Friday, 25 September 2020

Real meaning of abrogating Article 370

By Anil Anand
Updated: August 22, 2019 11:16 am

Article 370 of the Indian Constitution, conferring special status to the state of Jammu and Kashmir, lies partially buried with its neck still jutting out. It is because the reasons responsible for according special status have been removed, not the problem per se, as many, even the highest in the power structure, would like the nation to believe.

One would like to begin with the premise, to look at this issue, that nothing in this universe is either permanent or static. And Articles 370 and 35A are no exceptions to that universal rule. Yes, it should have been debated threadbare and yes it should have been changed /removed after reaching to a conclusion as to “kya khoya kya paya” and convincing those people to whom it directly affected on ground.  It is no one’s case to even remotely suggest that the Constitutional provision was untouchable.

After all, majority of its provisions, beginning with eradicating the title of Sadar-e-Riyasat (President of the State) and Waizr-e-Azam (Prime Minister) bringing the state under the purview of Supreme Court of India, Election Commission of India, CAG and many other such high, and many other laws or provisions as applicable to rest of the country, were made effective after changes in the controversial Article.

Yes, there are areas such as direct applicability of laws to the state, which are legislated by the Parliament, a separate flag and a separate constitution, which are debatable. In the prevailing scheme of things under Article 370, any law passed by Parliament is subject to ratification by the now defunct state assembly and it is not mandatory for the assembly to take up the issue.

So, what has really changed after July 4-5, 2019, when the Modi-02 Government took the world by surprise by changing the special status of the state and bifurcating it into two Union Territories as against the ruling party’s stand of trifurcation? After all, earlier attempts were also made but remained a non-starter to do the same.

It is a gutsy decision well planned and executed with aplomb. Leaving aside the fact that those directly affected were not consulted.

In 1964, after Prime Minister Pandit Jawahrlal Nehru’s death, a near unanimity had reached in Lok Sabha, as a result of a private member’s Bill to abrogate Article 370. More importantly, the then chief minister, he was designated as Prime Minister in his first innings as head of Jammu and Kashmir in early 1950s, Sheikh Mohammed Abdullah in 1975, had made the move in J & K Assembly and made the significant comment, “Article 370 Quran ki Aayat nahin hai jo hatayi nahin jaa sakti” (Article 370 is not a verse of Quran, which cannot be changed).  It sounds unbelievable but it is a fact.

But the tallest Kashmiri leader till date and the villain of piece, as described by many along with Nehru, could not succeed due to, till date, unexplained political reasons.

The dictionary meaning and logical explanation of the word premise is two fold: Firstly, “A previous statement or proposition from which another is inferred or follows as a conclusion. Secondly, base, an argument, theory, or undertaking on.”

This theory of premise seldom works in politics as many other things, unless there is a politically opportune time or expediency. The current case of dealing with Article 370, from the BJP’s point of view, is no exception.

Why so? Notwithstanding the fact that it has been the BJP and its ancestor Bharatiya Jan Sangh’s (BJS) long standing dictum of “Ek Sanvidhan, Ek Nishan aur Ek Pradhan” and the instrument to achieve this is certainly abrogation of Article 370. The Pradhan (chief already gone after abolishing Prime Minister and Sadar-e-Riyasat), the Nishan (separate flag) and Sanvidhan (separate constitution of J&K) have now ceased to exist.

The theory of premise, to which this move of the BJP-led Government can be attached, is being referred to a recent political happening–that is the BJP-Peoples Democratic Party’s agreement before forming an alliance government in J&K.

It is a glaring instance of how dynamics of politics change often keeping the commitment and morality factors on the backburner.

Some portions of the agreement need a mention here as  the BJS-BJP-RSS’s decade-old stand on Article 370 and related issues, and subsequently reasoning forwarded at the time of forging BJP-PDP alliance and now arguments given to justify abolition of the state’s special status and bifurcate it contradict each other. More so, the entire process taking shape without taking people and the mainline political leadership of the state into confidence and in turn keep them under house arrest has raised questions bordering democratic values. From Dr Farooq Abdullah,   Omar Abdullah,  Mehbooba Mufti, to second rung leaders of National Conference, PDP and Congress were kept under house arrest not only in Kashmir but in Jammu as well.

The BJP-PDP written agreement, signed on March 1, 2015, read, “The PDP and BJP have entered into a Governance Alliance based on an agreement and agenda which is an effort towards seeking a national reconciliation on J&K. In a situation where socio-political aspirations and grievances of the people have wide ranging differences, economy development in its own can neither bring about peace nor prosperiety.

It further stated: “ While recognising the different positions and appreciating the perception of the BJP and PDP on the constitutional status of J & K considering the political and legislative realities, The present position  would be maintained on all constitutional provisions including the special status in the constitution of india.”

So, the theory of premise has miserably failed in this case and within four years.

Nevertheless, partially abrogating Article 370 and removal of special status to J&K alongside creating two Union Territories is definitely a politically deft move, well planned and well executed. It was the Government’s prerogative to adopt strategies and timing of its choice to make its move a success.

But how the reasoning and timing has changed also makes an interesting study. Both Prime Minister Narendra Modi, in his address to the nation, and Home Minister Amit Shah in his statements in both Houses of Parliament emphasised the need to do so to eradicate terrorism and ensure all-round development of the state. Both the tasks were impeded by Article 370, they averred. The BJP-PDP agreement stated quite contrarily as pointed here earlier.

What also makes the entire exercise unique is the fact that it is for the first time after the linguistic reorganisation of states in 1956 that a state has been converted into a UT. The grant of UT status is as per the aspirations of Ladakhis (read Buddhists) but in the case of Jammu and Kashmir, particularly Jammu, many brows are already being raised though the idea is still in fully sink and euphoria is still at its peak.

Did Modi and Shah duo keep a safety valve option open when they made a remark that option of reverting to statehood is still open? Shah said so in Parliament, while Modi dealt with it in some detail during his address to the nation. Nothing can be said on this with any surety but one thing is clear that alongside dynamism behind this courageous decision there certainly is an air of caution.   It is apparent that the Centre is ready for a long haul against militancy and at the same time tries and pursues all other processes- political as well as administrative.

The partial abrogation of Article 370, which automatically led to the controversial  Article 35A which had resulted from a Presidential order of 1954 getting eliminated, has given long overdue relief to West Pakistani refugees who had all along been fighting for their right to education, property, government jobs and above all right to contest and vote in the state elections, and removed gender bias that flowed through the handle of 35A.

In the similar vein, rights of the Balmiki community members, living in Jammu and engaged as safai karamcharis, have also been restored.

It has been criminal on the part of the past governments, both at the Centre and in the state, to not have removed these inhuman anomalies. The West Pakistani refugees, those who entered into J&K came from Pakistan in 1947 and not PoK, were deprived of their local rights such as voting in local elections, contesting local elections and in the matter of government jobs and acquiring property simply because they were not given state subject rights which now stands abolished.

Even more horrific has been the case of the Balmiki community. They were brought to Jammu from adjoining Punjab during 1960s in the face of a strike by local safai karamcharis. They were promised a Permanent State Subject Certificate to make them eligible for all local facilities but that did not happen till the current changes. On top of that, a government order explicitly stated that their children would only be entitled to take up the jobs of the safai karamcharis only and nothing else.

Thirdly, despite long and protracted legal battle that resulted in partial removal of gender bias, which again was due to Article 35A, some parts of it still existed. The Article 35A prohibited women of the state  from marrying with non-state subjects from inheriting property of parents while those marrying within the state could enjoy the same rights. The state High Court finally ruled in favour of the suffering women but, however, did not allow their children the same inheritance rights.

Article 35A governing conditions, pertaining to West Pakistan Refugees and Balmiki community, flows from the spirit of Article 370, and does not appear in the main text of the Constitution but appears in Appendix 1. It had empowered the J &K Legislature, in the old scheme of things also to define who permanent residents of the state could be, and their special rights and privileges. Since the new Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir, and Ladakh, it all but stands withdrawn.

What has been the impact in the three affected regions of Jammu, Kashmir and Ladakh-Kargil, on ground?

It would be a misnomer to say that the decision has been accepted by people with their heads down. Leaving aside the initial euphoric reactions which in some cases are genuine and in other created and concocted, there is concern on ground in all the three regions which is gradually becoming apparent.

There is no denying the fact that the Buddhist mass of Ladakh by and large has welcomed the acceptance of their decades long demand for a Union Territory but there are already reports of protests in Kargil which has a mixed population of Shias and Buddhists.

Jammu which has a hetrogenous population character like Ladakh, was seen as initially welcoming the move in its totality but purely from the point of view of “abrogating Article 370 to divest Kashmir of its hegemonic character”. However, the clamour for safeguarding the land ownership and jobs has started taking shape with none other than the local BJP leadership taking a lead.

Speaker of the now defunct J & K Assembly, Mr Nirmal Singh has publically demanded that the land rights of people should be safeguarded from outsiders and so the claim over jobs. He has been tendering assurances that the matter has been broached with the Centre and the BJP high command for bringing in a domicile protection mechanism as is in Himachal Pradesh. Similar sentiments are also being expressed by some sections in Ladakh.

So far as Kashmir is concerned it is a combination of many issues for the Kashmiris which are of political, economic and historic nature.

The real test for the Government in Delhi will start now. It would be interesting to see how they deal with the complicacies. Simply pulling wool on the eyes or creating an environment of all is well would be nothing but self-deception.

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