The truth about Article 370
By Arvind Lavakare
It is a national humiliation that members of the Legislature of Jammu & Kashmir State, its Chief Minister and its Chief Justice are required to swear allegiance to the State Constitution and not the nation’s Constitution.
During an informal discussion in mid-January 2005, a pretty senior leader of a national political party’s Mumbai unit expressed his personal belief that, “Over the years, the Union Government” had “tightened the screws on the Jammu & Kashmir State and that the State had been adequately integrated with the rest of India.” “As it is,” he said, “they have a separate Constitution and a separate flag; they may as well continue to have Article 370.” His most startling remark, however, was, “Article 370 has at least preserved India’s world class tourist spot. Without it, who knows, skyscrapers might have dotted Kashmir.”
Leave aside the last obnoxious opinion, which itself reflects the pathetic submission of our political class to the builders’ lobby (mafia ?), there is evidence to suggest that even the BJP as a whole seems to have made an ideological compromise on Article 370 by its unwillingness to talk about it with the angst and hurt of earlier years.
Such a compromise ignores facts set out in this exposition about the overall ill effects that pampering of one State has brought to the dignity of this country’s two supreme institutions—the national Constitution and the Indian Parliament.
It is a national humiliation that members of the Legislature of Jammu & Kashmir State, its Chief Minister and its Chief Justice are required to swear allegiance to the State Constitution and not the nation’s Constitution. And besides other constraints mentioned earlier, Appendix V of this exposition is one more proof of the Indian Parliament’s impotence with regard to Jammu & Kashmir.
This pampering has also almost closed the doors forever on the long-standing grievances of Jammu and Ladakh regions set out in Appendix VI and Appendix VII respectively. Continuing with Article 370 also ignores the aspirations of the entire Kashmiri Pandit community which is forced to live as refugees in their own country since 1989-90.
This pampering of Jammu & Kashmir has not only ignored the injustices caused by Article 370 to other states of the nation but may well have been responsible for all the talk of the ‘separatists’ and ‘secessionists’ and ‘freedom fighters’ that’s gone on for the last 15 years or so, thereby dissipating the nation’s energy required for rapid socio-economic development.
Tragically, this pampering has also almost closed the doors forever on the long-standing grievances of Jammu and Ladakh regions set out in Appendix VI and Appendix VII respectively. Continuing with Article 370 also ignores the aspirations of the entire Kashmiri Pandit community which, forced to live as refugees in their own country since 1989-90, desires a geographical entity of its own without the yoke of Article 370.
Now there is no doubt that a fairly large number of Parliamentary laws and provisions of the Constitution of India have been extended to Jammu & Kashmir State over the last five decades, especially in relation to the Supreme Court’s jurisdiction, the Election Commission, and imposition of President’s Rule under Article 356.
Time has come for every Indian worth his salt to stand up and echo to the Kashmiri the words Dr. Ambedkar uttered long ago to Sheikh Abdullah : “You want that India should defend Kashmir, India should develop Kashmir, and Kashmiris should have equal rights as the citizens of India, but you don’t want India and any citizen of India to have any rights in Kashmir.”
There is no doubt, nevertheless, that despite giving the biggest financial aid of all states to Jammu & Kashmir, the Central Government still suffers from several nationally humiliating constraints: the inability to unilaterally alter the borders or even the name of that State, to grant equal rights to all Indian citizens in that State and to use the CBI and the Indian Penal Code in that State etc. For accomplishing all this and more, the ‘mighty’ Government of India needs, not the authority of the nation’s supreme Parliament, but permission of a mere constituent unit that, for years together in bygone history, used to pay a fee to remain a subjugated protectorate of the British Empire. Today, that very protectorate of old has not only extracted much more than its pound of flesh from its protector but is arrogantly asking for more without so much as a word of gratitude.
There is no doubt, finally, that Article 370 does not seem to be amenable to abrogation legally as long as its wording contains the “recommendation of the Constituent Assembly of the State” as the prerequisite for revocation and any constitutional amendment relating to Jammu & Kashmir itself needs that State Government’s approval. Politically, too, adequate support for abrogation is improbable, if not altogether impossible, what with the ‘secular’ parties unwilling to upset the Muslim majority politicians of the dominant Kashmir Valley. And no Jammu & Kashmir government run by the leaders of the Valley will by itself ever agree to the abrogation. After all, who will give up ‘free lunches’ ?
But we ought not to close our eyes, do nothing and let the present situation continue. Time has come for every Indian worth his salt to stand up and echo to the Kashmiri the words Dr. Ambedkar uttered long ago to Sheikh Abdullah: “You want that India should defend Kashmir, India should develop Kashmir, and Kashmiris should have equal rights as the citizens of India, but you don’t want India and any citizen of India to have any rights in Kashmir. I cannot betray the interest of my country.”
The necessary action must begin with a judicial and political mix.
The ultimate goal, of course, should be to bring Jammu & Kashmir within the mainstream of the Indian Constitution without Article 370. Catching the light at the end of the tunnel will mean burying the last lethal legacy of small sovereign Indian states that the British Raj had so devilishly intended to leave behind.
Legal eagles should go to court asserting that Article 35A (granted to Jammu & Kashmir State in May 1954) violates the principle of equality that is part of the basic structure of our Constitution which, our Supreme Court has ruled, cannot be violated. They should also contest that the Sections in the Jammu & Kashmir State Constitution creating a privileged class of citizens designated as Permanent Residents violate the noble principles enunciated in the Preamble of that very Constitution. Our judiciary could well look upon these two legal challenges sympathetically and secure equal rights to all the Indian citizens in the State. That itself would be a mighty relief from the burden of Article 370.
To supplement the legal actions, determined financial pressure, like the one used by the Federal Government in the USA, could obtain Jammu & Kashmir’s concurrence in creating separate political entities for Jammu and Ladakh regions and for Kashmiri Pandits, besides persuading the Jammu & Kashmir State to amend its own Constitution so that its MLAs, ministers and judges swear to the supremacy of the nation’s Constitution, the Constitution of India. Ideally, the State must merge itself totally with the Constitution of India.
Till that happens, if at all, there is need to coax the Jammu & Kashmir Government into accepting that on matters that the President of India decides as conforming to defence, external affairs and Communications, there is no need to have any consultation with the State Government for extending Parliamentary laws to that State; after all, those three matters are those surrendered to the Indian dominion by the Instrument of Accession and no further consultation is required.
Meanwhile again, with respect to securing concurrence for Parliament laws other than on defence, external affairs and communications, it would only be fair to the concept of parliamentary democracy that the Lok Sabha and Rajya Sabha are given the right to debate, without voting, Jammu & Kashmir Government’s decision to reject the applicability in its State of this or that law being enacted by Parliament. Such a debate should be permitted also for those provisions of the Constitution of India as are not acceptable to that State. Such transparency in Parliament’s working will reveal the psyche of all concerned and help mutual understanding.
The ultimate goal, of course, should be to bring Jammu & Kashmir within the mainstream of the Indian Constitution without Article 370. Catching the light at the end of the tunnel will mean burying the last lethal legacy of small sovereign Indian states that the British Raj had so devilishly intended to leave behind. The task may seem impossible. But where there’s a will, there’s a way. The problem is whether the Indian nation at all has the will. And, as Sardar Patel said in the context of Article 370’s future : “If we cannot have confidence in our own strength, we do not deserve to be a nation.”
It is a national humiliation that members of the Legislature of Jammu & Kashmir State, its Chief Minister and its Chief Justice are required to swear allegiance to the State Constitution and not the nation’s Constitution.
During an informal discussion in mid-January 2005, a pretty senior leader of a national political party’s Mumbai unit expressed his personal belief that, “Over the years, the Union Government” had “tightened the screws on the Jammu & Kashmir State and that the State had been adequately integrated with the rest of India.” “As it is,” he said, “they have a separate Constitution and a separate flag; they may as well continue to have Article 370.” His most startling remark, however, was, “Article 370 has at least preserved India’s world class tourist spot. Without it, who knows, skyscrapers might have dotted Kashmir.”
Leave aside the last obnoxious opinion, which itself reflects the pathetic submission of our political class to the builders’ lobby (mafia ?), there is evidence to suggest that even the BJP as a whole seems to have made an ideological compromise on Article 370 by its unwillingness to talk about it with the angst and hurt of earlier years.
Such a compromise ignores facts set out in this exposition about the overall ill effects that pampering of one State has brought to the dignity of this country’s two supreme institutions—the national Constitution and the Indian Parliament.
It is a national humiliation that members of the Legislature of Jammu & Kashmir State, its Chief Minister and its Chief Justice are required to swear allegiance to the State Constitution and not the nation’s Constitution. And besides other constraints mentioned earlier, Appendix V of this exposition is one more proof of the Indian Parliament’s impotence with regard to Jammu & Kashmir.
This pampering has also almost closed the doors forever on the long-standing grievances of Jammu and Ladakh regions set out in Appendix VI and Appendix VII respectively. Continuing with Article 370 also ignores the aspirations of the entire Kashmiri Pandit community which is forced to live as refugees in their own country since 1989-90.
This pampering of Jammu & Kashmir has not only ignored the injustices caused by Article 370 to other states of the nation but may well have been responsible for all the talk of the ‘separatists’ and ‘secessionists’ and ‘freedom fighters’ that’s gone on for the last 15 years or so, thereby dissipating the nation’s energy required for rapid socio-economic development.
Tragically, this pampering has also almost closed the doors forever on the long-standing grievances of Jammu and Ladakh regions set out in Appendix VI and Appendix VII respectively. Continuing with Article 370 also ignores the aspirations of the entire Kashmiri Pandit community which, forced to live as refugees in their own country since 1989-90, desires a geographical entity of its own without the yoke of Article 370.
Now there is no doubt that a fairly large number of Parliamentary laws and provisions of the Constitution of India have been extended to Jammu & Kashmir State over the last five decades, especially in relation to the Supreme Court’s jurisdiction, the Election Commission, and imposition of President’s Rule under Article 356.
Time has come for every Indian worth his salt to stand up and echo to the Kashmiri the words Dr. Ambedkar uttered long ago to Sheikh Abdullah : “You want that India should defend Kashmir, India should develop Kashmir, and Kashmiris should have equal rights as the citizens of India, but you don’t want India and any citizen of India to have any rights in Kashmir.”
There is no doubt, nevertheless, that despite giving the biggest financial aid of all states to Jammu & Kashmir, the Central Government still suffers from several nationally humiliating constraints: the inability to unilaterally alter the borders or even the name of that State, to grant equal rights to all Indian citizens in that State and to use the CBI and the Indian Penal Code in that State etc. For accomplishing all this and more, the ‘mighty’ Government of India needs, not the authority of the nation’s supreme Parliament, but permission of a mere constituent unit that, for years together in bygone history, used to pay a fee to remain a subjugated protectorate of the British Empire. Today, that very protectorate of old has not only extracted much more than its pound of flesh from its protector but is arrogantly asking for more without so much as a word of gratitude.
There is no doubt, finally, that Article 370 does not seem to be amenable to abrogation legally as long as its wording contains the “recommendation of the Constituent Assembly of the State” as the prerequisite for revocation and any constitutional amendment relating to Jammu & Kashmir itself needs that State Government’s approval. Politically, too, adequate support for abrogation is improbable, if not altogether impossible, what with the ‘secular’ parties unwilling to upset the Muslim majority politicians of the dominant Kashmir Valley. And no Jammu & Kashmir government run by the leaders of the Valley will by itself ever agree to the abrogation. After all, who will give up ‘free lunches’ ?
But we ought not to close our eyes, do nothing and let the present situation continue. Time has come for every Indian worth his salt to stand up and echo to the Kashmiri the words Dr. Ambedkar uttered long ago to Sheikh Abdullah: “You want that India should defend Kashmir, India should develop Kashmir, and Kashmiris should have equal rights as the citizens of India, but you don’t want India and any citizen of India to have any rights in Kashmir. I cannot betray the interest of my country.”
The necessary action must begin with a judicial and political mix.
The ultimate goal, of course, should be to bring Jammu & Kashmir within the mainstream of the Indian Constitution without Article 370. Catching the light at the end of the tunnel will mean burying the last lethal legacy of small sovereign Indian states that the British Raj had so devilishly intended to leave behind.
Legal eagles should go to court asserting that Article 35A (granted to Jammu & Kashmir State in May 1954) violates the principle of equality that is part of the basic structure of our Constitution which, our Supreme Court has ruled, cannot be violated. They should also contest that the Sections in the Jammu & Kashmir State Constitution creating a privileged class of citizens designated as Permanent Residents violate the noble principles enunciated in the Preamble of that very Constitution. Our judiciary could well look upon these two legal challenges sympathetically and secure equal rights to all the Indian citizens in the State. That itself would be a mighty relief from the burden of Article 370.
To supplement the legal actions, determined financial pressure, like the one used by the Federal Government in the USA, could obtain Jammu & Kashmir’s concurrence in creating separate political entities for Jammu and Ladakh regions and for Kashmiri Pandits, besides persuading the Jammu & Kashmir State to amend its own Constitution so that its MLAs, ministers and judges swear to the supremacy of the nation’s Constitution, the Constitution of India. Ideally, the State must merge itself totally with the Constitution of India.
Till that happens, if at all, there is need to coax the Jammu & Kashmir Government into accepting that on matters that the President of India decides as conforming to defence, external affairs and Communications, there is no need to have any consultation with the State Government for extending Parliamentary laws to that State; after all, those three matters are those surrendered to the Indian dominion by the Instrument of Accession and no further consultation is required.
Meanwhile again, with respect to securing concurrence for Parliament laws other than on defence, external affairs and communications, it would only be fair to the concept of parliamentary democracy that the Lok Sabha and Rajya Sabha are given the right to debate, without voting, Jammu & Kashmir Government’s decision to reject the applicability in its State of this or that law being enacted by Parliament. Such a debate should be permitted also for those provisions of the Constitution of India as are not acceptable to that State. Such transparency in Parliament’s working will reveal the psyche of all concerned and help mutual understanding.
The ultimate goal, of course, should be to bring Jammu & Kashmir within the mainstream of the Indian Constitution without Article 370. Catching the light at the end of the tunnel will mean burying the last lethal legacy of small sovereign Indian states that the British Raj had so devilishly intended to leave behind. The task may seem impossible. But where there’s a will, there’s a way. The problem is whether the Indian nation at all has the will. And, as Sardar Patel said in the context of Article 370’s future : “If we cannot have confidence in our own strength, we do not deserve to be a nation.”
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