SN Misra
The midnight swoop on political leaders of Jammu and Kashmir, movement of additional troops into Jammu and Kashmir and abrogation of Article 370 and Article 35A are reminiscent of the dark days when Emergency was imposed by the Indira Gandhi led government in 1975. Jammu & Kashmir has a vexatious history as it acceded to India under the unusual circumstance. Unlike most princely states, J&K’s fate could be decided before Independence. Maharaja Hari Singh took a recalcitrant position, and did not decide on accession either to Pakistan or India. The Pakistan sponsored invasion altered his plans to be autonomous and the Indian troops bailed him out of a crisis. He had to accede to the Indian Union.
Sheikh Abdullah, who was the prime opponent of the Maharaja then and supporter of Jawaharlal Nehru, wanted that the special status of J&K under Article 370 should be made permanent. He wanted “iron clad autonomy” to J&K. However, Nehru denied him this benefit. Article 370(3) contained a provision that made it temporary and one that could be abrogated by the President on the recommendation of the Constituent Assembly of J&K. The J&K Constituent Assembly ceased to function from January 26, 1957, and they have a separate Constitution (1957) with separate status.
Be that as it may, one major agenda of the BJP has been to scrap Article 370 and Article 35A that give exclusive right of acquisition and disposal of property inside J&K to Kashmiris.
This was the festering point on which Dr Syama Prasad Mukherjee, who was initially a Cabinet Minister under Nehru, resigned from the Cabinet. Mukherjee wanted Articles 370 and 35A to be scrapped. He tried to enter J&K to protest against the provision to carry separate ID cards. But he died under controversial circumstances June 23, 1953, which provided the ballast RSS needed to strengthen its appeal to scrap Articles 370 and 35A. The massive mandate Modi received has helped the BJP led government actualise its dream of a ‘non Balkanised’ India.
In the past, too, the President has issued several notifications in consultation with the state Assembly, for applying specific laws to J&K. There has also been a spate of cases in the Supreme Court, wherein appellants sought scrapping of Articles 370 and 35A.
The draconian manner in which the spirit of the Constitution is being vitiated in Jammu and Kashmir seems to be a repeat of the disturbing days of the Emergency, when freedom of the Press was clamped and opposition leaders were put behind bars
A very important judgement was given by the Supreme Court in SBI vs Santosh Gupta (2017) Case. The question posed was whether the SARFAESI Act of 2007 would be applicable to Jammu and Kashmir or not. The High Court of Jammu and Kashmir denied the application. This was overruled by Justices Joseph and Nariman; they ruled that “Jammu and Kashmir has no vestige of sovereignty outside India”. Accordingly, the provision of SARFAESI Act shall be applicable to that state. However, the Supreme Court in the past seems to have taken a view that Article 370 has become a permanent provision of the Indian Constitution.
The home minister tried to clarify in Parliament that since J&K is currently under President’s Rule, the notification of the President to abrogate Articles 370 and 35A has been taken after taking the consent of the Governor. This is clearly indefensible as Article 370(3) clearly mentions that recommendation of the Constituent Assembly is necessary.
Any repeal of article of the Constitution or amendment requires two-third majority in both Houses of Parliament to pass muster. Clearly the government tried to bypass this process and resort to this unusual move to repeal the Article, when the state assembly is not in session. Farooq Abdullah had met with the Prime Minister recently and requested early election in Jammu and Kashmir for the political process to take over from President’s Rule.
Clearly this process of consultation with all the stakeholders and opposition parties should have first happened instead of making it fait accompli. This is clearly undemocratic and smacks of a fascist tendency. While arguing before the Supreme Court in the Kesavananda Bharati Case (1973), Nani Palkhivala, the noted jurist, had observed that the party in power with its brute majority was trying to have unfettered powers of amending the Constitution, with a fascist tendency, as did Hitler before the Second World War. The judges were of the view then that Palkhivala was being alarmist. He was actually prescient. Three judges were superseded as they did not agree with the political philosophy of the party in power. Subsequently Emergency was also imposed. The draconian manner in which the spirit of the Constitution is being vitiated in Jammu and Kashmir seems to be a repeat of the disturbing days of the Emergency, when freedom of the Press was clamped and opposition leaders were put behind bars. The essence of democracy is discussion, deliberation, and conciliation with all stakeholders. AS Dulat in his erudite book ‘Kashmir – The Vajpayee Years’, brings out how the problem of J&K was sought to be solved by Vajpayee through a process of consultation.
The present initiative by the government is likely to be challenged in the Supreme Court. It is really surprising when the issue of status of Article 370 and Article 35A are subjudice in the Supreme Court, it has resorted this unusual route to bypass the court. There is serious rumbling that the spirit of secularism is being annihilated and the result of the election clearly shows a tendency towards polarisation of Indians along religious lines.
Salman Khurshid, in his recent book also laments that Muslims have become ‘invisible’ citizens. The making of J&K into a Union Territory and the control over law and order by the Centre will make it a police state. The shadow of terrorism would further lengthen. The democratic process of discussion and deliberation has been given a short shrift to achieve a long-awaited resolution.
The writer teaches Constitutional law. e-Mail: misra.sn54@gmail.com.
