Deception on Article 370

Deception on Article 370

Far from giving Kashmir a preferred status over the other States, it has been put in a position inferior to them

Anyone is perfectly entitled to deceive himself/herself on Article 370,  but no one has a right to deceive the people as well. Their sufferings are not diminished by doses of falsehoods. Speaking on the New Industrial Policy in the Legislative Council on 9 June, Mehbooba Mufti said “Article 370 is our strength and honour. We enter this august House by swearing on the State Constitution and it is empowering for all irrespective of the party grouping”. (Article 370 is not in the State Constitution, but in the Indian Constitution).

She knows very well that Article 370 has been reduced to an empty shell by the 47 Orders unconstitutionally made by the President of India for 50 years on the advice of the Government of India; from 1954 to 1994. All of them were run by the Congress Party, of which her father Mufti Mohammed Sayeed was a member. 260 out of the 395 Articles of India’s Constitution were extended to Jammu & Kashmir. So were 94 out of the 97 entries in the Union List – leaving a balance of 3 for the State to “enjoy”. 26 of the 47 entries in the Concurrent List were also extended to the State. 7 of the 12 Schedules were applied.

This is not “erosion” of Art. 370. “Erosion” is a natural process by efflux of time. This was a calculated, systematic hollowing out of Art. 370. Far from giving Kashmir a preferred status over the other States, it has been put in a position inferior to them. One illustration alone will suffice to prove this. Both Houses of Parliament had to amend the Constitution of India, by an elaborate process under Art. 368, as many as four times to extend President’s Rule in Punjab imposed on 11 May1987. They were the 59th, 64th, 67th and 68th Constitution Amendments. For the State of Jammu & Kashmir, mere executive Orders under Art. 370 sufficed; from 18 July 1990 to 1996. They were dated 24 February 1993 and 19 February 1994. Each was made “with the concurrence of the Government of the State of Jammu & Kashmir”. There was no elected Government in the State from 1990 to 1996. The bogus “consent” was given by the Centre’s own nominee, the Governor. It was Governor Jagmohan who “consented” to the application to J&K   of Art. 249. (It empowers the Union to legislate even on a matter in the State list if the Rajya Sabha so resolves). This was done on 30 July 1986 G.A. Lone, former Secretary, Law and Parliamentary Affairs, described how the “manipulation” was done secretly “in a single day” in the absence of a Council of Ministers. Jagmohan did not stop at that. He also abolished the State’s residuary powers of legislation.

This is the state of Article 370 today. As this writer has repeatedly pointed out, on the convening of Kashmir’s Constituent Assembly on 31 October 1951, the State Government lost its interim power to accord any “Concurrence” which, in any case, was subject always to ratification by the State’s Constituent Assembly. On its dissolution on 17 November 1956, the President of India (i.e. Government of India) also lost any power and right to extend any provision of India’s Constitution to the State. All the Presidential orders are therefore, null and void.

Mehbooba Mufti would do well to refer to her own party’s document entitled “Jammu & Kashmir: The Self-Rule Framework for Resolution” published at Srinagar in October 2008. It sets out some of the graver  inroads into Kashmir’s autonomy by violations of Article 370. Its demands were just – delete those amendments which increase the Centre’s powers as also the ones to Kashmir’s Constitution. “There is a compelling reason for rolling back Article 356” (imposition of President’s Rule) and much else besides.

Its draftsman, as the language suggests, is now a minister in PDP cabinet. He was also the draftsman of the PDP’s Manifesto for the 2014 elections, “An Aspirational Agenda” which contained this solemn pledge. “Use Article 370 itself to restore the original special status of the State”. This is perfectly possible. One order under Art. 370 can amend or delete another. A Memorandum submitted by the National Conference to Prime Minister P.V. Narsimha Rao, on 4 November 1995, urged, with copious references, that “Article 370 (1) (d) is not and cannot just be a one-way stream … There is no legal impediment, as is evident from the pronouncements of the Supreme Court, in reversing the dilution made to the autonomy  of the State”. 

 Yet the PDP-BJP Coalition’s “Agenda of the Alliance” (March 2015) says nothing of a roll back to “the original” strength of Art. 370. On the contrary, it not only recognizes “the different positions” of both parties but also goes on to “appreciating the perceptions BJP and PDP have on the constitutional status of J&K”. It adds immediately thereafter: “considering the political and legislative realities, the present position will be maintained on all the Constitutional provisions pertaining to J&K” – that is, all the 47 orders.

 It further adds immediately thereafter “including the special status in the Constitution of India”. Is this expression anything but an attempt to deceive, a palpable fraud. Its draftsman was – you have guessed it – the very same too-clever-by-half. This time he had the inspiring company of the RSS’ Ram Madhav to remind him of the political “realities” – if you want the BJP’s support forget “self-rule” for Kashmir and all the talk of roll back; accept the shell of Art. 370 or we will join hands with the N.C. This is the political reality – the lust for power by both the PDP and the NC.

On 6 June, the CM Mehbooba Mufti claimed “after Parliament, only J&K Assembly has the powers to make legislation which gives it the distinction of being a unique and empowered legislature in the country.” Really? Then why did paragraph 119 of the Self-Rule document of 2008 speak of “the assault on the constitutional power of the State legislature”? And why did the PDP’s Manifesto for the 2014 elections demand “Restore powers of the State Assembly”? Doesn’t Mehbooba Saheba read her own party’s documents?

There is, however, a sinister aspect to this drama. On 25 February 2015 the Narendra Modi Government formally declared in the Rajya Sabha, through its Minister of State for Home Haribhai Parathibhai Chaudhary, that “there is currently” no proposal “under consideration” for the repeal of Art. 370. It was a formal considered, written statement. The reason which he gave should have alarmed the PDP. “Through this Article the Union parliament gets jurisdiction to enact laws on matters specified either in the Instrument of Accession or by later addition with the Concurrence of the Government of State of J&K”. The same assertion to unlawful power. 

We have heard all this fifty years earlier. On 4 December 1964, the Union Home Minister, G. L. Nanda, urged the Lok Sabha not to talk of repeal of Art. 370. He explained that Art. 370 “is a tunnel. It is through this tunnel that a good deal of traffic has already passed and more will”. Nothing has changed.

In full knowledge of this declaration in Parliament on 25 February 2015, the PDP entered into a coalition with the BJP, an acknowledged and veteran opponent of Article 370, on 1 March 2015. The parleys had begun much earlier, of course. 

The hilarious rhetoric of North Pole and South Pole was used as a fig leaf to cover his abject surrender. Mehbooba Mufti has her own brand of rhetoric. And the draftsman of three contradictory documents of 2008, 2014 and 2015 watches the fun.

The record establishes incontestably that, eager to keep out Omar Abdullah from power – he was also ready for a deal with the BJP, – the PDP abjectly surrendered to the BJP’s demands. It no longer talks of “Self Rule” for Kashmir. It talks about Article                                                                                                                370 is sheer deception. And, pray, where are the crores from New Delhi that was dangled before the people to justify the sordid deal with the BJP. 

The BJP’s real face in J&K is Union Minister Jitendra Singh, of Jammu fame. He declared there on 26 June 2016 that “Jammu & Kashmir is the jugular vein of Indian democracy”. The people’s will is, therefore, irrelevant. It is an exemplary form of democracy to which New Delhi has treated the people of State since the accession, regardless of their will. Not to forget the barbaric outrages inflicted on the people. The Muftis and their cohorts own a slice of power, for a brief period, by betraying their people and their own pledges on Article 370 and – on SELF RULE.

The record proves that it is not the PDP but the BJP which has emerged as the dominant partner. An RSS man was made Speaker of the Assembly – very significantly. The latest case is illuminating FIRs on the 22 arrested in the Jammu riots were cancelled within 48 hours. In 2015 300 persons were arrested in Srinagar and more than 800 state wide. What of them? What of the Hurriyat leaders who are subjected to curbs? Omar Abdullah, Mufti Muhammed Sayeed and daughter Mehbooba agreed on one thing – keep Syed Ali Shah Geelani confined to his house. Clearly they acted on New Delhi’s orders. The people of Kashmir did not deserve rulers like the Abdullahs or the Muftis.