NEW DELHI: Minister of state in the Prime Minister's Office, Jitendra Singh, on Tuesday, triggered a controversy after he pitched for a debate on BJP's stand demanding the repeal of Article 370 which guarantees special status for J&K.
Singh, BJP MP from Udhampur in J&K, argued that the debate would help convince the "unconvinced" that the article had actually worked more to J&K's disadvantage.
The minister's pitch was in line with the stand that Prime Minister Narendra Modi took while campaigning in J&K.
Soon after, Jammu & Kashmir chief minister Omar Abdullah strongly objected to the minister's statement and tweeted, "So the new MOS PMO says process/discussions to revoke Art 370 have started. Wow, that was a quick beginning. Not sure who is talking."
He went on to add, "Mark my words & save this tweet - long after Modi Govt is a distant memory either J&K won't be part of India or Art 370 will still exist."
PDP chief Mehbooba Mufti also commented on the issue, adding that irresponsible utterances on Article 370 should be stopped as they could have serious repercussions in J&K.
Singh, however, retracted his earlier statement adding that the 'controversy is totally baseless'.
Here, it is important to understand what actually constitutes Article 370 and how it affects crucial aspects such as governance in Jammu & Kashmir.
1) What is Article 370?
Article 370 of the Indian Constitution is a 'temporary provision' which grants special autonomous status to Jammu & Kashmir. Under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special provisions", the state of Jammu & Kashmir has been accorded special status under Article 370. All the provisions of the Constitution which are applicable to other states are not applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for governor and prime minister in place of chief minister.
2) History of Article 370
The provision was drafted in 1947 by Sheikh Abdullah, who had by then been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and Jawahar Lal Nehru. Sheikh Abdullah had argued that Article 370 should not be placed under temporary provisions of the Constitution. He wanted 'iron clad autonomy' for the state, which Centre didn't comply with.
3) Provisions of Article 370
According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government's concurrence for applying all other laws. Thus the state's residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir. Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
Article 370: 10 facts that you need to know
IndiaToday.in New Delhi, May 28, 2014 | UPDATED 15:39 IST
But what exactly is Article 370 and why is the Article so important to keep Jammu and Kashmir as a part of India? Here are 10 facts that explain why:
1. According to the Constitution of India, Article 370 provides temporary provisions to the state of Jammu and Kashmir, granting it special autonomy.
2. The article says that the provisions of Article 238, which was omitted from the Constitution in 1956 when Indian states were reorganised, shall not apply to the state of Jammu and Kashmir.
3. Dr BR Ambedkar, the principal drafter of the Indian Constitution, had refused to draft Article 370.
4. In 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader Sheikh Abdullah to consult Ambedkar (then law minister) to prepare the draft of a suitable article to be included in the Constitution.
5. Article 370 was eventually drafted by Gopalaswami Ayyangar
6. Ayyangar was a minister without portfolio in the first Union Cabinet of India. He was also a former Diwan to Maharajah Hari Singh of Jammu and Kashmir
7. Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under Temporary and Transitional Provisions.
8. The original draft explained "the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948."
9. On November 15, 1952, it was changed to "the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office."
10. Under Article 370 the Indian Parliament cannot increase or reduce the borders of the state.
Understanding Article 370--The Hindu-06.12.2013
Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future.
At the Bharatiya Janata Party’s recent Lalkar rally in Jammu, its prime ministerial candidate, Narendra Modi, called for a debate on Article 370. This is encouraging and suggests that the BJP may be willing to review its absolutist stance on the Article that defines the provisions of the Constitution of India with respect to Jammu and Kashmir. Any meaningful debate on Article 370 must, however, separate myth from reality and fact from fiction. My purpose here is to respond to the five main questions that have already been raised in the incipient debate.
Why it was incorporated
First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: “Why this discrimination please?” The answer was given by Nehru’s confidant, the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still “unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies.”
The involvement of the United Nations brought an international dimension to this conflict, an “entanglement” which would end only when the “Kashmir problem is satisfactorily resolved.” Finally, Ayyangar argued that the “will of the people through the instrument of the [J&K] Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.” In sum, there was hope that J&K would one day integrate like other States of the Union (hence the use of the term “temporary provisions” in the title of the Article), but this could happen only when there was real peace and only when the people of the State acquiesced to such an arrangement.
Second, did Sardar Vallabhbhai Patel oppose Article 370? To reduce the Nehru-Patel relationship to Manichean terms is to caricature history, and this is equally true of their attitude towards Jammu and Kashmir. Nehru was undoubtedly idealistic and romantic about Kashmir. He wrote: “Like some supremely beautiful woman, whose beauty is almost impersonal and above human desire, such was Kashmir in all its feminine beauty of river and valley...” Patel had a much more earthy and pragmatic view and — as his masterly integration of princely states demonstrated — little time for capricious state leaders or their separatist tendencies.
But while Ayyangar negotiated — with Nehru’s backing — the substance and scope of Article 370 with Sheikh Abdullah and other members from J&K in the Constituent Assembly (including Mirza Afzal Beg and Maulana Masoodi), Patel was very much in the loop. And while Patel was deeply sceptical of a “state becoming part of India” and not “recognising ... [India’s] fundamental rights and directive principles of State policy,” he was aware of, and a party to, the final outcome on Article 370.
Negotiations
Indeed, the synergy that Patel and Nehru brought to governing India is evident in the negotiations over Article 370. Consider this. In October 1949, there was a tense standoff between Sheikh Abdullah and Ayyangar over parts of Article 370 (or Article 306A as it was known during the drafting stage). Nehru was in the United States, where — addressing members of the U.S. Congress — he said: “Where freedom is menaced or justice threatened or where aggression takes place, we cannot be and shall not be neutral.” Meanwhile, Ayyangar was struggling with the Sheikh, and later even threatened to resign from the Constituent Assembly. “You have left me even more distressed than I have been since I received your last letter … I feel weighted with the responsibility of finding a solution for the difficulties that, after Panditji left for America ... have been created … without adequate excuse,” he wrote to the Sheikh on October 15. And who did Ayyangar turn to, in this crisis with the Sheikh, while Nehru was abroad? None other than the Sardar himself. Patel, of course, was not enamoured by the Sheikh, who he thought kept changing course. He wrote to Ayyangar: “Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people.” But it was Patel finally who managed the crisis and navigated most of the amendments sought of the Sheikh through the Congress party and the Constituent Assembly to ensure that Article 370 became part of the Indian Constitution.
Third, is Article 370 still intact in its original form? One of the biggest myths is the belief that the “autonomy” as envisaged in the Constituent Assembly is intact. A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh, the subsequent series of Presidential Orders have made most Union laws applicable to the State. In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.
Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended.
Gender bias?
Fifth, is Article 370 a source of gender bias in disqualifying women from the State of property rights? Article 370 itself is gender neutral, but the definition of Permanent Residents in the State Constitution — based on the notifications issued in April 1927 and June 1932 during the Maharajah’s rule — was thought to be discriminatory. The 1927 notification included an explanatory note which said: “The wife or a widow of the State Subject … shall acquire the status of her husband as State Subject of the same Class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.” This was widely interpreted as suggesting also that a woman from the State who marries outside the State would lose her status as a State subject. However, in a landmark judgement, in October 2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent resident of the State will not lose her permanent resident status on marrying a person who is not a permanent resident, and will enjoy all rights, including property rights.
Finally, has Article 370 strengthened separatist tendencies in J&K? Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services. Article 370 is synonymous with decentralisation and devolution of power, phrases that have been on the charter of virtually every political party in India. There is no contradiction between wanting J&K to be part of the national mainstream and the State’s desire for self-governance as envisioned in the Article.
Separatism grows when people feel disconnected from the structures of power and the process of policy formulation; in contrast, devolution ensures popular participation in the running of the polity. It can be reasonably argued that it is the erosion of Article 370 and not its creation which has aggravated separatist tendencies in the State. Not surprisingly, at the opposition conclave in Srinagar in 1982, leaders of virtually all national parties, including past and present allies of the BJP, declared that the “special constitutional status of J&K under Article 370 should be preserved and protected in letter and spirit.” A review of its policy on Article 370, through an informed debate, would align today’s BJP with the considered and reflective approach on J&K articulated by former Prime Minister Atal Bihari Vajpayee. Only then would the slogans of Jhumuriyat, Kashmiriyat and Insaniyat make real sense.
(Amitabh Mattoo is Director, Australia India Institute, Professor of International Relations, University of Melbourne and Jawaharlal Nehru University.)
LUCKNOW: Commenting on the controversy raging over the comments made by MoS in the PMO Jitendra Singh over the need for a "rethink" of Article 370, senior Congress leader and Rajya Sabha MP Dr Karan Singh said he has "been distressed by the fierce controversy that has broken out in the press and electronic media with regard to Article 370, flowing from an avoidable statement by the MoS in PM's office."
In a statement issued on Thursday, the veteran leader said, "The whole question is extremely sensitive and must be handled coolly and in a mature fashion. The sort of statements issued from both sides will only create further turmoil and tension in the Jammu & Kashmir state."
Singh, whose father Maharaj Hari Singh agreed to accede to India by signing the Instrument of Accession in October 1947 said his father had taken the decision under "unusual circumstances" and said any "steam-roller approach would only increase tensions instead of quelling things.
He said, "Let it be recalled that my father Maharaja Hari Singh signed the Instrument of Accession in October 1947 under unusual circumstances when a full-scale war was raging due to the Pakistani based tribal invasion. It is true that that Instrument was exactly the same as the document signed by all the other former provincial states. However, whereas the other states later signed merger agreements, the relationship of Jammu & Kashmir with the rest of the country was governed by a special set of circumstances, and hence given a special position. The Constitution of Jammu & Kashmir, which I signed into law in 1957, is still in force."
He said, "Let it be recalled that my father Maharaja Hari Singh signed the Instrument of Accession in October 1947 under unusual circumstances when a full-scale war was raging due to the Pakistani based tribal invasion. It is true that that Instrument was exactly the same as the document signed by all the other former provincial states. However, whereas the other states later signed merger agreements, the relationship of Jammu & Kashmir with the rest of the country was governed by a special set of circumstances, and hence given a special position. The Constitution of Jammu & Kashmir, which I signed into law in 1957, is still in force."
Accepting that J&K is an 'integral part' of India, Singh said that does not necessarily mean that it has to be treated exactly on par with other states. He said, "Hong Kong is an 'integral part' of China but has been given a special dispensation. There are in fact numerous examples around the world in which, due to special circumstances, certain areas or regions have been given a special dispensation. Though all talk of secession is totally unacceptable and uncalled for, the steam-roller approach is also not appropriate."
Asking all involved to me mindful of the sensitivity of the issue, Singh also said that 50 percent of the area of his father's 84,000 sq miles state is in fact not in Indian possession. "It has been under Pakistan control since the UN's brokered ceasefire on 1 January 1949, and Pakistan has leased a considerable portion of this land to China. An interesting point also is that in the three regions of the state that are with us, Kashmir, Jammu and Ladakh, the bulk of public opinion differs sharply on this issue," he said.
Asking all involved to me mindful of the sensitivity of the issue, Singh also said that 50 percent of the area of his father's 84,000 sq miles state is in fact not in Indian possession. "It has been under Pakistan control since the UN's brokered ceasefire on 1 January 1949, and Pakistan has leased a considerable portion of this land to China. An interesting point also is that in the three regions of the state that are with us, Kashmir, Jammu and Ladakh, the bulk of public opinion differs sharply on this issue," he said.
Appealing to all concerned to "tone down the rhetoric and not let the minister's statement plunge the new government almost immediately into a complex and difficult situation," Singh also urged the government and all involved to look at the whole question of Jammu & Kashmir in an integral fashion, including the international dimension, the constitutional position, the legal aspects as well as the political aspects.
"Such an integral review is overdue, but it has to be done in a cooperative rather than a confrontational manner," he said.
"Such an integral review is overdue, but it has to be done in a cooperative rather than a confrontational manner," he said.
No comments:
Post a Comment