A Draconian Repeal


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, of emergency, imposed by Mrs Gandhi in 1975.

Jammu & Kashmir has a vexatious history. Unlike most of princely the states whose fate could be decided before independence, Maharaja Hari Singh did not take a decision on accession. The Pakistan sponsored invasion in 1947 altered his plans to be autonomous and the Indian troops bailed him out of a crisis. He had to accede to the Indian Union.

Mr Sheikh Abdullah who was the prime opponent of the Maharaja at that time and acolyte of Mr Nehru wanted that the special status of Jammu & Kashmir under Article 370 be made permanent. He wanted “iron-clad autonomy” for J&K. However, this was denied and Article 370(3) contained a provision as per which ‘it will be temporary and could be made inoperative by the President after getting the recommendation of the Constituent Assembly of J&K’.

One of the major agenda of the BJP has been to scrap Article 370 and make the state of Jammu & Kashmir at par with other states. Its 2014 manifesto said that they will consult all stakeholders. However, the 2019 manifesto has deleted this process of consultation. It has put the main political party leaders of J&K, like Omar and Mehbooba behind bars.

The movement for scrapping the articles was the brainchild of Dr Syama Prasad Mukherjee, who resigned from the Cabinet on this ground. He tried to enter into Jammu & Kashmir, protesting against the provision to carry separate ID cards, and prohibiting Indians to acquire property in Jammu & Kashmir. He died under very controversial circumstances in June 23rd 1953 and provided the intellectual ballast for RSS to scrap Article 370 & 35A. The massive mandate of Mr Modi has helped him to convert the dream of Dr Mukherjee and the RSS; for a non-balkanised J&K.

About 47 notifications have been issued by the President of India so far in consultation with the state assembly for applying several central laws to the State of Jammu & Kashmir. A very important judgement has been given by the Supreme Court in SBI vs. Santosh Gupta (2017) Case, where the issue was whether the SARFAESI Act of 2007 would be applicable to the State of Jammu & Kashmir or not.

The High Court of Jammu & Kashmir surprisingly did not agree to its application. This was overruled by Justices Joseph and Nariman in a landmark judgement where they ruled that the “State of Jammu & Kashmir has no vestige of sovereignty outside India”. Accordingly, the provision of the SARFAESI Act has been made applicable to Jammu & Kashmir.

The Home Minister tried to clarify on the floor of the Parliament that since Jammu & Kashmir is presently under President Rule, the notification of the President for abrogating Article 370 and Article 35A has been taken after taking the consent of the present Governor. This is clearly indefensible as Article 370(3) clearly mentions that the recommendation of the Constituent Assembly is necessary. In its absence, a duly elected J&K state assembly has to assent. The move is clearly aimed at the short-circuiting due procedure to achieve political mileage.

A process of consultation with all the stakeholders and oppositions parties should have first taken place. This is quite clearly an undemocratic move and smacks of a fascist tendency.

It may be recalled that 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 for amending the constitution. He cautioned against a fascist tendency that was looming large. The judges were of the view that Mr Palkhivala was being alarmist. He was actually quite prescient. Three judges were superseded (1973) by the government, as they did not agree with the political philosophy of the party in power. The emergency was imposed (1979).

Karl Marx had said, “History repeats itself, first as a tragedy and then as a farce”. The draconian manner in which the spirit of the Constitution has been vitiated in Jammu & Kashmir seems to echo that ‘farce of democracy’. A.S. Dulat in his erudite book “Kashmir- The Vajpayee Years”, brings out how the problem of J&K was sought to resolve by Mr A.B. Vajpayee through a process of consultation, give and take. The BJP has completely abdicated his legacy and conciliatory process.

The present initiative by the government is likely to be challenged in the Supreme Court as its legality is suspect. It is really surprising when the issue of the status of Article 370 and Article 35A are sub-judice in the Supreme Court, BJP has resorted this unusual route to bypass the court. There are already serious rumbling that the spirit of secularism is being seriously annihilated and the result of the election clearly showed a tendency towards polarisation of Indians on religious lines.

Mr Salman Khurshid in his recent book also laments that Muslims have become ‘invisible’ citizens. Making J&K a Union Territory and controlling the law and order by the centre has added insult to the injury. The shadow of terrorism would further lengthen in Kashmir. More importantly, it will further widen the communal divide, which will be difficult to douse through suppressive measures.


About the author

The author teaches Economics. E.mail-misra.sn54@gmail.com, Ph-91-7381109899


Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Pragativadi and Pragativadi.com does not assume any responsibility or liability for the same.

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