Political Diary

New Delhi, 31 May 2014

Repeal Of Article 370

IS J&K MORE VITAL THAN INDIA?

By Poonam I Kaushish

Knots and crosses. Everybody seems to be busy playing this game when it comes to Kashmir. The Centre is busy disentangling Article 370 knots while the State works overtime to ensure they are not easy to cross. Both trying to get the better of the other, citing history, politics, legalities, Constitutionalities et al with the devil taking the hindmost!

The face-off started innocuously with the Minister of State in the PMO Jitendra Singh calling for discussion on Article 370 to try and “convince the unconvinced” on its disadvantages. All hell broke lose with J&K’s Chief Minister Omar Abdullah slamming Modi, “The Article is the only Constitutional link between the State and the rest of India.” It is legally and politically inter-dependent. If one goes, the other goes too, cooed PDP’s Mehbooba Mufti. The Congress too joined the row with its own pitch: The Article is irrevocable.

What is it about Article 370 that raises political tempers and hackles? Can one justify why Kashmir should get ‘special status’? Given that the Article has become the biggest impediment to integration of J&K into the Indian Union and symbolises the emotional delineation between Srinagar and New Delhi.

Like it or not, it has for better or worse, become the most touchy feature of the larger Kashmir dispute post the State's accession with the Indian Union in 1947 as also within the three regions of J&K in the immediate. Namely, Muslim Kashmir Valley where the Article is sacrosanct, Hindu Jammu where its abrogation is vociferously supported and Buddhist Ladakh which demands Union Territory status.

Recall, when India and Pakistan gained Independence in August 1947 J&K chose to remain Independent. But on 6 October when Pakistan attacked the State, the then Maharaja Hari Singh signed the “Instrument of Accession” wherein the Indian Army were deployed there to save Kashmir. After that power was handed to Sheikh Abdulla who asserted that the final decision about the Instrument of Accession would be taken by State Assembly.

Thereafter, Kashmir was given special status, and Article 370 imposed. Under this Article, J&K has a separate Constitution of its own. Also, except for defence, foreign affairs, finance and communications, the Central Government can make laws only with concurrence of the State Assembly, practically giving it the Veto power.

Further, Article 352 and 360 for declaration of national and financial emergency respectively cannot be applied in Kashmir. It can declare emergency only in case of war or external aggression, not even internal disturbance or imminent danger unless it is made at the request or with the concurrence of the State Government.

While a citizen of the country has only Indian citizenship, J&K residents have two citizenships. Moreover, they live under a separate set of laws, including those relating to ownership of property which bars an Indian citizen from purchasing land/property in the State. Wealth Tax, Gift Tax & Urban Land Ceiling Act do not operate in the State.

Sadly, Nehru’s promise that Article 370 was a temporary provision and would get eroded over a period of time has turned out to be a chimera. Worse, it has been made into an “untouchable” provision. Whereby the President has no right to suspend the Constitution, Supreme Court orders are not applicable on J&K, Parliament has no power to legislate Preventive Detention laws, citizens from other State’s can not get citizenship of J&K.

Look at the absurdity. A Kashmiri girl looses her J&K citizenship if she marries any person residing elsewhere. But if she marries a Pakistani both will get J&K citizenship. Clearly, such a discriminatory provision not only compromises on the right to live with dignity but should have no place in Indian law.

This kid glove treatment also envisages that Article 356 under which the President can impose his rule in any State cannot be enforced in J&K without consent of the Governor who himself is an appointee of the President. The State can also refuse building of any cantonment on any site or refuse to allot land for defence purposes.

Those hankering for its repeal argue that the Article 370 conveys a wrong signal not only to Kashmiris but also to the separatists, Pakistan and the international community that J&K is still to become integral part of India. It also delinks the State from the country’s mainstream, resulting in its non-development.

This in turn leads to fostering a “secessionist psyche” and fissiparous tendencies whereby anti-nationalist elements thrive by receiving shelter from Pakistan thereby abetting cross-border terrorism. Indeed, Article 370 is a boon for Kashmiri separatists leading to proliferation of rabid anti-India leaders.

Woefully, this has lead to alienation of the youth not only in terms of jobs and livelihood whereby there is no Indian-ness among the Kashmiris. It has deprived the State of industrial development thanks to doors being shut for outside investment.

Pertinently, during the Constituent Assembly debate Dr. Ambedkar, had cautioned Nehru on the plea that the Article could would cause a further division and create difficulties in the full integration of the State with India. Also, it would sow the seeds of separatism in the Valley. Undeniably, his fears have come true.

On the obverse some Kashmiris underscore the 1975 Kashmir Accord between Sheikh Abdullah and Indira Gandhi which reiterated “the relationship between J&K and the Union will continue to be guided by Article 370.” Arguing that this was a categorical official assertion granting permanency to what originally had been adopted as a 'temporary provision' of the Constitution.

Besides, the Constitution of India itself stipulates that Article 370 can be amended “only with the consent of the J&K Constituent Assembly” which went out of existence way back in 1957.

Bluntly, how is it possible that Kashmir agrees to be part of India but refuses to recognise or accept India’s Fundamental Rights and Directive Principles of State policy. Not only is this discriminatory but tantamount to the State being a part of India yet not a part. Ridiculous to say the least!

Undoubtedly, the Abdullah’s, like politicians of their ilk is looking at the short end of the stick, ignoring vital and more significant long-term implications for the country as a whole as well as separatist politics within and outside Kashmir.  Pakistan’s agenda is very clear; the unfinished agenda of Partition is annexation of Kashmir.

What next? Clearly, Article 370 completely derides the fact that Kashmir is an inseparable part of India by marking it as a special and different State, which spells danger for the nation State. Add to this, it has weakened and constricted the political and Constitutional integration of the state of with India

True, Article 370’s legal and Constitutional dimensions will ultimately determine its fate when the time comes. But till then Prime Minister Modi has to walk a tight rope. Any wrong step would have national repercussions of loosening the political and Constitutional relationship between the State and the rest of the country as also its politico-emotional fallout. Those who oppose Article 370 need to answer one question: Is Kashmir more important than India? What gives? ----- INFA

(Copyright, India News and Feature Alliance)