National Conference (NC) working president and leader of the opposition in the Jammu and Kashmir legislative assembly, Omar Abdullah, attacks the Bharatiya Janata Party (BJP) day-in and day-out and says that “Article 370 could be abrogated only over their (read Kashmiri Muslim) dead bodies”.
Paradoxically, the BJP dropped Article 370 from its core agenda on 1 March 2015 to stitch an alliance with the Peoples Democratic Party (PDP).
Abdullah makes three frivolous and untenable statements in defence of Article 370. One, the Indian Parliament “cannot” amend or revoke Article 370. Two, there existed no constituent assembly in Jammu and Kashmir and, hence, the question of repealing Article 370 does not arise at all. Three, Jammu and Kashmir is not the solitary state in the Union that enjoys a special status; there are several states in the country which enjoy a “special status under Article 371 of the Indian Constitution”.
The first two arguments hold no ground. The Parliament is the highest law-making body. It was the Indian Parliament that adopted Article 370 in October 1949 as a “temporary provision” and it can amend or revoke it if it so likes, as it is within its right.
It would be only desirable to quote verbatim what former prime minister Jawaharlal Nehru said on 27 November 1963 and what the then Union home minister Gulzari Lal Nanda said on 4 December 1964 in the Lok Sabha with regard to Article 370. Nehru said: “Article 370 has been eroded, the process of gradual erosion is going on, we should allow it to go on”. Nanda said: “Article 370 was a tunnel through which a good deal of traffic has already passed (read extension of Central laws) and more will… while the normal process of (Constitutional) amendment is subject to stringent conditions, the process of amendment is very simple – by a Presidential order – a mere executive order”. In other words, Nanda said that the president of India using powers vested in him under Article 370 can be amended or revoked.
Article 370 can be repealed anytime through a mere executive order without taking the issue to Parliament. Nanda was absolutely right, as he only hinted at the constitutional position.
As for the second argument, less said the better. Suffice to say that the constituent assembly is never a permanent institution; it is constituted to frame a constitution and once the constitution so framed is adopted and enforced, the constituent assembly ceases to exist or becomes dysfunctional. This was true of the Indian constituent assembly and it was true of the Jammu and Kashmir constituent assembly as well. The Jammu and Kashmir constituent assembly adopted the state Constitution in 1956 and was enforced on 26 January 1957. Those in Jammu and Kashmir who said that Article 370 cannot be amended or repealed as there exists no constituent assembly in the state only ridicule themselves. It is hardly necessary to reflect more on this point.
Abdullah not only exposes himself by questioning the sovereign authority of Parliament, but he also exposes his intellectually bankruptcy by equating Article 370 with Article 371.
“Even in various parts of the country, Constitutional guarantees are provided under Article 371… people should not get misled by the elements inimical to peace and tranquility of the state. The BJP as a divisive party which believes in creating wedge between various sections of the population rather than binding them together,” Abdullah says.
There is no comparison between the Article 370 and the Article 371. The Article 371, unlike Article 370, doesn’t empower any of the states to enjoy a special status within the Union and exercise residuary powers. Nor does it empower any of the states to have a separate constitution and a separate flag.
Article 371 simply empowers the President of India to set up separate development boards for Vidarbha and Marathawada (Maharashtra) and Saurashtra and Kutch (Gujarat). The Article 371-A protects the “religious or social practices of the Nagas” and their “customary laws” and empowers the Nagaland Assembly to adopt or not to adopt the Central laws concerning “ownership and transfer of land and its resources”. It also gives “special responsibility” to the Governor of Nagaland “with respect to law and order in the State of Nagaland”.
Article 371-B provides for the Constitution and functions of a committee of the legislative assembly of the state (of Assam) consisting of members of that assembly elected from the tribal areas and for a similar committee in respect of Manipur comprising members of the assembly elected from the areas of the state.
Article 371-C requires the Governor to write a report to the President regarding the administration of the areas of Manipur. Article 371-D empowers the President of India to provide for equitable opportunities and facilities for the people belonging to different parts of the state (of Andhra Pradesh).
Article 371-E empowers the Parliament to establish a university in Andhra Pradesh.
Article 371-F authorises the Parliament to protect the rights and interests of different sections of the population in Sikkim by creating or earmarking certain Assembly seats for candidates belonging to such sections. It also states the Governor of Sikkim shall have special responsibility for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim.
Article 371-G states no Act of Parliament in respect of religious or social practices of the Mizos, Mizo customary laws and practices, administration of civil and criminal justice involving decisions according to Mizo customary laws and ownership and transfer of land shall apply to Mizoram unless the legislative assembly of the state by a resolution so decides…”
Article 371-H gives special responsibility to the Governor with respect to law and order in the state of Arunachal Pradesh and in the discharge of his functions in relation thereto, the “Governor shall, after consulting the council of ministers, exercises his individual judgment as to the action to be taken…”
Article 371-I states “notwithstanding anything in this (Indian) Constitution, the legislative assembly of the state shall consist of not less than thirty member”.
Thus, Article 371, unlike Article 370, is beneficial for the ignored sections of society and ignored and underdeveloped regions. It empowers the Governors in certain states to exercise special powers and responsibilities and act according to their individual judgment. In fact, Article 370 divides the society and promotes fissiparous tendencies and Article 371 unites and empowers the people.
It is time to call the NC’s bluff and work for the abrogation of Article 370 that has armed the ruling elite in the valley with absolute and unbridled legislative and executive powers and enabled it to create a wall of hatred between the Kashmiri Muslims and New Delhi and deprived the people of the state of normal civil and political rights. But more than that Article 370 has created an impression the world over that the issue of Jammu and Kashmir is still to be settled.
Hari Om Mahajan is former Dean, Faculty of Social Sciences, University of Jammu.
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