Scrapping Article 370 and 35 A : Flogging a dead horse

SCRAPPING ARTICLE 370 AND 35 A : FLOGGING A DEAD HORSE

By Satyen Mohapatra

April 12, 2019

New Delhi: By including the scrapping of controversial Article 370, and (Article 35 A for the first time) in its manifesto, BJP has sought to make it clear ( at least to its core constituency) that it has not deviated from its basic ideological stand.

Apart from Ram Mandir issue the other highly polarizing and emotive issue in the BJP’s arsenal has always been the issue of Article 370 and 35 A.

BJP has always sought the scrapping of these two Articles as its own article of faith. It believes that they constitute the main road block to the development of the state and its integration with the mainstream.
An understanding of these Constitutional provisions will clarify their socio-economic and political importance.

At the time of India’s independence 565 princely states which together held nearly half of India’s geographical area did have a choice to become Independent or individually accede either to Pakistan or to India.

All credit goes to the tough statesman Sardar Vallabhbhai Patel who used both diplomatic and military skills to bring 562 states within the Indian fold.

The Muslim majority Jammu and Kashmir region under the rule of Hindu Raja Hari Singh kept delaying the decision either way perhaps wanting Independent status like some other princely states.

But in late October, 1947 when armed tribal Pashtoons from Pakistan invaded Kashmir while the King faced rebellion and violence from certain areas in J&K , the King’s hand was forced. Its history how Maharaja Hari Singh in a day signed the Instrument of Accession and Indian troops were rushed in to throw out the tribals .

Pakistan naturally cried foul alleging that Instrument of Accession was given under duress stoutly rejected by India. The bone of contention being whether Maharaja signed the Accession before or after the arrival of Indian military. But what actually transpired on those two crucial days Oct.26-27 , 1947 is mired in controversy. Thus began decades old Kashmir dispute and conflict with Pakistan which continues till today.

India’s official position has been the Accession was signed on Oct.26 and was accepted by Lord Mountbatten of Burma, Governor-General of India, on 27 October 1947.

Unlike Accessions signed by other princely states, Kashmir’s accession was conditional it demanded and got from India special privileges at the time of Accession itself . Clearly other states of India did not make such demands and perhaps India would not have fulfilled their demands perhaps because they were not strategically important as J&K at the international border of Pakistan and China.

According to the terms of the Instrument of Accession, India’s jurisdiction was to extend to external affairs, defence and communications only. On all other matters the government of Kashmir was free to make its own laws.

The Indian Constituent Assembly framed and adopted Article 370, which ensures the special status and internal autonomy for Jammu and Kashmir, with Indian jurisdiction in Kashmir limited to the three areas agreed in the IOA, namely, defence, foreign affairs and communications. Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.

The fact that Jammu and Kashmir could have its own separate Constitution , flag, and even its own President and Prime Minister is something which seems bizarre today.

But such steps could be taken under the powers Jammu and Kashmir enjoyed under the Instrument of Accession. The state had its own president and prime minister till 1965, and continues to have its own constitution, flag and penal code because of its special status accorded under Article 370.

Article 35A was incorporated in the Constitution allowing J&K Assembly to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

The BJP’s grouse was that Article 35 A restricted citizens from other parts of India from getting employment or buying property within Jammu and Kashmir a clear violation of fundamental Rights under Constitution of India.

For the right wing hindutva party like BJP which grew out of RSS having visions of ‘Hindu Rashtra’, Jammu and Kashmir’s special status was against their nationalistic concept of one nation, one Constitution and one flag and therefore scrapping it has always been one of its main agenda even when BJP had just two members in Parliament.

The ideological and political goal was to be fulfilled whenever BJP came to power. Over decades the issue of Article 370 and 35 A have raised by BJP for rousing and uniting pro-Hindu forces in its favour particularly during election time. An issue which naturally polarized people. The fact that Kashmir was a Muslim majority state was also not hidden.

The mention of the intention to abrogate Article 370 and 35 A in its manifesto even today has led to strong reaction with political parties in Jammu and Kashmir warning that Modi government should not “play with fire” and that it would lead to “unimaginable repercussions”. Strong terms like Jammu and Kashmir will become “free” from India with Indian Army becoming “Occupation Force” have been used. There were also talk of reviving the posts of sadr-e-riyasat (president) and Prime minister for Jammu and Kashmir.
Much of it is political posturing meant for their own electorate as political pundits pointed out that the party making most vitriolic attack like the PDP, till recently ruled Jammu and Kashmir in alliance with none other than BJP.

Some politicians have also come out to say that the threat of abrogation of the provisions was a way of hiding from real issues and hoodwinking people.

Reading too much into the consequences of Article 370’s may also not be correct because over the years much of Article 370s powers have been sufficiently eroded through Presidential orders for better administration of Kashmir through application of several provisions of the Constitution of India which are applied to the whole country .There is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction.

Secondly and more importantly its abrogation will not lead to snapping of ties with India some scholars point out because Kashmir became a part of India not by inclusion of Article 370 in the Constitution but by the Instrument of Accession signed by Maharaja Hari Singh.

Just days before the BJP came out with its manifesto on April 3,2019, Supreme Court declared that Article 370 has acquired a permanent status since the State Constituent Assembly has ceased to exist, President of India would not be able to fulfill the mandatory provisions required for its abrogation. The Centre has been asked to respond in three weeks.

Supreme Court has earlier set aside the verdict of Jammu and Kashmir High Court that had held that any law made by Parliament, which affects the laws made by state legislature, cannot be extended to Jammu and Kashmir .

According to rulings of Supreme Court J & K citizens are not “sovereign” in the sense of its residents constituting a separate and distinct class in themselves. They are “first and foremost” citizens of India and the state has “no vestige” of sovereignty outside the Indian Constitution and its own. It does not have “absolute sovereign power” to legislate laws touching the rights of its permanent residents regarding their immovable properties.

In this kind of scenario by raising the issue of Article 370 and 35 political parties are just trying to flog a dead horse to make political capital during election season.

India News Stream