Author: Arvind Lavakare
Publication: Rediff on Net
Date: May 29, 2002
URL: http://www.rediff.com/news/2002/may/29arvind.htm
What is the time-span of the word
'temporary?' Is it one week, one month, one year or one decade? Judging
by the indifference of the National Commission to Review the Working of
the Constitution towards 'Temporary, Transitional and Special Provisions'
contained in Part XXI of our Constitution, even half a century would seem
to justify the label of 'temporary.' Consequently, NCRWC's recommendations
to the government early last month didn't contain anything that would disturb
the status of Article 370 which -- applicable exclusively to Jammu and
Kashmir State -- has remained a "Temporary" provision right from the time
our Constitution became fully effective from January 26, 1950.
This indeterminate life of 'Temporary'
Article 370 is in sharp contrast to the 'Temporary' power given to Parliament
by Article 369. The latter permitted Parliament to make laws on certain
subjects that were otherwise outside its jurisdiction, but this legislative
power was to last only for the 'temporary' period specified by the Constitution
framers as being of 'five years from the commencement of this Constitution.'
However, the 'Temporary' Article 370 -- meant for J&K alone -- was
not given such a straight jacket of time. That conspicuous inconsistency
between two 'temporary' provisions of the same Constitution seems to have
been bypassed by NCRWC's wise men.
Now the fundamental reason for an
exclusive constitutional Article for J&K state was the Schedule annexed
to the Instrument of Accession signed by that state's Maharaja on October
26, 1947. That Schedule specifically provided that the Dominion of India,
to which the state had acceded, would be empowered to make laws for J&K
only on matters pertaining to defence, external affairs and communications.
And clause 7 of the Instrument of Accession itself did not bind the J&K
state to accept any future Constitution of India.
The result of that clause 7 was
the separate constitution of J&K enacted on November 17, 1956 through
an elected State Constituent Assembly. And the outcome of the above mentioned
Schedule was Article 370 which, in essence, lays down that
i. Laws of the Indian Parliament
relating to matters of defence, external affairs and communications shall
apply to J&K state only after consultation with the government of that
state
ii. Parliamentary laws on subjects
other than those mentioned in the Schedule shall apply to J&K only
with the concurrence of the government of that state, and
iii. The provisions of the Constitution
of India shall apply to J&K 'subject to such exceptions and modifications
as the President (of India) may by order specify.'
The result of the above hard-core
of Article 370 has been two-fold. One is that several laws of the Indian
Parliament have not been made applicable to J&K although the latter's
constitution proclaims through Section 3 that the state 'is and shall be
an integral part of the Union of India' -- a proclamation that, moreover,
is beyond constitutional amendment by the state legislature and one that
India stresses, but not often enough, in its dialogue with Pakistan as
well as the rest of the world.
As a consequence of Article 370,
some important laws of India that are not in force in J&K state are
the Indian Penal Code, 1860, the Urban Land (Ceiling and Regulation) Act,
1976, the Prevention of Corruption Act, 1988 and the Religious Institutions
(Prevention of Misuse) Act, 1988. This blatant discrimination between J&K
and all other states is patently absurd. Whatever the original raison d'etre
for such pampered treatment to J&K, it is a colossal failure of the
Indian government not to have persuaded J&K state to fall in line over
a 'temporary' arrangement; it also represents a cussed obstinacy of the
J&K authorities in insisting on preferential treatment even after a
'temporary' period of 52 years. Can you imagine any federal law of the
USA not being applicable to any of its 50 states? And remember, several
states in the USA also have their own constitution, separate from the American
constitution.
On the Constitution side, the position
is equally absurd, obnoxious, with regard to J&K. Space constraints
do not permit elaboration of the several constitutional provisions which
accord J&K a separate, preferential treatment in comparison with the
other states of India. Suffice it to say that the sum of these exceptional
provisions has led to the conclusion that 'the state (of J&K) has a
much greater measure of autonomy and power than enjoyed by the other states.'
(Indian Constitutional Law by M P Jain, fourth edition, reprint 1994, Wadhwa
& Company, Nagpur, pg. 435).
And yet, we now have Omar Abdullah
demanding pre-1953 autonomy for J&K. It is truly 'like father like
son;' or, really, like grandfather like father like son. J&K's craze
for an ineluctable status in India just does not go, whatever its hopeless
economic situation caused by hopeless misgovernance and whatever the severity
of grievances of Jammu and Ladakh districts against the overpowering dominance
of politicians ruling the Kashmir valley. And remember, Jammu and Ladakh
are large districts unlike 'Kashmir' which is neither a town nor a district.
Nevertheless, at least one discriminatory
constitutional provision for J&K needs to be juxtaposed with the discrimination
of Article 370.
Under Section 6 of the J&K constitution,
special rights and privileges are permitted to be granted by law to a category
called 'Permanent Residents' -- a category that's been constitutionally
defined in such a manner that Indian citizens from other states of India
and thousands in J&K itself just cannot fulfill that definition. One
such privilege allowed by J&K legislation is that of permitting only
'Permanent Residents' to acquire immovable property in the state.
As a result, no private sector industrialist
worth the name from outside J&K has set up shop there. There's that
case in 1985 when a hue and cry was raised after 32 members of the All-India
Services formed a cooperative housing society and got it registered. One
accusation was that Article 370 had been eroded. Such indeed was the bitter
opposition in the state assembly and elsewhere that the proposal was ultimately
dropped -- the elite IAS, IPS and IFS cadres of the Government of India
had been denied residential plots even as members of a cooperative society.
Further, there are literally hundreds
and hundreds of those who have settled down in J&K for years together
but are nevertheless ineligible to vote in the election to the state assembly
or local bodies and are also debarred from securing employment in certain
sectors -- all because they are not 'Permanent Residents' as defined by
the state constitution.
Other such examples of how Article
370 'suffocates the very idea of India and fogs the very vision of a great
social and cultural crucible from Kashmir to Kanyakumari' have been cited
by Jagmohan in his book My Frozen Turbulence In Kashmir (Allied Publishers
Limited, second updated edition, April 1992).
Jagmohan's book, be it noted, was
based on the experience of his two tenures as the governor of J&K while
being a civil servant and before he became part of the BJP fraternity.
However, it is with the above perspective of his that the BJP has been
demanding the abrogation of Article 370. But the Congress and all other
self-styled saviours of the nation's minorities have interpreted that demand
as being anti-Muslim in the Muslim-majority state; these great pretenders
of 'secularism' have never cared to explain how, in the name of Christ
or Marx or both, that community stands to lose without the alleged protection
of Article 370.
The controversy has been long and
belligerent enough to have warranted a serious study of facts and figures
by NCRWC. If Jagmohan's analysis was found convincing, the NCRWC should
have had the courage to recommend the abrogation of Article 370. And if
they had believed that Article 370 had its indelible place in our constitutional
framework, the least they could have done was to give our constitution
a cosmetic face-lift by converting that Article's 'Temporary' status into
one of a 'Special Provision' as has been given to the state of Nagaland
(Article 371A), the state of Assam (Article 371B), the state of Manipur
(Article 371C), the state of Sikkim (Article 371F), and the state of Arunachal
Pradesh (Article 371H).
Instead, NCRWC sat on the fence
of silence. It shut out Article 370 altogether, in dereliction of its duty
of studying how the ideas of our founding fathers had worked, or not worked,
on the ground over as much as half a century of time, and not over a 'temporary'
period of one week, one month, one year or even one decade.
Along with its failure to recommend
a landmark step forward on the definition of 'secular' in our Constitution's
Preamble and on the imperative need to enact a uniform civil code as mandated
by Article 44, the NCRWC's inaction on Article 370 represents a hat-trick
of victims it claimed during its two-year stint at the crease.
