Demolish the wall of Article 370
by Romesh Raina on 14 Dec 2013 1 Comment
Gujarat Chief Minister Narendra Modi’s recent comments at the Lalkaar Rally in Jammu about Article 370 may be political, but they have unmasked the Article’s not-so-pleasant face. The fact is that its cumulative impact has been to do tremendous damage to the plural identity of Kashmir and push it in a direction different from that of the rest of the country. The result is that Kashmir is a transformed polity bearing little resemblance to its earlier persona. The Article has injected feelings of confrontational religious identity, resulting in increasingly bitter attitudes.


The assessment of the political situation after its long application is that Article 370 has given some political actors a sense of immunity due to lack of accountability; this no doubt adds to the aggression in the local politics of Kashmir. It has helped fan Muslim separatist tendencies because they unfortunately feel that the special status of the State will protect and maintain its Muslim-majority character. This has given rise to a separate political thinking which has promoted the feeling that Kashmir is distinct entity from the rest of the country; this reality now stares the nation in the face.


It has provided enough ammunition to the anti-India elements, particularly when the Chief Minister of the State repeatedly says that Kashmir has only acceded to India and not merged with it. Such utterances coupled with multiple other factors contribute to the making of an explosive political situation, which is further strengthened by demands like Greater Autonomy, Self rule, Achievable Nationhood and so on. This is in effect turning into a sustained political campaign to achieve the goal of keeping the State away from the constitutional structure of India. In such an environment, even raising the question of the abrogation of Article 370 or calling for a debate on its utility is seen as an anti-Kashmiri Muslim act.


Political Consequences


Article 370 has continued to strengthen by creating certain psychological barriers. Entering the larger matrix of Kashmir politics, its influence in restructuring society in an Islamic fashion cannot be ruled out. What adds an edge of urgency to the situation is that a deep distrust has taken root as Article 370 is not favourably disposed towards the minorities in the State as its continuance has ceded sufficient space to separatism and its known anti-minority agenda. The most telling example in this regard is the denial of citizenship rights to the refugees from West Pakistan refugees.


The India Human Rights Report in its quarterly release (Oct-Dec 2010) says separatists make no mention of minority Sikhs and Hindus who migrated to J&K in 1947 from West Pakistan. These minorities are not considered as citizens of J&K under Article 6 of the J&K Constitution as they come from outside of undivided Kashmir. Their rights have consistently been ignored”. Article 370 has legalized the discrimination.


The environment it created has allowed its impact to percolate down to every conceivable area of society. It has spread its tentacles aggressively by certainly dominating the minds of the people and shaping their psyche to make it central to Kashmir politics. The focus on its retention is amply demonstrated in common public meetings held by invoking the fear of its abrogation. There are numerous examples of people being exhorted to vote in order to protect it; the green cloth is shown in rallies to establish its Muslim connection.


Some prominent slogans that surface during elections include, Azi Hund yazzat Fazi Hund yazzat trey Haath Satath, trey Haath Satath, chon yazzat myon yazzat trey Haath Satath. The naked dance of destruction was visible in the 1990s when the minorities were forced to leave Kashmir. The National Human Rights Commission describes the killing, mayhem and violence unleashed against these hapless minorities as “akin to genocide”. Since then, it has attained speed and direction affecting issues and ideas and impacting social cohesion by eroding composite culture and religious pluralism. It underwent a great change, its role and scope became a political issue as the regional identity of Kashmir got replaced by religious identity.


It is no secret that politics in Kashmir has been and will remain a hostage to Article 370. The overriding casualty is the prevention of the Indianisation of Kashmir consistent with the secular democratic polity of India.                                


Is it reversible?


At the time of its incorporation, the Indian Political class explained its desirability in terms of placating Muslims of the valley who were feeling uncertain about their future. Going down memory lane, we learn that at the instance of Pandit Nehru, Sheikh Abdullah was requested to meet BR Ambedkar who reportedly told him, “India should provide all the money for the governance and development of your State. Indians should undertake to defend your State against Pakistan and other aggressors. Indians should die to defend your State. You will have a separate constitution, separate Head of State, separate set of Laws and separate Flag. Your people can buy and own land anywhere in rest of India but none who was not born in Jammu and Kashmir could reciprocally buy and own property in Jammu and Kashmir. Indians should be taxed to develop your land, to defend it from all aggressors and you have no obligation at all to Indian union. I can never agree to such treatment to any State.”


As the debate about its utility intensified, Pandit Nehru made a statement in Parliament on November 27, 1963 that Article 370 has been eroded. Some fresh steps are being taken it will be complete (erosion of Article 370). On December 4, 1964 Union Home Minister GL Nanda said Article 370 would be used as a tunnel in the wall to increase the Centre’s powers. The issue of abrogation became more pronounced when the political disunity in the state of J&K came to the fore with the eruption of the Jammu agitation. The Ladakhis openly expressed their discontent and desire to part with the State.


Article 370 created new challenges and raised the question whether it can be reversed. Dr MK Teng, a leading political scientist, has studied the subject extensively. He observed,

1. An interesting aspect of Article 370 was that it envisaged a perpetual Constituent Assembly in the State, at least so long as the transitional provisions remained on the statue Book. The framers of the Constitution presumed that the temporary provisions envisaged by Article 370 would last only for a relatively short duration and their operation would hardly extend beyond the time the Constituent Assembly of the State would take to draft the Constitution of the State. The Constituent Assembly of the State was dissolved in 1957, after it had completed the task of framing the Constitution of the State.


2. Article 370 did not vest any constitutive power in the hands of the President, nor did it vest any such power with the Constituent Assembly of the State. The President as well as the Constituent Assembly was empowered to order that the operation of the provisions of Article 370 would cease or continue with such amendments and exceptions as they would specify. They were subject to the limitations which one placed on the other.


3. No limitation was placed on the powers of the Parliament to amend Article 370. Even if such a stipulation was incorporated in the Constitution of India and provisions were incorporated in the Article 370 which placed limitations on the Parliament of India to amend its provisions, there was nothing which stood in the way of the Parliament to repeal the limitation as well as abrogate or amend the provisions of the Article.


The sum total of my argument is that the time has come to re-visit this Article in the light of the current situation. Recall that the provision for privy purses to the princely States was no less sacrosanct, but was done away with on grounds of being outdated in the changed situation. Let us respond positively to the new realities in Jammu and Kashmir.  


The author is a practicing doctor and social activist; he lives in Faridabad, Haryana

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