De­cep­tion on Ar­ti­cle 370

Views from Sri­na­gar

Pakistan Observer - - KASHMIR -

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

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