K B Jandial
With J&K elections finally coming to an end on 1st October, 2024, it also brings down the curtain on all lies, half-truths and wild promises for the time being, but some of these are likely to stick to the minds of the people, especially the youth. The serious issue that is likely to dominate Kashmir politics is the restoration of Articles 370 & 35A, for many years risking peace and tranquility of the region. These Articles had been used and misused for political gains, long term consequences notwithstanding. Isn’t it the time to come clean on it at least now?
During the current election campaign PM Modi and BJP leaders repeatedly claimed that Article 370 (Special Status along with Article 35A) is now history but the Kashmiri leadership of all hues have a contrarian view. Kashmir’s premier political party, National Conference has made restoration of these Articles that had given J&K special constitutional autonomy, as a major commitment in its manifesto, quickly endorsed by the PDP. The Congress which inked alliance with NC had no problem with this electoral agenda, but, however, maintaining its stoic silence on its restoration, fearing loss of votes beyond Muslims.

Straight Talk

Well, in a democratic country, it is a political right of every party to seek anything within the constitutional limits and campaigning for it. In this context it is no crime to ask for restoration of J&K special status and should not be called anti-national. But does it augur well for the welfare and future of the people of Kashmir and the peace and development of J&K? If it is analysed dispassionately, it would be found that the emotional exploitation of Article 370 and politics on it ruined three successive generations of Kashmir and the present fourth one too faces existential danger. The truth is that every party has exploited this controversial constitutional provision for votes which Sheikh Abdullah managed to get despite opposition from the father of Indian Constitution, Dr. B. R. Ambedkar.
To save the present generation from unnecessarily ruining their future, it needs to be sensitized about the correct implications of these scrapped provisions and consequences of 5th August, 2019 parliament’s move which has got even the judicial seal. Lies have to be exposed, sooner the better, in the larger interest of the people of J&K so that the present and coming generations don’t ruin their lives.
Without going into the politics of Article 370, the fact remains that Articles 370 & 35A have nothing to do with peace and development in Kashmir. If these provisions had potential to restore peace, then why terrorism propped up in the late eighties in J&K when these temporary provisions were in the Constitution. Why has ‘Kashmiri alienation’ been an issue since the first tenure of Sheikh Abdullah? The fact is that Article 370 has no linkage, whatsoever, with peace & tranquility and in the same measure, these have no effect on controlling the militancy situation in Kashmir.
The massive change on the ground currently experienced in Kashmir is not because of abrogation of Article 370 but because of the deft and strong handling of militancy situation by the MHA, army and local police and strong signals sent to the mentors of these militants across the border that reprisal would follow right into their territory with much greater force in the event of their misadventure. The improvement in the situation is also because of the plugging the conduit of hawala money going into subversive activities including funding stone pelters and a section of anti-India media.
Continuing with Articles 370 & 35A, the people must understand the scope of this “temporary and Transitional” provision for J&K, incorporated at the behest of Sheikh Abdullah, a mass leader and a close friend of the PM Pt Nehru. Why was a permanent constitutional provision for J & K not agreed to by Pt Nehru? The fact is that after the point-blank refusal of the Head of the Constitution Drafting Committee, Dr. Bhimrao Ramji Ambedkar to draft it as he considered it against the spirit of the Constitution, the choice fell on Sir N. Gopalaswami Ayyangar who presented the draft Article 306A (later became Article 370) under the chapter XX1 with heading “Temporary and Transitional Provisions” (Special Provisions” added on 1st dec 1963) at the last stage of the proceedings of the Constituent Assembly on October 17, 1949.
Contrary to claims of Modi Govt. and BJP leaders, militancy is still haunting J&K, may be in a much lesser measure. The NC and PDPhave sworn to bring Article 370 back for peace and dignity of Kashmiris, the fact is that Kashmir had always been on the boil despite Article 370. Many commentators attributed Kashmir’s permanent turbulence to the sacking and arrest of Sheikh Abdullah in 1953. But the Sheikh returned to power in 1975 on the crutches of the Congress which again toppled him two years later that made him much stronger. But there is a popular perception that the Sheikh preferred to die as an Indian burying his bitterness with Indian leadership.
What was special about the original Article 370 and the benefits accrued to the people of J&K? This needs to be understood. Let’s be clear that neither Article nor any other article allows any State or UT to secede from the Union of India, and J&K was, is and shall remain “an integral part”.
Basically, Article 370 was nothing but a provision to restrict the legislative powers of the Parliament over J&K. Clause 1(b) (i) of Article 370 restricted the legislative power of the Parliament over J&K to make laws only to the subjects in the Union and Concurrent lists that corresponded to the matters specified in the Instrument of Accession. But the very next sub clause (ii) of Clause 1(b), however, extended the Parliament’s power to make laws for J&K on more subjects in both lists but “with the concurrence of the Government of the State”. It should be noted that concurrence was only of the Govt of J&K and not the State Legislature. Over the years, the State Govts had given concurrence on more subjects and ultimately 94 out of 97 subjects in the Union list came under the purview of the Parliament.
Similarly, under Clause 1(c), only two Articles- 1 and 370 were extended to J&K. But again, the next clause 1 (d) read with the second proviso, provided that other provisions of the Constitution shall also apply to the State, subject to such “exceptions and modifications” as the President may determine with the “concurrence with the Government of the State”. It is very clear that other Articles of the Constitution shall also be extended to J&K. In this way nearly 90% constitutional provisions had been made applicable to J&K, of course with “exceptions and modifications”. Let somebody point out any provision of the Indian Constitution that is against the interest of people of J&K.
The Indian Constitution is one of the finest constitutions of the world which has met the aspirations of the people and stood the test of time. The success of the Indian Constitution, for a country as diverse and complex as India, continues to impress and inspire experts around the world but not the political leadership of Kashmir.
The purpose of Article 370 is needed to be critically analyzed. What type of autonomy it provided and for whom? Does it give anything good to its people? Even the intention of the authors of Article 370 was to apply the whole of the Indian constitution to J&K but gradually with the concurrence of the State Govt. Why delay the extension of these provisions of the Constitution? How a resident of J&K is benefitted by this process? This appears to satisfy the ego of the modern rulers of J&K only. Depriving the people of the benefit of progressive laws cannot be the spirit of the autonomy provided by Article 370. But on the contrary, it was used to strengthen the mindset of a sizable section of Kashmiri population that “J&K is a separate nation” and thus bred separatism. Would these sentiments help the youth to progress within J&K and outside?
Isn’t it ridiculous that a law made by the Parliament was good for 140 cr Indians including 22cr Muslims but bad for over 125 lakhs people of J&K? How could extension of fundamental rights, jurisdiction of Supreme Court of India, Election Commission of India or CAG like many more provisions be bad for the people of J&K? Look, how the urban and rural local self-Governance institutions in J&K have been empowered and flooded with funds after extension of long delayed 73rd and 74th Constitutional Amendments into J&K?
Yes, there are issues of jobs to locals and restrictions on transfer of land to outsiders which Article 35A had protected. These issues can be discussed and favorable mechanism created.
But it is high time that politics on abrogated Article 370 must end, treating it as a closed chapter rather than keeping the wounds open for decades. Nobody would gain anything except politically, by whipping up passion and anti-India sentiments on restoration of Article 370. The new democratic dispensation that will take over the reins of administration after Assembly election results, efforts should be made to draw maximum benefits of the Indian Constitution and progressive Central laws extended to J&K and help create a congenial harmonious atmosphere, ending anti-Delhi politics. Constructive dialogue with Delhi will be a better option for the new J&K Govt.
(feedback:kbjandial@gmail.com)

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