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| Radha's views on Article 370 flawed | | | EARLY TIMES REPORT
JAMMU, May 30: Interlocutor on Jammu & Kashmir Radha Kumar said the other day that "there are several states that have different relationships to the Union" and that Article "371, which follows 370, actually included a range of nine others with 'special' statuses, including Maharashtra, Goa and Daman and Diu…For the sake of clarity, it made sense for J&K to be also afforded the 'special' status. If the general public could understand that this is a special status just like other states have and in no way weakens the constitutional growth of India, there would be grater acceptance".
It is wrong comparison. Article 370 is indeed an anti-democratic and anti-people. It is restrictive in character. For, it seeks the exclusion of Jammu & Kashmir from the political and constitutional organization of India. In fact, it has kept the state aloof from the national mainstream and the result is subversion of all democratic processes, democratic institutions and the rule of law. Article 370 has, in addition, disrupted all the processes designed to secularize the state polity and society and protect the non-Muslim minorities against exclusion by the majority and defend and advance their rights. It is an Article that simply creates another state on the Indian territories on the ground that it is a Muslim-majority area. There is no doubt whatever that Article 370 has created two states on the Indian territories - one is the Indian Union under one set of laws and the other is the Muslim-majority Jammu & Kashmir State under a special dispensation.
Besides, Article 370 has only served to empower the state's ruling elite to deprive the people of the state of their natural right to exercise all normal civil and fundamental rights, including the right to equality, protection against discrimination on the basis of religion, caste, place of birth and race - right that is available to the rest of the Indians under the Indian Constitution. But more than that, Article 370 denies the right to judicial remedies in the sense that it practically bars the Supreme Court of India from enforcing the civil and fundamental rights, which the Indian Constitution recommends for all Indians, barring the people of Jammu & Kashmir.
To be more precise, Article 370 is nothing but an instrument in the hands of the votaries of self-rule and greater autonomy --- instrument that enables them to subvert the Indian polity both from within and outside and cause one grievous injury after other to the minorities. It has not only promoted politics of separatism based on religious considerations, but also kept the state out of the ambit of those laws which are aimed at ending exploitation, ensuring social regeneration and making the application of the rule of law mandatory.
Article 371 under no situation can be equated with Article 370. Article 371 doesn't empower any of the states to enjoy a special politico-constitutional status. Nor does it give them the right to have a separate constitution and separate flag or the right to exercise residuary powers. Article 371 simply empowered the President of India to set up "separate development boards for Vidarbha and Marathawada" (Maharashtra) and "Saurashtra and Kutch" (Gujarat).
Article 371 only protected the "religious or social practices of the Nagas" and their "customary laws" and empowered the Nagaland Assembly to adopt or not to adopt the Central laws concerning "ownership and transfer of land and its resources." It also gave "special responsibility" to the Governor of Nagaland "with respect to law and order in the State of Nagaland."
Article 371B only provided for the "constitution and functions of a committee of the Legislative Assembly of the State (of Assam) consisting of "members of that Assembly elected from the tribal areas…" and for a similar committee in respect of Manipur comprising "members" of the Assembly "elected from the Hill areas of the State."
Article 371C required the Governor to "make a report to the (Union) President regarding the administration of the Hill areas in the State in the State of Manipur. Article 371D empowered the President of India to "provide for equitable opportunities and facilities for the people belonging to different parts of the State" (of Andhra Pradesh).
Article 371E empowered the Parliament to "establish a University in Andhra Pradesh."
Article 371F authorized the Parliament to "protect the rights and interests of the different sections of the population of Sikkim" by creating or earmarking certain Assembly seats for "candidates belonging to such sections." It also says that "the Governor of Sikkim shall have special responsibility for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim…"
Similarly, Article 371G said: "No Act of Parliament in respect of religious or social practices of the Mizos, Mizo customary laws and practices, administration of civil and criminal justice involving decisions according to Mizo customary laws and ownership and transfer of land apply to the State of Mizoram by a resolution so decides…"
As for Article 371H, it gave "special responsibility (to the Governor) with respect to law and order in the State of Arunachal Pradesh and in the discharge of his functions in relation thereto, the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken."
Thus, Article 371 is, unlike Article 370, beneficial for the ignored and marginalized sections of society and the ignored and underdeveloped regions as, for example, Telangana in Andhra Pradesh. It also empowers the Governors in certain Border States to exercise special powers and special responsibilities and act according to their individual judgment. In other words, Article 371 empowers the people. Article 371 unites and Article 371 divides. In fact, Hasrat Mohani, a Muslim member of the Indian Constituent Assembly, had warned the constitution-framing body in October 1949, that "the grant of special status to Kashmir" on the score of religion "would enable it to assume independence afterwards". He had said so while participating in the discussion on Article 306A (Article 370).
Article 370 needs to be abrogated. For, it is fundamentally bad, reactionary and anti-minorities. What is needed is the application of Article 371 to Jammu & Kashmir, as it houses several minorities, as also it has two grossly neglected regions - Jammu and Ladakh - and as it has to deal with an extraordinary situation created by communal elements and separatists in Kashmir. Those who are equating Article 370 with Article 371 are blissfully ignorant.
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