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| Article 370-A challenge to the Indian nation | | | By Mahesh Kaul
There is no doubt that Article 370 of the Constitution of India has been the centre of frequent debate. But it has been interpreted erroneously, as if it is the cardinal principle of the constitutional and political status of Jammu & Kashmir. The analysis of Article 370 has been based more on rhetoric and less on the actual nature of the Article.
Article 370 was temporary, and hence, the so-called 'special status' of Jammu & Kashmir was also temporary. It was never meant to be permanent as understood by the forces who want to take the State out of the political and constitutional ambit of India. It is pertinent to underline the provisions incorporated in Article 370 that empowered the President of India to:
Transfer powers to the Union with regard to such other subjects in the Union list and the Concurrent List of the 7th Schedule of the Indian Constitution, which the President specified with the concurrence of the State Government.
Extend to the State the provisions of the Constitution of India, which were to be applied to the State with such modifications and expectations as the President would specify.
It is amply clear that there is nothing in the above mentioned points that makes the Act sacrosanct. A careful perusal of Article 370 shows clearly that there are no limitations in terms of amending it. Thus, technically speaking, there is no hurdle in abrogating the Act if the Parliament so desires.
Article 370 is responsible for insulating the State of Jammu & Kashmir from the national mainstream. The wrong interpretation of this Article as the guarantor of a 'State within the state' is a falsification of the constitutional reality. This canard has helped Muslim separatist leaders in Jammu & Kashmir argue that the 'special status' was given to maintain the State's Muslim majority character.
The wrong interpretation of Article 370 has created many fault lines that are now staring the nation in the face. It is a strange case in Indian constitutional history that a weak Article has been given teeth by out-of-context connotations that are now posing a challenge to secular nation-building in Jammu & Kashmir.
Separatists and so-called mainstream parties based in the Valley are using Article 370 as a tool to propagate their communal agenda and subjecting non-Muslim minorities into servitude of their communal politics. The result has been demographic change in the entire State with internal displacement of religious minorities like Kashmiri Pandits in 1990 and the consolidation of majoritarian communal pockets that fuel separatism.
Detractors of India argue that Article 370 was meant to address the wrongs of the accession of the State to the Indian Union as Jammu & Kashmir was a Muslim majority State. Therefore, they argue, its separate identity had to be maintained within the Indian setup. They wrongly believe that it was only after being offered political concessions (like Article 370) that princely State of Kashmir and Jammu acceded to the Indian Union, else it would have joined Pakistan, a Muslim-majority nation. The people are being fed half-truths about the mechanism of Partition and the nature of the instrument of accession.
This again is a diversion from the constitutional reality that shaped both India and Pakistan at the time of Partition. The reality being that it was British India that was to be partitioned and the princely States were not part of the Partition plan. For the princely States, there were only two options of accession - India or Pakistan. There was no third option for independence. Above all, the sovereignty lay with the ruler and not the subjects of the princely State. To project Article 370 as an instrument for achieving Muslim influence or for fanning Kashmiri separatism in Jammu & Kashmir is not only a perversion of an absolute order, but also questions the basis for the creation of India and Pakistan.
Constitutional experts have the added responsibility of interpreting this temporary Article 370 in the right perspective and the sense in which it was framed, in addition to the foundation which has inherent in it, the mechanism of its abrogation. |
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