Tuesday, July 7, 2020
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Countering false narrative on Article 370

K B Jandial

While there is urgent need to reach out to the simmering Kashmir to assuage their outraged sentiments and to clarify that the “scrapped” article 370 was never pro-Kashmir, some sections of the national media especially the leading magazines are, deliberately or inadvertently, resorting to distorted and erroneous interpretation of constitution’s temporary and special provisions. And more regrettably this is going on un-countered, strengthening plethora of misleading narratives in J&K that is neither in the interest of people of the state nor of the country.

Some are trying to create a mischievous linkage of “abrogation” of article 370 to Hinditva agenda by referring to an editorial of ‘Organiser’ of 14th August, 1947 to frighten the minorities especially Muslim while many others are drawing parallel between the article 370 and article 371of the Constitution of India.

Dangerous narratives don’t end here as some have gone to the extent of comparing pre-accession invasion of Pakistan sponsored tribal raiders and Razakars from 22nd October 1947 and the present “build-up of security forces in Kashmir” early August this year. What a shameless comparison!

It is intriguing that those who are putting out these ‘expert opinion’ and analysis are doing it without appreciation of the Constitional provisions in a bid to demean the bold and historic decision of PM Modi by bringing in frankenstein of communal politics in public discourse.

A provision that was meant to be ‘temporary and transitional’ at the time of making of Indian Constitution after due diligence and in consultation of Kashmir’s popular leadership managed to survive 70 years. Isn’t it enough? The framers of article 370 (Sir Ayyangar, not Dr. B. R. Ambedkar, & Sheikh Abdullah) made these provisions very flexible to future situations. The Sheikh was on record to say in his second avatar as CM that “article 370 is not a khudai kitab”.

Article 370 unfolds interesting constitutional mechanism that “undoes” the limitations imposed on the legislative powers of the Parliament or on applicability of the constitutional provisions to J&K. It may sound incredible even to the pro-article 370 that the Sheikh Abdullah didn’t want to extend Fundamental Rights to his people. In Delhi Agreement of 1952 reached between Sheikh Abdullah and Pt Jawarhar Lal Nehru the issue of applicability of Fundamental Rights to J&K was deferred by recording this decision, “But in the view of the peculiar position in which the State was placed, the whole chapter relating to ‘Fundamental Rights’ of the Indian Constitution could not be made applicable to the State, the question which remained to be determined was whether the chapter on fundamental rights should form a part of the State Constitution or the Constitution of India as applicable to the State;” The Fundamental Rights were extended through Presidential Order of 1954.

While both articles are placed in the same part (XXI) of the Constitution under the title “Temporary, Transitional & Special Provisions” but there is hardly any similarity in their provisions. The opening words of both these articles make things abundantly clear about their status. The first line reads: “370.Temporary provision with respect to State of Jammu & Kashmir” against “Special provision with respect of State of…” in article 371 and article371 A to I. So, it is very obvious that drafters of Article 370 (including Sheikh Abdullah) made it ‘temporary’ while article 371 envisaged ‘special’ provisions. Again, while Article 370 restricts the legislative powers of the Parliament over J&K to three subjects of Union List and applicability of provisions of the Constitution to the State to only two articles but no such restrictions are provided in article 371& article 371 A to I.

While the contentious article 370 was in public domain for long because of its controversial provisions, most of the people don’t know the special provisions for ten other States and thus need to be educated about these. Article 371 is meant for Maharashtra & Gujarat and empowers the President to constitute development boards and ensure equitable development funds for some backward areas; article 371 A relates to Nagaland to protect religious or social practices, customary law & practices of Nagas, regional council for Tuensang district etc; article 371B is for Assam and relates to President’s power to constitute Committee of MLAs for the Tribal areas: article 371C deals with President’s power for committee for modifications of rules of Government business and Assembly etc of Manipur: article 371D deals with the President’s power to “equitable opportunities and facilities for the people belonging to different parts of Andhra Pradesh State in the matters of public employment and education”; 371E provides for establishment of a University for Andhra Pradesh; 371F contains provisions relating to the new State of Sikkim like strength of its Assembly and power of the Governor, High Court etc: 371G deals with special provisions for Mizoram including protection of their religious or social practices, customary law, ownership of & transfer of land; 371H provides provisions relating to responsibilities of Governor of Arunachal Pradesh and seats of the state Assembly; 371-I incorporated in 1987 to fix minimum number of seats of Goa Assembly.

Now, appreciate what ‘temporary’ (scrapped) article 370 envisaged. First provision limited the legislative power of the Parliament in respect of the Union List to only three subjects {article 370cl 1(b) (i)}. Another restriction that Article 370 imposed was on the applicability of articles of the constitution to J&K except Articles 1 & 370. The third important provision is the power of the President to abrogate or modify article but it required recommendation of the “Constituent Assembly of the State” (article 370(3).

But these restrictions were not absolute as the drafters of article 370 have kept a provision to each of these restrictions that circumvent it. For the restriction on the legislative powers of the Parliament to make laws for the State, clause 1 (b)(ii) allows more subjects under the Parliament’s jurisdiction through Presidential order but with the “concurrence of the Govt of the State” . Clause 1 (d) provided a mechanism for extension of more articles of the Constitution with “modifications and exceptions” through Presidential order but with the “concurrence of the Govt. of the State”. The critical provision of President’s power to abrogate or modify article 370 was dependent on the “recommendation of the Constituent Assembly” which stood dissolved on 17th November, 1956.

It is sheer fallacy to make ill-founded comparison between these two articles which didn’t exist, and mischievously suggest that article 370 has been changed while “similar” provisions for other States (article 371) have been retained. Article 370 created a “State within State” that bred separatist tendencies among the people which special provisions under article 371 don’t.

Now, why do some people create these misgivings by wrongly projecting things? What interest they have to create a misleading narrative both in India as well as in Jammu & Kashmir? It is this perfidious narrative in Kashmir, always promoted both by the separatists and the mainstream politicians that created alienation of people of Kashmir, separatism and jihad.

To drive parallel of present deployment of security forces in Kashmir with the invasion of J&K by Pakistan’s sponsored Tribals and its regular in October 1947 is outrageous. A reporter of a leading magazine compared the situation in the wake of the marching columns of raiders towards Srinagar between October 24 and October26, 1947 with pre-scrapping of article 370 claiming that “Kashmir was in similar situation”. The pre-accession invaders were murderous raiders, looters and rapists who are sought to be compared to a disciplined force deployed to enforce law and order and to prevent violence and consequent bloodshed. It is despicable.

Today, Kashmir is distressed over restrictions and information clampdown for three weeks; feel alike by many in the country. The Govt must respect dissent which is the soul of democracy. But at the same time, one needs to appreciate the critical situation in Kashmir which would be exploited by desperate Pakistan, separatists and even some of the political leaders that would have led to street violence and subsequent bloodshed. No administration can be expected to take chance in such a volatile situation and that’s why even the Supreme Court was very cautious in passing any order. The Governor’s administration is trying hard to cool down people’s tempers and exercising exceptional restraint in dealing with the situation. It has, so far, succeeded in preventing any major showdown or any killing in Kashmir. It would take some time for Kashmir to reconcile with abrogation of article 370.

Remember, article 370 was injected deep in Kashmir’s psychology & soul and the people had grown up with it, without understanding its provisions or getting any major benefit out of it except political power( blackmailing) that was concentrated in the hands of Kashmir’s political leaders. Who will make them accountable for their 70 years of misrule, wanton corruption, favourtism, rigging polls, creating ill-will & political tension between Kashmir & Delhi leading to alienation, creating space for Pakistan & its lackeys on the name of dialogue? They always insisted dialogue with pro-Pak separatists & Pakistan to address Kashmir issue; if they represented Kashmir “sentiments” whom did these elected MLAs & MPs represent despite running State Govt for 70 years? Sheikh Abdullah never asked for dialogue with Pakistan or separatists before his death.

How a common man is benefited if the Chief Minister is called Prime Minister and Governor as Sadre-i-Riyasat? How a constitutional provision or a central law passed by the Parliament having ten J&K MPs is good for 130 crore Indians including over 20 crore Muslims is bad for us? It was nothing but sheer politics in the name of autonomy or self-rule. The disadvantages of article 370 & article 35A were many if analyzed in terms of loss of huge opportunities due to lack of corporate investment in all sectors; non-extension of many constitutional welfare provisions like 73rd & 74 amendments; non-mainstreaming of Kashmiri youth due to psychological barrier of a “separate nation” and so on and so forth.

The Centre will definitely give a huge push to economic development of Kashmir, with or without an economic package and job opportunities but more than this; it must open channels of communication and dialogue with political leadership and civil society and take them on board for a shared journey towards a bright future in renewed constitutional arrangement.

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