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| Is Article 356 really applicable to Jammu and Kashmir? | | PDP's Flawed Formulation | | Rustam
JAMMU, Mar 15: Is Article 356 of the Indian Constitution really applicable to Jammu and Kashmir? Yes, if one goes by what the father and founder of the People's Democratic Party and former Chief Minister Mufti Mohammad Sayeed said two days ago (March 13) while addressing a public meeting at Parade Ground, Jammu. He had, among other things, said: "Article 356 should not be made applicable in Jammu and Kashmir."
Was his formulation based on the actual constitutional position? The answer simply cannot be in the affirmative. In fact, the answer should be a big NO. What does Article 356 provide for? Who has the power to invoke what lays embodied in this Article and what is the procedure? Article 356 says, "If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation" bring the State under his/her direct rule.
In other words, Article 356 is made applicable in case there is breakdown of constitutional machinery in any State. Before January 3, 1977, no State could be kept under the President's Rule for more than six months. It was the Forty Second Amendment Act, 1976 that enhanced the period from six months to one year. The amendment also said that in case any particular State was to be kept under the President's Rule beyond a period of one year the Government of India would be required to amend the Constitution. In other words, it said that the entire nation had to be taken into confidence before extending the period of the President's Rule beyond one year. To be precise, the said amendment required the Government of India to take both the Houses of Parliament in order to extend the President's rule beyond a period of one year.
Take, for example, the case of the militant-infested and troubled Punjab. It remained under the President's Rule from 1987 to 1992, when Sardar Beant Singh of the Congress became the Chief Minister of Punjab. In between, the Indian Constitution was amended as many as four times. It was amended in 1988, 1989, 1990 and 1991. It was a constitutional requirement.
What about Jammu and Kashmir? Jammu and Kashmir remained under the Governor's Rule and President's Rule between January 19, 1990 and October 9, 1996. In other words, the State remained under the Governor's Rule and President's Rule for 6 years 8 months 21 days. Jammu and Kashmir is the only State in the Union that can be kept under the Governor's Rule for a maximum period of six months under section 92 of the Jammu and Kashmir Constitution, 1957.
Did the Government of India take the case of Jammu and Kashmir to the Parliament even once? No, it didn't because Article 356 was not applicable to the State. Had the constitutional position been otherwise or at par with other States of the Union like Punjab, the Government of India would have no other option but to refer the case of Jammu and Kashmir to the Parliament and obtain its consent. This means the Government of India had to amend the Constitution of India at least six times. That it didn't happen should clear all the cobwebs of confusion and establish that Article 356 is not really applicable to Jammu and Kashmir.
Then the question arises how was it that Jammu and Kashmir was kept under the President's rule for more than six years. The Answer is simple and straight. It was through the instrumentality of Article 370 that the President of the Union kept the State under his direct rule. It needs to be underlined that the President of India exercises absolute executive powers under Article 370. Using these powers, the President can keep Jammu and Kashmir under his/her rule for any number of years without bringing this issue to the notice of the Parliament. This is the constitutional position. Can any Kashmir leader refer to any other provision under which the State was kept under the President's Rule for more than six years? No Kashmiri leader has any answer to this direct question.
The Kashmiri leadership would do well to revise their views on Article 356. If it is really interested to obtain a status similar to the one other States of the Union enjoy under the Indian Constitution, it has no other alternative but to demand abrogation of Article 370, which has, instead of giving anything special to the people of Jammu and Kashmir, only deprived them of even those normal civil and political rights which are available to the rest of the Indians across the country. It should remember Article 370 is the mother of all the ills afflicting the people of the State. The sooner it goes lock, stock and barrel the better. The people of the State need constitutional guarantees and fair treatment and not divisive self-rule or greater autonomy. Both these concepts are negation of the people's democracy and both these concepts run counter to the very idea of India as a democratic and secular State. —Early Times Report |
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