Ar­ti­cle 370 – con­sign it to his­tory!

Ar­ti­cle 370, in­cluded in the Con­sti­tu­tion as a tem­po­rary pro­vi­sion, should have been grad­u­ally ab­ro­gated but this has not hap­pened in past 67 years

SP's MAI - - NATIONAL AGENDA - LT GEN­ERAL (RETD) P.C. KA­TOCH

The me­dia is agog with dis­cus­sion on Ar­ti­cle 370 that had been men­tioned by Prime Min­is­ter Naren­dra Modi dur­ing Gen­eral Elec­tions and post for­ma­tion of the new govern­ment, a re­mark by the PMO had caused the Jammu and Kash­mir (J&K) Chief Min­is­ter go bal­lis­tic to the ex­tent that he had the au­dac­ity to say that if Ar­ti­cle 370 is re­pealed, J&K will not re­main a part of In­dia – as if J&K is the per­sonal fief­dom of his dy­nasty. That too when the present Chief Min­is­ter’s grand­fa­ther was ar­rested for trea­sonous acts as part of the ‘Kash­mir Con­spir­acy Case’ is well known, while his fa­ther’s role is sus­pect not only in rig­ging the J&K elec­tions in 1987 (that kick-started in­sur­gency in J&K) but also in or­ches­trat­ing the mas­sacre and ex­o­dus of Kash­miri Pun­dits from J&K and hol­i­day­ing in Lon­don while Kash­mir burned. Thou­sands of Kash­miri Pun­dits (es­ti­mates rang­ing from 1,40,000 to 3,50,000) be­came refugees in their own coun­try liv­ing in ab­ject penury ever since. That sim­i­lar eth­nic cleans­ing was at­tempted in Kisht­war re­gion of J&K last year un­der the present Chief Min­is­ter is also too well known, with di­rect com­plic­ity of one of his ju­nior min­is­ter over­looked through a face­sav­ing in­quiry.

The fact that Ar­ti­cle 370 was much ill con­ceived and was al­lowed to con­tinue un­der the fa­cade of be­ing a “sec­u­lar” democ­racy is ap­par­ent from what this sec­tion im­plies, its main fall­out be­ing: one, J&K cit­i­zens have dual ci­ti­zen­ship; two, J&K na­tional flag is dif­fer­ent from the Tri­colour; three, J&K Leg­isla­tive As­sem­bly has term of six years com­pared to five year term in other states of In­dia; four, there­fore it is no crime to in­sult In­dia’s na­tional flag and sym­bols; five, or­ders of Supreme Court of In­dia are not valid in J&K; six, Par­lia­ment of In­dia may make laws in ex­tremely limited ar­eas of J&K; seven; if a woman of J&K mar­ries a per­son of any other state of In­dia, she loses ci­ti­zen­ship of J&K; eight, in con­trast if a woman from J&K mar­ries a Pak­istani, the hus­band (Pak­istani) gets citi-

zen­ship of J&K; nine, RTI does not ap­ply to J&K, RTE is not im­ple­mented, the Comp­trol­ler and Au­di­tor Gen­eral of In­dia (CAG) does not ap­ply and In­dian laws are not ap­pli­ca­ble; ten, Sharia law is ap­pli­ca­ble to women in J&K; eleven; Pan­chay­ats have no rights; twelve, mi­nori­ties (Hin­dus and Sikhs) have no priv­i­leges by way of reser­va­tions or other­wise; thir­teen, In­dian firms can­not in­vest in J&K so how do you de­velop the re­gion, and the like. So, it should be clear that even a rad­i­cal or ter­ror­ist from Pak­istan that forcibly mar­ries a J&K girl au­to­mat­i­cally be­comes a J&K cit­i­zen – some­thing that has been hap­pen­ing for years by de­sign. Ad­di­tion­ally, since Pak­istan has been in­fil­trat­ing the rab­ble across, the in­ci­dence of AIDS in J&K has gone up alarm­ing, in­for­ma­tion of which the state au­thor­i­ties are de­lib­er­ately hid­ing but can be ver­i­fied. Com­pare all this with Pak­istan hav­ing changed the de­mog­ra­phy of PoJK (Pak­istan oc­cu­pied J&K) and China hav­ing overwhelmed six mil­lion Ti­betans by set­tling seven mil­lion Han Chi­nese in Ti­bet.

Ac­cord­ing to two times J&K Gover­nor (1982 and 1989), Jag­mo­han, the poor­est state in In­dia is Bi­har, but to­day Kash­mir gets eleven times more Cen­tral as­sis­tance than Bi­har, the plan ex­pen­di­ture [money al­lo­cated for de­vel­op­ment in the Five Year Plan], to­day it is 100 per cent fi­nanced by the Cen­tral Govern­ment, and be­tween 40 and 45 per cent of the non-plan ex­pen­di­ture (al­lo­ca­tions out­side the Plan to run the day to day ex­penses) are met by the Cen­tral Govern­ment. More im­por­tantly, the non-plan ex­pen­di­ture in­cludes the day to day ex­penses like the salaries of the govern­ment em­ploy­ees. More sig­nif­i­cantly, Jag­mo­han says, “When I was in Kash­mir the first time, I did a lot of devel­op­men­tal work and people for­got about Ar­ti­cle 370 and other (po­lit­i­cal) is­sues. There was jus­tice, the roads were built, ev­ery­thing was done and people were happy; their at­ten­tion was di­verted from the nar­row is­sues. It is vested in­ter­est who keeps this Ar­ti­cle 370 and do not al­low out­side in­vest­ment to come”. Though Jag­mo­han did not elab­o­rate fur­ther but the fact re­mains that enor­mous amount of money flow­ing in with­out ac­count­abil­ity has led to mas­sive cor­rup­tion and in­sur­gency is be­ing kept de­lib­er­ately alive. A 2013 NIA re­port had re­vealed that some R 600 crore have been di­verted within In­dia to fund ter­ror in J&K and R 98 crore were di­verted from the J&K Af­fectees Fund within a sin­gle year. Trucks car­ry­ing goods from J&K to PoJK are car­ry­ing over­priced in­voices and the sur­plus money com­ing from Pak­istan is be­ing given to ter­ror­ists through traders. There are busi­ness con­cerns within J&K as­sist­ing in­fil­tra­tion of ter­ror­ists from Pak­istan. Surely the Omar Ab­dul­lah Govern­ment is aware and com­plicit in all this. The State Govern­ment has also been de­lib­er­ately mak­ing mea­ger al­lo­ca­tions to the re­gions of Ladakh and Jammu. Jag­mo­han, how­ever, is di­rect about keep­ing the feel­ing in J&K be­ing dif­fer­ent, by say­ing, “It ben­e­fits people who want the power like the Ab­dul­lah fam­ily; they have ex­ploited this Ar­ti­cle, not al­low­ing out­side people to come to the State. They have thus cre­ated their own sheikhdom…this Ar­ti­cle 370 does not help any­one, it ham­pers eco­nomic de­vel­op­ment. It only helps politi­cians and nar­row-minded people who work only for their self­ish in­ter­est”.

Ar­ti­cle 370 was worked out in late 1947 be­tween Sheikh Ab­dul­lah, who had by then been ap­pointed Prime Min­is­ter of J&K by the Ma­haraja and Jawa­har­lal Nehru, who kept the Kash­mir port­fo­lio with him­self and kept Sar­dar Pa­tel, the Home Min­is­ter, away from his le­git­i­mate func­tion. Hence Nehru is an­swer­able to all acts of com­mis­sion and omis­sion, con­se­quences of which we are suf­fer-

There is no lim­i­ta­tion or re­stric­tion on the power of the Par­lia­ment to con­sti­tu­tion­ally re­peal any pro­vi­sion of the Con­sti­tu­tion, which in­cludes Ar­ti­cle 370, sub­ject to ju­di­cial re­view. So, Par­lia­ment can in­voke Ar­ti­cle 368 and re­peal Ar­ti­cle 370 with­out the need to take any con­cur­rence of the J&K Leg­is­la­ture.

ing till date as far as J&K is con­cerned. While Mount­bat­ten per­suaded Nehru to take the J&K is­sue to the UN, Sheikh Ab­dul­lah (later ar­rested in the Kash­mir Con­spir­acy Case) per­suaded Nehru to give spe­cial sta­tus to J&K – both grave strate­gic over­sights. The Pak­ista­nis were on the run and here was no rea­son to halt the In­dian forces to make the en­emy va­cate whole of J&K. Amus­ingly, Nehru had then said that Ar­ti­cle 370 was a tem­po­rary pro­vi­sion and will get eroded over a pe­riod of time – but noth­ing was ever done to re­peal it. If that was by de­sign, one can only con­jec­ture. But Nehru could have well done it by de­sign. Why else would Nehru keep the Home Min­is­ter Sar­dar Pa­tel away from the de­lib­er­a­tions and en­act­ment of Ar­ti­cle 370? Why did Nehru take no ac­tion to re­peal it over so many years when he him­self promised it was a tem­po­rary mea­sure? Ar­ti­cle 370, in­cluded in the Con­sti­tu­tion as a tem­po­rary pro­vi­sion should have been grad­u­ally ab­ro­gated but this has not hap­pened in past 67 years. Then is the is­sue of re­peal­ing of Ar­ti­cle 370 and the le­gal­ity or other­wise about gain­ing con­cur­rence of State Govern­ment by plac­ing it be­fore the Con­stituent As­sem­bly of J&K, prior to Pres­i­dent of In­dia through pub­lic no­ti­fi­ca­tion declar­ing that this Ar­ti­cle will cease to be op­er­a­tive, which is the main plank of Omar Ab­dul­lah and sub­ject of the de­bate. Ac­cord­ing to J. Sai Deepak, Se­nior As­so­ciate, Lit­i­ga­tion Team, at Saikr­ishna & As­so­ciates, writ­ing in Cen­tre Right In­dia on May 28, 2014, the ques­tion that needs to be asked is, does the pro­viso mean that the con­sent of the State As­sem­bly of J&K as it ex­ists to­day is a manda­tory pre­req­ui­site to abo­li­tion of Ar­ti­cle 370 by the Pres­i­dent through a no­ti­fi­ca­tion? His le­gal in­ter­pre­ta­tion is that each time the Con­sti­tu­tion is amended, the Par­lia­ment it­self as­sumes the role of a “Con­stituent As­sem­bly” since it re­con­sti­tutes the Con­sti­tu­tion, which ap­plies to J&K’s con­sti­tu­tion and its “par­lia­ment”/Leg­isla­tive As­sem­bly as well which is gov­erned by the Con­sti­tu­tion of Kash­mir, 1957. He points to the im­por­tance of this be­cause Ar­ti­cle 370 (clause 2) makes a ref­er­ence to “Con­stituent As­sem­bly for the pur­pose of fram­ing the Con­sti­tu­tion of the State” i.e. the As­sem­bly as it ex­isted when the Con­sti­tu­tion of J&K was be­ing drafted/framed, and not to the State Leg­is­la­ture as it ex­ists to­day. The crown­ing al­ter­na­tive J. Sai Deepak pro­vides is that Ar­ti­cle 370 can sim­ply be re­pealed by in­vok­ing Ar­ti­cle 368, which gives the Power of Par­lia­ment to amend the Con­sti­tu­tion and pro­ce­dure; notwith­stand­ing any­thing in this Con­sti­tu­tion, Par­lia­ment may in ex­er­cise of its con­stituent power amend by way of ad­di­tion, vari­a­tion or re­peal any pro­vi­sion of this Con­sti­tu­tion in ac­cor­dance with the pro­ce­dure laid down in this ar­ti­cle. Hence, there is no lim­i­ta­tion or re­stric­tion on the power of the Par­lia­ment to con­sti­tu­tion­ally re­peal any pro­vi­sion of the Con­sti­tu­tion, which in­cludes Ar­ti­cle 370, sub­ject to ju­di­cial re­view. So, Par­lia­ment can in­voke Ar­ti­cle 368 and re­peal Ar­ti­cle 370 with­out the need to take any con­cur­rence of the J&K Leg­is­la­ture.

What­ever the le­gal­i­ties, these surely have been taken into con­sid­er­a­tion by the new govern­ment and log­i­cally the is­sue will be de­bated in the Par­lia­ment at an ap­pro­pri­ate time. It is in the in­ter­est of In­dia in­clud­ing the people of J&K to re­peal Ar­ti­cle 370, let the re­gion and the pub­lic pros­per and in­te­grate with In­dia. The na­tion cer­tainly can­not be al­lowed to be kept hostage by the Ab­dul­lah dy­nasty for their own vested in­ter­ests.

A sol­dier guards the road­side check­point

out­side Sri­na­gar In­ter­na­tional Air­port

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