Deception on Article 370
Views from Srinagar
was no elected Government in the State from 1990 to 1996. The bogus “consent” was given by the Centre’s own nominee, the Governor. It was Governor Jagmohan who “consented” to the application to J&K of Art. 249. (It empowers the Union to legislate even on a matter in the State list if the Rajya Sabha so resolves). This was done on 30 July 1986 G.A. Lone, former Secretary, Law and Parliamentary Affairs, described how the “manipulation” was done secretly “in a single day” in the absence of a Council of Ministers. Jagmohan did not stop at that. He also abolished the State’s residuary powers of legislation.
This is the state of Article 370 today. As this writer has repeatedly pointed out, on the convening of Kashmir’s Constituent Assembly on 31 October 1951, the State Government lost its interim power to accord any “Concurrence” which, in any case, was subject always to ratification by the State’s Constituent Assembly. On its dissolution on 17 November 1956, the President of India (i.e. Government of India) also lost any power and right to extend any provision of India’s Constitution to the State. All the Presidential orders are therefore, null and void.
Mehbooba Mufti would do well to refer to her own party’s document entitled “Jammu & Kashmir: The Self-Rule Framework for Resolution” published at Srinagar in October 2008. It sets out some of the graver inroads into Kashmir’s autonomy by violations of Article 370. Its demands were just – delete those amendments which increase the Centre’s powers as also the ones to Kashmir’s Constitution. “There is a compelling reason for rolling back Article 356” (imposition of President’s Rule) and much else besides.
Its draftsman, as the language suggests, is now a minister in PDP cabinet. He was also the draftsman of the PDP’s Manifesto for the 2014 elections, “An Aspirational Agenda” which contained this solemn pledge. “Use Article 370 itself to restore the original special status of the State”. This is perfectly possible. One order under Art. 370 can amend or delete another. A Memorandum submitted by the National Conference to Prime Minister P.V. Narsimha Rao, on 4 November 1995, urged, with copious references, that “Article 370 (1) (d) is not and cannot just be a oneway stream … There is no legal impediment, as is evident from the pronouncements of the Supreme Court, in reversing the dilution made to the autonomy of the State”.
Yet the PDP-BJP Coalition’s “Agenda of the Alliance” (March 2015) says nothing of a roll back to “the original” strength of Art. 370. On the contrary, it not only recognizes “the different positions” of both parties but also goes on to “appreciating