J&K: Article 370 can be removed under Article 368
by Bhim Singh on 04 Dec 2013 20 Comments
Gujarat Chief Minister Narendra Modi’s massive rally in Jammu did not meet the hopes and aspirations of the people of Dogra land (Jammu Pradesh). The Bharatiya Janata Party leader failed to address the 63-year agony of the refugees from Pakistan who have been living in the State without any civil or political rights; another 10 million citizens of India from Pakistan-occupied Kashmir are residing in the State without any settlement to this date. Another one lakh refugees are living in camps since 1965, victims of eviction by the Government of India from Chhamb and Deva Batala.


In truth, as many as four lakh Kashmiri migrants and nearly 50,000 migrants from Doda, Ramban, Kishtwar, Poonch, Rajouri, Reasi and other places of Jammu Pradesh have not been given the relief they were entitled to despite a direction from the Supreme Court. Further, the youth have been victimised with discriminatory orders issued by the regime to provide ‘a peanut salary’ on recruitments to non-gazetted jobs in government departments.


The BJP’s oldest manifesto (that is, Jana Sangh) had sought abrogation of Article 370; but Mr Narendra Modi, briefed by well-wishers of Chief Minister Omar Abdullah, failed to adhere to the spirit of his own party’s history and did not even speak about amending this pernicious Article. Advocating a ‘debate’ on Article 370 is a slogan of the National Conference, supported by the Congress and the Communist Parties. It seems that Mr Modi did not know that the Parliament of India has abdicated its authority to make any legislation vis-à-vis J&K.


It is pertinent that comparing the scope of the law made on the status of ‘permanent residence’ has nothing to do with the scope and authority of Article 370. The law relating to permanent residence is drawn from the Royal Decree of the Maharaja issued in 1927, relating to the State Subjects.


Regarding the issue of the permanent residence law as it pertains to females who marry a non-permanent resident, it was in 1975 that the then Revenue Minister late Mirza Afzal Beg issued a rule that females who marry outside the State with a non-permanent resident shall be disentitled to be permanent residents. This meant that such a female would lose all her civil and political rights in the State. This law was challenged by several ladies, including Rubina Bakshi, daughter of former Prime Minister of J&K, Bakshi Ghulam Mohd; Posh Charak, Dogri poet Padma Sachdev; and Angmo Shano of Ladakh and several other daughters of permanent state residents. The full bench of the High Court of J&K in 2001 quashed this order of the Government as mala fide, discriminatory and ultra vires. The Supreme Court did not even hear the matter.


In November 2002, a coalition government led by Mufti Mohd Sayeed brought a law to reverse the judgment of the High Court and the Legislative Assembly passed this bill by proxy, without any discussion and without any advance notice to the legislators.


The Legislative Council heard the matter for several days. The Government was short of only one vote. This author refused to support the Bill piloted by the Government in which his own Panthers Party was a coalition partner. This one vote made the whole difference. In his longest debate in the Legislative Council, the author succeeded and the Chairman Abdul Rashid Dar declared that the Government was short of one vote as Prof. Bhim Singh has voted against the bill. This historic decision of the Panthers Party opened the windows of justice and equity for the women of J&K. Since 2002, there is no bar on females to inherit property as they are issued a permanent resident certificate, with marriage or without marriage. Still, one appreciates Mr. Modi for raising the issue, though he has clearly been misled on the merits of the case.


As for Article 370, it has put a ban on the power of the Parliament. But this can be amended by Parliament itself within the meaning and scope of Article 368 of the Constitution of India as Parliament has power to make, change, amend or delete any provision of law except certain provisions relating to the basic features of the Constitution. Article 370 is on record a “temporary provision”; hence, its extension cannot be justified.


A glaring blunder is that the temporary provision called Article 370 was inserted in the Constitution of India in 1950 with the sole intention of controlling the power of the monarch, Maharaja Hari Singh, whose authority was not abolished by the Constituent Assembly in 1950. The Maharaja was allowed to continue as monarch with a purpose to please Sheikh Mohd Abdullah and to keep Abdullah’s hopes alive that he would be the Sultan of Kashmir after the Maharaja.


Article 370 became infructuous in 1952 when the J&K Constituent Assembly abolished the monarchy with one line resolution on August 20. All the powers retained by the Maharaja (since the Accession of J&K to the Union of India in 1947) lapsed that very day. Article 370 when read even casually, expressly states that it shall apply in respect of the Government that was constituted by the Maharaja of J&K. It says that no law on J&K shall be applicable to J&K unless approved by the Government of J&K constituted by the Maharaja of J&K. It leaves one is no doubt that it was only to curtail the powers of the monarch. When the monarchy was thrown out, Article 370 became infructuous.


Unfortunately, the BJP, like the National Conference and the Congress, has been playing with the sentiments of the nationalist section of the people in the name of Article 370 by not revealing the true status of Article 370. For this writer, the real wonder was that Narendra Modi aspired to make J&K a super state under the governance of the Kashmiri rulers as he felt Kashmiriyat was superior to Indian nationalism. He failed to appreciate that Dogriyat and Ladakhiyat have no less a role in the promotion of national integration.


The greatest lacuna exposed by the visit was that Narendra Modi did not know that J&K is the only State where there has been no fresh delimitation of Assembly and Parliament constituencies since the 2001 census. He seems unaware of the discrimination meted out to the youth, students, employees and the people of Jammu Pradesh by the ruling Kashmiri clique. All in all, his visit raised hopes, and dashed them.

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