- Posted December 8, 2013 by
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Article 370 -A Historical Blunder
All he said was that it was time to examine seriously whether Article 370 has benefited the people of Kashmir or not. The reason why I found this interesting is because I myself feel that the people of Kashmir deserve better than they have so far had. They have been betrayed over and over again by Kashmiri political leaders, by political leaders in Delhi and even by the terrorist groups who promised them azadi when they began the insurgency in 1989. I believe that it was bad policies made in Delhi that turned a straightforward, basic political demand into a secessionist movement and then this movement acquired an ugly jihadist character.
“Nobody wants terrorism to continue, they said everyone wants peace”. But, some people do feel that Kashmir had never been part of India but only a colony that had been cruelly exploited. And, I sense under the surface calm a disturbing, ill-omened tension as if violence lay just below. It will continue to lie under the surface until there is a more lasting solution to Kashmir’s political problems. This is the context in which we need to see Modi’s comments on Article 370. Personally, I have no idea whether he thought deeply before saying what he did but if he did not then it could be time for him to start doing so. This is because if he does become the Prime Minister, he needs to be sure that he does not make the mistake that Atal Behari Vajpayee did which was to continue with the same Kashmir policy that the Congress Governments have followed since Jawaharlal Nehru made the mistake of sending Sheikh Abdullah to jail in the 1950.
History will see it as a very serious mistake because had it not been for Sheikh Abdullah’s adamant stand that Kashmir would rather be part of secular India than Islamic Pakistan the Kashmir story may well have been a very different one. When I was researching, I could come up with no valid reason why the Sheikh should have been jailed at all. Even the terrorist leaders said they thought Vajpayee could find a lasting solution if he became the Prime Minister. He was not the Prime Minister at the time but had said on national television that if mosques were used to launch political movements then you could be sure that Hindu temples would be as well. The terrorist leaders found Vajpayee’s frankness refreshing especially when they compared it with the ‘duplicity’ of the Congress. It is India’s bad luck that after becoming the Prime Minister Vajpayee found no time to make a new Kashmir policy.
The Nehruvian vision of a separate status has given rise to aspirations for the pre-1953 status, self-rule and even Azadi. The desire of proponents of these three ideas has weakened the Constitutional and political relationship between Jammu & Kashmir and the rest of the country. The journey of separate status has been towards separatism and not towards integration. It would be incorrect for anyone to interpret BJP’s challenge for a debate on this issue as a softening of stand on Article 370.
However, coming back to the Art. 370 that provide special status, I find this disturbing, especially in this fast changing world.
The anti-daughter position in Jammu & Kashmir
The State laws in Jammu & Kashmir were consistently interpreted for over five decades to mean that a daughter in Jammu & Kashmir would lose her status as a permanent resident of the State as also special rights and privileges available to her if she married outside the State. This was based on an erroneous belief that a wife followed the domicile of the husband. A large number of women in Jammu & Kashmir questioned the constitutional validity of this provision. A Full Bench of the High Court of Jammu & Kashmir by a judgement dated October 7, 2002 re-interpreted the law and by a majority judgement held that a daughter marrying outside the State would not lose her status as a permanent resident. The National Conference government which was in power in the State was represented in this case by its Advocate General MA Goni who vehemently opposed the plea of the daughters. The judgement records:
“Ld. Advocate General, Mr MA Goni contended that a female descendent of a permanent resident of the state on marriage to a non-permanent resident of the state would lose the status of a permanent resident of the state and would not be permanent resident of the State as defined under section 6 of the State Constitution. He submitted that by marrying a non-permanent resident, a female descendent of a permanent resident of the State will not only lose the property which she may have acquired in the State before marriage as permanent resident of the state but she would also lose all special rights and privileges like employment in the State Government, right to scholarship or any other such privileges as the government may provide. He further submitted that the status of the wife or the widow depends on the status of the husband and in case she ceases to reside in the state and takes permanent residence outside the state she would lose the status acquired by marriage with a permanent resident of the State.”
This was the categorical position of the Government of Omar Abdullah’s party, the National Conference. Dissatisfied with this judgement, the National Conference government filed an SLP in the Supreme Government.
In the year 2003, the PDP Government in alliance with Congress Party was formed in the state. The PDP Government followed an alternative strategy. They withdrew the SLP and introduced ‘The Jammu and Kashmir Resident (Disqualification) Bill 2004’, which attempted to statutorily nullify the progressive majority view taken by the High Court. The Bill was enthusiastically supported by the PDP and the National Conference. It sought to withdraw the status of a permanent resident from a daughter who married outside the State. The Bill was passed by the Legislative Assembly.
Atal Bihari Vajpayee, the then Prime Minister in March 2004, suggested that the State Government should find a solution to this problem. The PDP and the National Conference linked it to the upholding the special status of the State guaranteed under Article 370 of the Constitution.
After being passed by the Legislative Assembly, this Bill was taken to the Legislative Council. It ran into some trouble with the Chairman of the Legislative Council adjourning the House without voting and referring it back to the Assembly where it again got stuck. Recently, again moves have been made to re-enact the Bill.
In 2010, a PDP member again introduced this Bill as a Private Member’s Bill in the Legislative Council. Competitive statements have been made by leaders of the National Conference that they are committed to bring this Bill. Special status and Kashmiri identity have been pitted against Women’ rights.
Can the Chief Minister Shri Omar Abdullah ignore a dubious track record of his Party on this issue and indulge in discourteous tweets on the subject? It must be accepted by one and all that such discriminatory provisions which also compromise on the right to live with dignity have no place in Indian law.
So, if Modi does end up as the BJP’s second Prime Minister then he should already start thinking about what needs to be done beyond rethinking Article 370. A good start would be for him to examine the historical mistakes that were made and that included rigged elections and the denial of basic political rights in exchange for cheap rice and the ostensible ‘pampering’ of Kashmir. This so-called pampering caused hostility towards ‘ungrateful’ Kashmiris in the rest of India and did very little to improve living standards in Kashmir. He needs to look very carefully at why a new phase of the Kashmir problem was created after the toppling of Farooq Abdullah’s Government in 1984. If he does, he may discover that the historical Kashmir problem had died by the 1980s and that it was reborn only because people were denied their fundamental democratic rights. And, he needs to examine why jihadists have so changed the culture of the Kashmir Valley that cinemas remain closed even today and little girls are forced to wear the ‘hijab’ in a State where women with uncovered faces once prayed beside men in mosques. So much blood and water has flowed down the Jhelum since then that there will be no real peace in Kashmir until there is a fresh approach taken towards solving India’s oldest and most intransigent political problem
Narendra Modi’s speech at Jammu invited Omar Abdullah’s response. After a long time, Article 370 is being seriously debated in this country. An ill-informed debate had earlier linked the issue of Article 370 to a secular versus non-secular debate. Article 370 has nothing to do with Secularism. My own study on the subject has revealed a very interesting dimension as to how Article 370 can turn into an instrument of oppression and discrimination against Indian citizens.
Article 370 is a special provision created only in relation to the State of J&K. It is a temporary provision. It relates to the distribution of power between the Centre and the State. The Central List in relation to J& K was a small one. Most powers are vested in the State Legislature. If any power had to be transferred from the Centre to the State, it required the concurrence of the State. Article 370 states-
Article 370, Temporary provisions with respect to the State of J&K :
(1) Notwithstanding anything in this Constitution;
(a) The provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) The power of Parliament to make laws for the said State shall be limited to:
(i) Those matters in the Union List and the Concurrent List which in consultation with the Government of the State, are declared by the President to correspond to matters specified in the instrument of accession governing the accession of the State to the dominion of India as the matters with respect to which the dominion Legislature may make laws for that State; and
(ii) Such other matters in the said, lists as with the concurrence of the Government of the State, the President may by order specify.
(c) The provisions of Article 1 and Article 370 shall apply in relation to that State;
(d) Such other provisions in the Constitution shall apply in relation to that State as a subject to such exceptions and modifications as the President may by order specify.
Article 35A, notwithstanding anything contained in this Constitution, no existing law in force in the State of J&K, and no law hereafter enacted by the Legislature of the State,
(a) Defining the classes of persons who are or shall be the permanent residents of the State of J& K; or
(b) Conferring on such permanent residences any special rights and privileges or imposing upon other persons any restrictions as respects:-
(i) Employment under the State Government;
(ii) Acquisition of immovable property in the State;
(iii) Settlement in the State; or
(iv) Right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provisions of this part.”
There are thus citizens of India who have not been conferred the status of State subjects. The phrase ‘State subjects’ and ‘permanent residents’ are used interchangeably. Millions of people migrated to India in 1947. Those who settled in other parts of India have all the constitutional guarantees available to them. They are entitled to all fundamental rights available under the Constitution of India to the citizens. The unfortunate ones who migrated to the State of Jammu & Kashmir have been conferred citizenship of India. They can vote in national elections. They can hold property anywhere in India. However, they have not been conferred the status of being State subjects under Article 6 of the Jammu & Kashmir Constitution.
Being citizens of India, they are discriminated against. They cannot vote or contest elections of the Assembly, Municipality or Panchayats in the State. They cannot get a job in the State. They cannot acquire property in the state. Their children are not entitled to admission to colleges as State subjects. The bright ones amongst them cannot even get scholarship or any other type of aid from the State. Article 35A of the Constitution of India executively inserted pursuant to Article 370 (1) (d) excludes the provision of ‘this part’ of the Constitution. ‘This part’ of the Constitution refers to ‘Part III.’
The effect of this would be that laws inconsistent with fundamental rights would be valid qua these persons. These citizens of India are not entitled to the protection of Article 14 (equality), Article 15 (prohibition of discrimination on basis of religion, caste, race or place of birth), Article 16 (Equality of opportunity in matters of public employment and reservations), the fundamental rights under Article 19 including the right to free speech and the right to life and liberty under Article 21. They are not entitled to the freedom of practice and propagation of religion under Article 25. They are also not entitled to protection of interests available to minorities under Article 29 and 30. The non-State subjects, who are citizens of India, who live in Jammu & Kashmir by virtue of Article 35A, are denied these protections. The pre 2002 position in relation to daughters who marry outside the State that they would lose their right of inheritance is based on the authority to discriminate against citizens of India, between citizens of India and State subjects which Article 35A confers.
Should a provision like Article 35A which exists only because of Article 370 have place in any civilized society? It is oppressive against citizens of India. It is discriminatory and violative of fundamental rights. Article 35A was inserted in 1954. On a bare reading, it violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time.