With the nul­li­fi­ca­tion of Ar­ti­cle 370 and Ar­ti­cle 35A, a his­tor­i­cal blun­der is cor­rected in Jammu and Kash­mir

The Times of India (New Delhi edition) - - An Epiphany Of Ideas - Gau­rav Bha­tia

The par­tial ab­ro­ga­tion of Ar­ti­cle 370 and nul­li­fy­ing the ill ef­fects of Ar­ti­cle 35A re­quired a steely re­solve and a firm po­lit­i­cal will which was absent for the past 72 years. Due to the ill ef­fects of Ar­ti­cles 370 and 35A, Jammu and Kash­mir could not be fully in­te­grated with In­dia even af­ter 72 years of freedom, and dis­crim­i­na­tion was writ large.

Separate con­sti­tu­tion, separate flag and separate iden­tity of the state was fully ex­ploited by the main­stream po­lit­i­cal par­ties of the Val­ley, the Congress, the sep­a­ratists and a rogue na­tion like Pak­istan. Metic­u­lous plan­ning and ide­o­log­i­cal clar­ity on the part of home min­is­ter Amit Shah paved the way for this his­toric de­ci­sion, cor­rect­ing the his­tor­i­cal blun­der com­mit­ted by the Congress govern­ment.

Sep­a­ratist forces tried to spread the il­lu­sion that it was in the in­ter­est of the peo­ple of J&K to con­tinue with their separate iden­tity. The re­al­ity is far from it. Kash­miris suf­fered when sep­a­ratist lead­ers flour­ished, amassed wealth, sent their chil­dren abroad for jobs and ed­u­ca­tion at the cost of the Kash­miris. Ev­ery In­dian con­trib­uted to the growth story of Kash­mir and tax­pay­ers’ money was pumped into Kash­mir even when there were other eco­nom­i­cally back­ward states in the coun­try which equally needed the funds from the Cen­tre, but no In­dian com­plained.

Ar­ti­cle 370 is the sec­ond Ar­ti­cle of Part XXI of our Con­sti­tu­tion and is unique in many ways. The head­ing of this part, read­ing “Tem­po­rary, Tran­si­tional and Spe­cial Pro­vi­sions”, makes it am­ply clear that Ar­ti­cle 370 was only a tem­po­rary pro­vi­sion and this is supported by the lan­guage of Ar­ti­cle 370 which also starts with the word ‘Tem­po­rary’.

Pes­simists and pseu­dosec­u­lar­ists who are now seek­ing refuge in the Con­sti­tu­tion of In­dia

Ar­ti­cle 370 is the sec­ond Ar­ti­cle of Part XXI of our Con­sti­tu­tion and is unique in many ways. The head­ing of this part, read­ing “Tem­po­rary, Tran­si­tional and Spe­cial Pro­vi­sions”, makes it am­ply clear that Ar­ti­cle 370 was only a tem­po­rary pro­vi­sion

can­not read the Con­sti­tu­tion as a tool of con­ve­nience and read it se­lec­tively, so as to rely upon por­tions that are con­ve­nient to them and ig­nore the other pro­vi­sions. In SBI vs San­tosh Gupta (2017) 2 SCC 538, the Supreme Court opined that “it is thus clear that the State of Jammu & Kash­mir has no ves­tige of sovereignt­y out­side the Con­sti­tu­tion of In­dia and its own Con­sti­tu­tion, which is sub­or­di­nate to the Con­sti­tu­tion of In­dia. It is there­fore wholly in­cor­rect to de­scribe it as be­ing sov­er­eign in the sense of its res­i­dents con­sti­tut­ing a separate and dis­tinct class in them­selves.”

Ar­ti­cles 370 and 35A re­sulted in deep and per­va­sive vi­o­la­tion of the fun­da­men­tal rights of In­dian ci­ti­zens guar­an­teed un­der part III of the Con­sti­tu­tion. Fun­da­men­tal rights have been held to be non-ne­go­tiable and part of the ba­sic struc­ture doc­trine of the Con­sti­tu­tion, as laid down in 13 judge bench judg­ment by the Supreme Court of In­dia in the land­mark Ke­sa­vananda Bharati case. 106 cen­tral leg­is­la­tions will now ap­ply to J&K, many of which deal with protecting fun­da­men­tal rights of ci­ti­zens which were not ap­pli­ca­ble be­fore, such as on man­ual scav­eng­ing and child labour.

It was in­deed heart­en­ing to see that on an is­sue as im­por­tant as Ar­ti­cle 370, most par­ties set aside po­lit­i­cal dif­fer­ences to come to­gether for a greater cause. It was only be­cause of this bi­par­ti­san pol­i­tics that the Jammu and Kash­mir Re­or­gan­i­sa­tion Bill was passed with an as­tound­ing ma­jor­ity of 370 yeasay­ers against 70 naysay­ers in the Lok Sabha, and 125 yeasay­ers against 61naysay­ers in the Ra­jya Sabha.

Par­ties like the Congress, Sa­ma­jwadi Party, Na­tional Con­fer­ence and PDP that op­posed the Bill need to in­tro­spect to re­alise how dis­con­nected they are from the ground re­al­i­ties and the feel­ings of the com­mon man. Congress, through its leader of op­po­si­tion Ad­hir Ran­jan Chowd­hury, gave an op­por­tu­nity to Pak­istan to at­tack In­dia by re­ly­ing on his false Lok Sabha state­ment that Ar­ti­cle 370 is not an in­ter­nal mat­ter as the is­sue is pend­ing be­fore the United Na­tions. It seems that his script was writ­ten and drafted by Pak­istan.

On 16 Au­gust, in a ma­jor diplo­matic vic­tory for In­dia, the United Na­tions Se­cu­rity Coun­cil in a “closed con­sul­ta­tion” ac­knowl­edged In­dia’s mea­sures to bring nor­malcy and de­vel­op­ment to Kash­mir. In­dia’s move on Kash­mir was ac­knowl­edged by France, Rus­sia and the US who con­tended that In­dia and Pak­istan must ad­dress the Kash­mir dis­pute in a bi­lat­eral setup.

The con­tin­u­ance of Ar­ti­cle 370 was an im­ped­i­ment in erad­i­cat­ing ter­ror­ism. Pak­istan used Ar­ti­cle 370 as a weapon. Due to this, in the past three decades al­most 42,000 in­no­cent peo­ple lost their lives.

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