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'Article 370 must be abolished'

'Article 370 must be abolished'

J N Raina
Free Press Journal
February 9, 2000
Title: 'Article 370 must be abolished'
Author: J N Raina
Publication: Free Press Journal
Date: February 9, 2000

The bogey of greater autonomy for Jammu and Kashmir is periodically making the rounds in the beleaguered state, at a time when people are uninterested.

At its cabinet meeting last month, the ruling National Conference government, led by maverick Chief Minister Dr Farooq Abdullah, intrinsically approved into the State Autonomy Committee's report, demanding restoration of the pre-1952 autonomous status to the state.  Ipso facto, it means that the Centre will have to abdicate its control over state affairs, barring on matters pertaining to defence, communication and external affairs.

While the Farooq Abdullah government has asked the Centre to set up a ministerial committee to discuss the autonomy issue, the National Conference, which is a constituent of the BJP-led National Democratic Alliance (NDA), has already decided to table a resolution in the state Assembly on the matter.  The National Conference leadership has taken off the mask and exhibited its real intentions.

The hawks in the party are working hectically (as never before in the immediate past) to push through the resolution in the state legislative Assembly where it enjoys a brute two-third majority.  There seems to be a nexus between fundamentalists in the pro-Pak Hurriyat Conference and a section of the National Conference leaders to obtain secession of Jammu and Kashmir.  Their modus operandi is - the means justify the end.

In fact, the Farooq government had already tabled the report of the Special Autonomy Committee, headed by senior NC leader Ghulam Mohiuddin Shah, in the state assembly on April 13 last year, when foreign mercenaries and Pakistan's armed forces had covertly occupied the snow-bound Kargil mountains as a ploy to grab Kashmir.

Some of the NC leaders, imbued with separatist tendencies, deemed it prudent to raise the autonomy issue at a time when the Indian jawans were engaged in flushing out Pakistan-backed Mujahideen from the Indian soil.  Calling the Centre to make Article 370 a permanent feature of the Indian Constitution, is a covert attempt of legitimising the demand for independence of Jammu and Kashmir in the near future.  The report seeks among other things, non-application of Article 356 of the constitution to Jammu and Kashmir.

Union minister Jagmohan, who was Governor of Jammu and Kashmir twice, has observed, in his book My frozen turbulence in Kashmir, regarding Article 356, "This article enables the President to bring the State under President's rule.  It is often said that the extension of this Article constitutes encroachment on the state's autonomy.  But no one asks a related question - if there is a breakdown of the constitutional machinery in the state or if the state refuses to comply with any direction concerning defence, foreign affairs or communication, what will happen in the absence of the President's powers under Article 356?"

This is the third attempt by the NC to make a din about greater autonomy.  A similar attempt was made by the late Sheikh Abdullah when he regained power (after remaining in wilderness for 22 years) in early 1975, following the historic accord he had signed with then Prime Minister Indira Gandhi.  He had constituted an expert committee, headed by his close associate D D Thakur, to review the application of central laws in Jammu and Kashmir.  But astonishingly, the Sheikh, till his death, made applicable another 21 laws to his state.  He did not press for a review of the central laws during his tenure because he knew they were beneficial.  The main purpose of the NC has been to obtain a Muslim majority character for the state.  The aim has virtually been fulfilled overtly and covertly by the forced exodus of 3.5 lakh Hindus from their land of birth.

It is queer that the clamour for greater autonomy gained momentum at a time when ethnic cleansing in the valley and parts of Jammu region is almost complete, to pave way for the establishment of Nizam-i-Mustafa (Islamic way of life).  No sooner did Sheikh Abdullah came to power in 1947, and the Indian army cleared large portions of the state of Pakistani invaders followed by a cease-fire in 1949, than he started vehemently demanding a special status for Jammu and Kashmir in the name of "Muslims of the valley".

He had got a number of concessions from Delhi, like a separate constitution, a separate flag and a different nomenclature for the Head of the State (Governor) who was to be called Sadar-e-Riyasat.  The Head of the Government (Chief Minister) was to be called Prime Minister.  It was only when the late G M Sadiq came to power that the nomenclature was changed.

But the state continues to have its own constitution and a separate red 'halwala' flag.  Interestingly, Congress leaders even got a special provision (Article 370) incorporated in the Indian constitution to safeguard the state's special position.  But according to constitutional experts, Article 370 was not a device to give Kashmir some special status vis-a-vis India.  It was a mechanism for extending provisions of the Indian constitution to Kashmir, step by step.  This is why it is temporary and the NC leadership is so eager to make it permanent.

India's first Prime Minister Pandit Jawaharlal Nehru had once remarked in Parliament that "Article 370 is transitional, in other words, a temporary provision...  It is not a permanent part of the constitution.  It is part so long as it remains."

Jagmohan, in his book, says that Article 370 is not in the interest of the common people.  He has furnished several examples to elaborate his point.

"What is so special about Kashmir that this Article (370) is not applicable to other states?" Jagmohan questions.  "If it is there to protect and preserve the cultural entity of Kashmir, then such a provision should not have been made for all the states," he asks.  It is here that the recognition of the two-nation theory is implicit and the legacy of this theory has shaped the state's communal psyche.

According to Jagmohan, those who talk of Kashmir's autonomy tend to ignore the vast and varied socio-cultural phenomena of the state of Jammu and Kashmir.  The people of Jammu have different aspirations.  Ladakh, dominated by Buddhists, is totally different.

The people of Hindu-dominated Jammu region have a long-standing grievances that under the cover of Article 370 and the state's separate constitution, decisions taken over the years have been so manipulated by the valley's leaders that the power structure in the state has permanently tilted in favour of the Kashmir region.

"The primary task in Jammu and Kashmir is not the circulation of the fake coin of autonomy and fooling the people in the name of cultural entity, but to eliminate poverty," says Jagmohan.  Abrogation of Article 370 would, in fact, help in removing poverty and the state's backwardness.

He argues that Article 370 can be abrogated as it is transitional.  The very heading of part XXI of the Indian constitution reads: "Temporary, transitional and special provisions".  When Article 370 was framed, the clear understanding was that it would stay for a short time to cover the transitional period.  Since the state's Constituent Assembly does not exist, the question of its consent does not arise.

"The question of a dead body or a non-existent body has no meaning.  The constitution can be amended under Article 368 by the Union Parliament, which represents the people of the state also, Jagmohan says in the book.  The aforesaid provision requiring the recommendation of the constituent Assembly could be deleted.  After this deletion, the President can make the necessary declaration and Article 370 would stand abrogated, the noted author says.

It is quite inappropriate for the NC leadership to raise the issue of autonomy, obviously for ulterior motives, when a proxy war is on.  It amounts to mischief.  The Centre should make an in depth study of the intentions of National Conference activists at this critical juncture and move towards abrogation of Article 370, which otherwise has lost its significance because of the fact that the state's demographic character has drastically changed over the years.  The designs of those helping Pakistan overtly or covertly should be frustrated.  The sooner the better, for the national's survival.

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