Remove Article 370 , let's make election agenda ! Remove Article 370 and integrate kashmir into India .
The indeterminate life of Article 370, I
What is the time-span of the word 'temporary?'
Is it one week, one month, one year or one decade? Judging by the
indifference of the National Commission to Review the Working of the
Constitution towards 'Temporary, Transitional and Special Provisions'
contained in Part XXI of our Constitution, even half a century would
seem to justify the label of 'temporary.' Consequently, NCRWC's
recommendations to the government early last month didn't contain
anything that would disturb the status of Article 370 which — applicable
exclusively to Jammu and Kashmir State — has remained a "Temporary"
provision right from the time our Constitution became fully effective
from January 26, 1950.
This indeterminate life of 'Temporary'
Article 370 is in sharp contrast to the 'Temporary' power given to
Parliament by Article 369. The latter permitted Parliament to make laws
on certain subjects that were otherwise outside its jurisdiction, but
this legislative power was to last only for the 'temporary' period
specified by the Constitution framers as being of 'five years from the
commencement of this Constitution.' However, the 'Temporary' Article 370
— meant for J&K alone — was not given such a straight jacket of
time. That conspicuous inconsistency between two 'temporary' provisions
of the same Constitution seems to have been bypassed by NCRWC's wise
men.
Now the fundamental reason for an
exclusive constitutional Article for J&K state was the Schedule
annexed to the Instrument of Accession signed by that state's Maharaja
on October 26, 1947. That Schedule specifically provided that the
Dominion of India, to which the state had acceded, would be empowered to
make laws for J&K only on matters pertaining to defence, external
affairs and communications. And clause 7 of the Instrument of Accession
itself did not bind the J&K state to accept any future Constitution
of India.
The result of that clause 7 was the
separate constitution of J&K enacted on November 17, 1956 through an
elected State Constituent Assembly. And the outcome of the above
mentioned Schedule was Article 370 which, in essence, lays down that
i . Laws of the Indian Parliament relating to matters of defence, external affairs and communications shall apply to J&K state only after consultation with the government of that state
i . Laws of the Indian Parliament relating to matters of defence, external affairs and communications shall apply to J&K state only after consultation with the government of that state
ii.
Parliamentary laws on subjects other than those mentioned in the
Schedule shall apply to J&K only with the concurrence of the
government of that state, and
iii.
The provisions of the Constitution of India shall apply to J&K
'subject to such exceptions and modifications as the President (of
India) may by order specify.'
The result of the above hard-core of
Article 370 has been two-fold. One is that several laws of the Indian
Parliament have not been made applicable to J&K although the
latter's constitution proclaims through Section 3 that the state 'is and
shall be an integral part of the Union of India' — a proclamation that,
moreover, is beyond constitutional amendment by the state legislature
and one that India stresses, but not often enough, in its dialogue with
Pakistan as well as the rest of the world.
As a consequence of Article 370, some
important laws of India that are not in force in J&K state are the
Indian Penal Code, 1860, the Urban Land (Ceiling and Regulation) Act,
1976, the Prevention of Corruption Act, 1988 and the Religious
Institutions (Prevention of Misuse) Act, 1988. This blatant
discrimination between J&K and all other states is patently absurd.
Whatever the original raison d'etre for such pampered treatment to
J&K, it is a colossal failure of the Indian government not to have
persuaded J&K state to fall in line over a 'temporary' arrangement;
it also represents a cussed obstinacy of the J&K authorities in
insisting on preferential treatment even after a 'temporary' period of
52 years. Can you imagine any federal law of the USA not being
applicable to any of its 50 states? And remember, several states in the
USA also have their own constitution, separate from the American
constitution.
On the Constitution side, the position
is equally absurd, obnoxious, with regard to J&K. Space constraints
do not permit elaboration of the several constitutional provisions which
accord J&K a separate, preferential treatment in comparison with
the other states of India. Suffice it to say that the sum of these
exceptional provisions has led to the conclusion that 'the state (of
J&K) has a much greater measure of autonomy and power than enjoyed
by the other states.' (Indian Constitutional Law by M P Jain, fourth
edition, reprint 1994, Wadhwa & Company, Nagpur, pg. 435).
And yet, we now have Omar Abdullah
demanding pre-1953 autonomy for J&K. It is truly 'like father like
son;' or, really, like grandfather like father like son. J&K's craze
for an ineluctable status in India just does not go, whatever its
hopeless economic situation caused by hopeless misgovernance and
whatever the severity of grievances of Jammu and Ladakh districts
against the overpowering dominance of politicians ruling the Kashmir
valley. And remember, Jammu and Ladakh are large districts unlike
'Kashmir' which is neither a town nor a district.
Nevertheless, at least one
discriminatory constitutional provision for J&K needs to be
juxtaposed with the discrimination of Article 370.
Under Section 6 of the J&K
constitution, special rights and privileges are permitted to be granted
by law to a category called 'Permanent Residents' — a category that's
been constitutionally defined in such a manner that Indian citizens from
other states of India and thousands in J&K itself just cannot
fulfill that definition. One such privilege allowed by J&K
legislation is that of permitting only 'Permanent Residents' to acquire
immovable property in the state.
As a result, no private sector
industrialist worth the name from outside J&K has set up shop there.
There's that case in 1985 when a hue and cry was raised after 32
members of the All-India Services formed a cooperative housing society
and got it registered. One accusation was that Article 370 had been
eroded. Such indeed was the bitter opposition in the state assembly and
elsewhere that the proposal was ultimately dropped — the elite IAS, IPS
and IFS cadres of the Government of India had been denied residential
plots even as members of a cooperative society.
Further, there are literally hundreds
and hundreds of those who have settled down in J&K for years
together but are nevertheless ineligible to vote in the election to the
state assembly or local bodies and are also debarred from securing
employment in certain sectors — all because they are not 'Permanent
Residents' as defined by the state constitution.
Other such examples of how Article 370
'suffocates the very idea of India and fogs the very vision of a great
social and cultural crucible from Kashmir to Kanyakumari' have been
cited by Jagmohan in his book My Frozen Turbulence In Kashmir (Allied
Publishers Limited, second updated edition, April 1992).
Jagmohan's book, be it noted, was based
on the experience of his two tenures as the governor of J&K while
being a civil servant and before he became part of the BJP fraternity.
However, it is with the above perspective of his that the BJP has been
demanding the abrogation of Article 370. But the Congress and all other
self-styled saviours of the nation's minorities have interpreted that
demand as being anti-Muslim in the Muslim-majority state; these great
pretenders of 'secularism' have never cared to explain how, in the name
of Christ or Marx or both, that community stands to lose without the
alleged protection of Article 370.
The controversy has been long and
belligerent enough to have warranted a serious study of facts and
figures by NCRWC. If Jagmohan's analysis was found convincing, the NCRWC
should have had the courage to recommend the abrogation of Article 370.
And if they had believed that Article 370 had its indelible place in
our constitutional framework, the least they could have done was to give
our constitution a cosmetic face-lift by converting that Article's
'Temporary' status into one of a 'Special Provision' as has been given
to the state of Nagaland (Article 371A), the state of Assam (Article
371B), the state of Manipur (Article 371C), the state of Sikkim (Article
371F), and the state of Arunachal Pradesh (Article 371H).
Instead, NCRWC sat on the fence of
silence. It shut out Article 370 altogether, in dereliction of its duty
of studying how the ideas of our founding fathers had worked, or not
worked, on the ground over as much as half a century of time, and not
over a 'temporary' period of one week, one month, one year or even one
decade.
Along with its failure to recommend a
landmark step forward on the definition of 'secular' in our
Constitution's Preamble and on the imperative need to enact a uniform
civil code as mandated by Article 44, the NCRWC's inaction on Article
370 represents a hat-trick of victims it claimed during its two-year
stint at the crease.
While the separatist psyche generated in
Jammu & Kashmir by Article 370 has been pernicious, its
constitutional effects have been perverse — an aspect which no one, it
appears, has detected, leave alone debated.
Start off with the fact that reportedly
the longest constitution in the world — ours — is not exhaustive enough
to show the whole constitutional framework of the Indian nation. This is
not an irresponsible statement.
Buy a standard book on the Constitution
of India and you will find that the constitution of J&K state is not
mentioned in it although, it will be recalled, such a separate
constitution was enacted on November 17, 1956, because the state was
entitled to it under the terms of the Instrument of Accession. The
absurd result is that the lay Indian reading his national constitution
will not know just what its relation is with the state that is 'an
integral part' of his country.
Next, a note of 'explanation' in Article
370 says, 'The Government of the State (of J&K) means the person
for the time being recognised by the President as the Maharaja of Jammu
and Kashmir acting on the advice of the Council of Ministers…' Since the
J&K Constituent Assembly abolished hereditary rulership in 1952,
what, pray, is the 'maharaja' doing in the Constitution of India in
2002?
A constitutional counsel will stand up
and say the 'maharaja' was replaced by 'sadar-i-riyasat' in a
presidential order issued under the mandate of Article 370. True, but
how can the 'sadar-i-riyasat' be acceptable to the reader in 2002 when
there is no such authority but only its equivalent, viz the state
governor? Another expert will then tell you that in November 1952 the
word 'governor' did, in fact, replace the phrase 'sadar-i-riyasat'.
Fine, but why doesn't 'governor' figure in Article 370 of our
Constitution that's read in 2002? And do you know who issued that order
of replacement? It was the ministry of law! Which country allows a major
dignitary of state to be re-named in its constitutional document by a
mere bureaucratic fiat?
There's more — and it's not cosmetic.
Under Article 370, the President has issued, by last count, 43 orders,
each known as 'The Constitution (Application to Jammu & Kashmir)
Amendment Order'. Some of them have brought about significant changes in
certain provisions of the Indian Constitution in their application to
J&K. The list is too long to be detailed here, but the following are
two examples from the order that repealed the one of 1950 and came into
effect from May 14, 1954:
An addition to Article 3 specifying that
'no Bill providing for increasing or diminishing the area of the State
of Jammu & Kashmir or altering the name or boundary of that State
shall be introduced in Parliament without the consent of the Legislature
of that State'.
Addition after Article 35 of a new article providing that none of
certain specified laws pertaining to J&K's 'permanent residents'
(defined in section 6 of the state constitution) 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 the
Indian Constitution's Part III dealing with fundamental rights.
Do you know that both these far-reaching exceptions to the country's
constitutional framework just do not figure in the officially published
Constitution of India? In fact, none of the contents of the said 43
constitutional orders of the President form part of the official
Constitution. Why? The answer will stun you.
In July 2000, this writer purchased The Constitution of India with
selective comments by P M Bakshi, a former member of the country's Law
Commission. It was the book's fourth edition, published in January 2000
by the reputed firm of Universal Law Publishing Co Pvt Ltd, New Delhi. I
wanted to understand the constitutional procedure for bringing about
the much talked about demand for trifurcation of J&K.
Actually, I was seeking corroboration of
what Dr A S Anand, a former chief justice of India, had stated in the
1998 edition of his book on the J&K constitution. He had mentioned
that, with respect to Article 3 of the Constitution of India, 'the
status of J&K markedly differs from that of the other states. In the
case of other states,' he wrote, 'only the views of their legislatures
are ascertained by the President before recommending introduction of a
Bill relating to these matters [of altering the boundaries or name of a
state], but in the case of Jammu & Kashmir no such Bill shall be
introduced unless the legislature of the state consents.'
Imagine my shock when Bakshi's book did
not show the above exceptional provision mentioned by Justice Anand. A
letter to that effect was sent to Universal Publishing. The reply dated
July 15, 2000, of a director of Universal Publishing was unbelievable.
It said: 'No change can be made by us in Article 3 of the Constitution,
as parliamentary amendment is necessary for amending it. It has been
taken from the Constitution of India published by the Government of
India. Article 3 in our book is OK.'
A little reflection brought home the
above reply's horrifying revelation: the exception to the article
mentioned at 1 above had NOT been approved by the country's Parliament!
An examination of the 43 constitutional orders issued by the President
showed that none of the changes/exceptions made for J&K by orders in
his name find a place in the official Constitution of India — not even
in the March 2002 economy edition of Bakshi's book. Clearly, none of
them had been approved by Parliament.
Clearly, what had transpired was that
each ruling government in Delhi had simply dealt with the ruling regime
in Srinagar and brought about orders signed by the President of India
under Article 370(1)(d) that permits him to specify 'exceptions and
modifications' in the provisions of the nation's Constitution in their
application to J&K. And all these exceptions and modifications have
been in vogue without a green signal from Parliament. In effect, the
great, supreme Parliament of India has been hijacked for 50 years and
more!
The horror is not over, readers.
The first sentence of Article 368(2)
says, 'An amendment of this Constitution may be initiated only by the
introduction of a bill for the purpose in either House of Parliament…'
But the President's Constitutional (Application to Jammu & Kashmir)
Amendment Order, 1954, added the following to Article 368(2): 'Provided
further that no such amendment shall have effect in relation to the
State of Jammu & Kashmir unless applied by order of the President
under clause (1) of Article 370.'
What those 30 words above were doing was
to amend Article 368 titled 'Amendment of the Constitution'. And it was
being done under the seal of the President without invoking Parliament
in any manner whatsoever — in violation of what has specifically been
demanded by the above-quoted clause of this Article itself.
Was that action constitutionally
correct? NO! Under Article 368(2)(e), any amendment seeking to make a
change in Article 368 itself requires not only the commonly known
two-thirds majority in each of the two Houses of Parliament, but 'shall
also require to be ratified by the legislatures of not less than
one-half of the states by resolution to that effect passed by those
legislatures before the Bill making provision for such amendment is
presented to the President for assent'.
Was the amendment to Article 368 made
for J&K by the President's constitutional order of 1954 based on the
above-stipulated ratification by the required number of state
legislatures? NO! It was, instead, issued exclusively under Article 370
and was therefore a gross constitutional impropriety. In fact, all the
43 constitutional orders must be deemed unconstitutional because they
were, as seen earlier, not based on parliamentary approval. It is
conspicuous that this constitutional amendment of Article 368 by a
presidential order is not in the list of recorded constitutional
amendments of 50 years from the first one in 1951.
Seeking refuge in the power given by
Article 370 to the President (acting on the advice of his Ccouncil of
Ministers) to make constitutional exceptions is itself unconstitutional
because Article 370 is applicable only to J&K while 'Article 368
(Power of Parliament to amend the Constitution and procedure thereof)'
is a much larger and more supreme provision. If Article 370 overrides
Article 368 — as it has done in the last 50 years — it must be altered
or, better still, scrapped.
But even scrapping Article 370 does not
require Parliament's consent! Clause (3) in the article says,
"Notwithstanding anything in the foregoing provision of this article,
the President may, by public notification, declare that this article
shall cease to be operative … Provided that the recommendations of the
Constituent Assembly of the State … shall be necessary before the
President issues such a notification." Note that the President's order
abrogating Article 370 doesn't need the sanction of a parliament
democratically elected by the people of India but demands the push by a
J&K institution that's been moribund since the first state assembly
election took place in 1957! Can anything be more absurd in the
constitutional working of any self-respecting nation?
Sadly, the National Commission to Review
the Working of the Constitution didn't have either the capability to
understand the position or the courage to recommend what it should have:
abrogation of Article 370 or, in the least, its dilution so as to
return to Parliament the constitutional supremacy it merits. After its
go-by to a definition of secularism and the enactment of a uniform civil
code, Article 370 thus became the NCRWC's third failure.
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