in provisions like Article 16. The Jammu & Kashmir Constituent Assembly incorporated in the State Constitution discriminatory sections like Section 51 (candidature for J&K Legislature), Section 127 (employment in Jammu & Kashmir Government institutions) and Section 140 (voter eligibility for Assembly election) under the cover of Article 35A of the Constitution of India. Thus, the power of Parliament to enact law/Acts under Articles including 16 and 19 was handed out on a platter to the Jammu & Kashmir Constituent Assembly/ Jammu & Kashmir Legislature under Article 35A. Property rights of Indian citizens who do not hold Permanent Resident Certificates of Jammu & Kashmir has been done away in a very concealed manner by referring to existing laws coming from the Maharaja Government. It is indeed surprising that the advocates of Kashmiri identity do not realise that the highly significant Article 35A has not been kept in the body of the main Constitution but in its Schedule, by way of design or otherwise, and as such has been less commented upon despite the fact that it is a tool of oppression which has been created under Article 370. In fact, Article 370 has provided scope for injustice to the residents of Jammu & Kashmir and has proved to be a stumbling block in the way of the progress of the State at par with other States of the Union. There are equally important issues related to women’s rights etc at stake. Though Article 370 was conceived as a temporary provision, its supporters argue that in the absence of a Constituent Assembly, the recommendation to the President for its abrogation as required under Clause 3 cannot be made. Such critics need to be told that Article 368 (amendment of Constitution of India) does not provide any ultimate immunity to Article 370 and, therefore, it can be modified/amended/abrogated as per constitutional provisions. Moreover, under Article 368, the procedure for amendment can also be modified. More importantly, members of the Constituent Assembly of Jammu & Kashmir did not disperse; only the function they were performing ended and the members stayed and functioned thereafter to work as the Legislative Assembly and to handle the legislative affairs of the State as per the State Constitution. Article 370, therefore, is not about Kashmiriyat or identity. While abrogation may not be immediately possible, it is important that the country debates this issue extensively and does not dismiss it merely as a Hindutva agenda. (The author is Senior Fellow and Editor with the Vivekananda International Foundation)
Posted on: Mon, 21 Jul 2014 15:17:45 +0000
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