Issues

Not easy to play around with Art. 370

By Khan Hasnain Aaqib

It is not understandable as to why the newly-elected government is in a hurry to implement its controversial agenda although it was part of the BJP manifesto and the pre-election declarations of the saffron party leaders. The RSS was waiting for this moment for more than half a century and now the opportunity has knocked at its doors. History goes back to over six decades as to how did the constituent assembly grant special status to Kashmir vide Article 370 of the Constitution of India.

The Constituent Assembly was set up for the purpose of drafting a constitution for India. It existed for almost three years, acting as the first parliament of India after independence in 1947 and it drafted the constitution of India with the special provision of Article 370 with reference to Kashmir.

The Assembly was not elected on the basis of universal adult franchise and only Muslims and Sikhs were given special representation as “minorities”. The assembly had only two Muslim members in the core committee leading to a dispute about the proportion of Muslim representation in the constituent assembly. One of the two was Maulana Abul Kalam Azad whose grand-neice has just asserted that Muslims are not a minority.

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 and Kashmir made “The Constitution (Application to Jammu and Kashmir) Order, 1950” which came into force on 26 January, 1950 and was later superseded by the Constitution (Application to Jammu and Kashmir) Order, 1954 which came into force on 14 May, 1954. Article 370 specifically mentions that except 1. Defence, 2. Foreign Affairs and 3. Communications and  ancillary matters (matters which were specified in the Instrument Of Accession, which took place between Maharaja Hari Singh and the Union of India at the time of deciding the fate of Kashmir after the partition of India), the Kashmiris will enjoy the privilege of having their properties only with them, and no non-Kashmiri could have the right to buy property in Kashmir. The head of the Government of Kashmir was to be called the Prime Minister and the state assembly was to be called Parliament and the President of Kashmir was also to enjoy the dignity of a head of state. But we can see that the Prime Minister of Kashmir has come to be known as the Chief Minister, and President of Kashmir is now the Governor and its Parliament is now an assembly.

Article 370 was an agreement between the Kashmiris and the Union Government of India for granting limited and restricted autonomy for the state if it were to be part of India.

True, Kashmir is an integral part of India but why should the fact be sidelined that Kashmir, unlike other states, has diverse culture, diverse geographical stretches, political inclinations, a different history and most of all, unlike other states, shares borders with another state which is claimant of Kashmir. Those opposing Article 370, should not overlook these diversities. All these elements constitute a strong claim of the state to enjoy autonomy within the Union of India.

Due to the sensitive nature of the issue, all governments have respected the Article 370.  No Union Government in India has tried to tinker with the Article 370. The 1974 Indira-Sheikh accord  between Sheikh Abdullah and then Prime Minister Indira Gandhi stated, “The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India”. This clearly states that even a prime minister of the stature of Indira Gandhi decided not to touch Article 370.

This article specifies that the Indian Parliament needs the State Government’s concurrence for applying Indian laws to the state. Thus the state’s residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indian citizens. Similar protections for such unique status exists in the case of India’s tribal areas including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland. However, it is only for the state of Jammu and Kashmir that the accession of the state  is still a matter of dispute between India and Pakistan. It is still on the agenda of the UN Security Council. The Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article .

Some argue that the President may, by public notification under article 370(3), declare that Article 370 shall cease to be operative and no recommendation of the Constituent Assembly is needed as it does not exist any longer. Others say it can be amended by an Act of Parliament under Article 368 of the Constitution and the amendment will extend under Article 370(1). Art. 147 of the Constitution of Jammu and Kashmir states that no Bill or amendment seeking to make any change in the provisions of the Constitution of India as applicable in relation to the state, shall be introduced or moved in either house of the Legislature. As per Art. 5 of the Constitution of Jammu and Kashmir, the executive and legislative powers of the state extend to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India as applicable in relation to this state.

J&K chief minister Omar Abdullah has said that Article 370 was the “only constitutional link” between Jammu and Kashmir and rest of India” -- a stand many senior Kashmir politicians, scholars and historians concur with. “He (Omar Abdullah) is right,” said noted Kashmiri legal luminary Syed Tassaduq Hussein. “It means they want to break the constitutional link between the state and the Union. Even if they want, it won’t be easy. They have to first pass a resolution in Lok Sabha, then in Rajya Sabha, with two-thirds majority. Then it would come to Kashmir Assembly where they will need to pass it again with a two-thirds majority, which is not possible. It will be the demise of any political party if they dare to do that in Kashmir. Kashmir will be in flames if they attempt it,” Hussein said. PDP chairperson Mehboobah Mufti has also said that “It is an established fact that Art. 370 has acquired a permanent status in the Constitution of India, it is not advisable even to open a debate on it keeping in view its crucial nature in the relationship between the state and the Union.”  Keeping all these facts in mind, we have to act wisely to deal with this delicate issue effectively and wisely.

In the modern age of technology and progress, it will be a folly to wander into uncharted political waters for encashing irrelevant issues while people face harsher and more pressing problems.

This article appeared in The Milli Gazette print issue of 16-30 June 2014 on page no. 2

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