“Is Desh Mein Do Vidhan, Do Pradhan aur Do Nishan, nahin chalenge”, said Syama Prasad Mukherjee. 66 years after his death in 1953, Syama Prasad must be finally smiling from wherever he is, as his long cherished dream of “One Nation, One Union, One Constitution, One Prime Minister and One Flag”, finally came true, in its truest sense, on 5th August 2019 with the scrapping of Article 370.
5th August 2019 will go down in the annals of posterity as an epoch making day, with Prime Minister Narendra Modi and Home Minister Amit Shah, creating history and re-organising the map of India, by revoking Article 370 and Article 35-A. Scrapping Article 370 and as a corollary, Article 35-A, make the integration of J&K, with the Union of India,final and complete, reinforcing in no uncertain terms, the supremacy of the Indian Parliament and Indian Constitution. With GST, the Modi government sealed “One Nation, One Tax” and by repealing instant “Triple Talaq”, it paved the way for “One Nation, One Law” & eventually, “One Civil Code”. By abrogating Article 370, the Modi government has taken the very essence of “Sabka Saath, Sabka Vikas, Sabka Vishwas”, to a whole new dimension altogether, with the “Indian Tricolour” being the only flag that will henceforth fly proudly and uninhibitedly, in J&K.
Residents of J&K will have the same citizenship rights, property laws and fundamental rights, like just about anybody else in say, Chennai, Mangaluru, Mumbai, Hyderabad, Bhubaneswar, Delhi or Kolkata.
Earlier, due to the polarisingly divisive Article 370 and Article 35-A, only those defined as “permanent residents”, could buy property in J&K, but now, any Indian from any part of the country, from Punjab to Porbandar or Kullu to Kanyakumari, will be able to buy property in J&K and set up industry. Restrictions on jobs, investments and scholarships which were earlier cornered by “permanent residents”, will now be available to one and all,without treating anyone in J&K as “special” or anyone outside J&K, as an “outsider”. Abrogating Article 370,which was discriminatory, is truly historic and a bold step towards the idea of “One India”, which among other things, is also a reflection of the tremendous political savvy of Narendra Modi and the sheer guts and gumption of Amit Shah.
Those opposing annulment of the archaic Article 370 which granted “special status” to J&K, are just a handful, whose voice hardly matters and whose hearts have never really bled for India. For instance, Omar Abdullah, ex CM of J&K, who has been screaming hoarse that repealing Article 370 and 35-A is “illegal and a betrayal of trust”, was born to a British mother. What an irony that his British mother has had more rights in Kashmir, simply by virtue of marrying Dr Farook Abdullah, but a native Kashmiri woman who married, say a Bihari from Patna, would cease to have any rights to any property in Kashmir,under the earlier rule, but not any more. Hence, scrapping Article 370, is also about gender equality and gender justice, which are enshrined in the Indian Constitution.
There is an argument being made by a certain anti-national, pro-jihadi and pro-pakistani lobby that President Ramnath Kovind is not legally authorised to notify revocation of Article 370, under clause (3) of the Article. Such lame allegations are false. Equally malicious is the contention that this annulment of Article 370 should have been first approved by a “Business Advisory Committee”. Earlier, in May 1975, while granting Statehood to Sikkim, the Parliament took a decision, without referring the matter in detail, to any committees, whatsoever, given the abundant constitutional powers the Parliament has, in matters of this nature.
Since the J&K Constituent Assembly was dissolved in 1957, the revocation of Article 370 now, simply needs to be passed by a simple majority in the Parliament. “The fact of the matter is, Article 35-A is not part of the Constitution of India. So there is no requirement of the Parliament amending it,” said Mr. Jehangir Iqbal Ganai, Advocate General of J&K, to a leading national daily, in an interview in November 2017. By Mr. Ganai’s own logic, Article 35-A was unconstitutional and unlawful, to start with. That Mr. Ganai was actually trying to belittle the Indian Parliament but inadvertently, ended up admitting to the illegal nature of Article 35-A,which slipped in via the back door in 1954,is a different story.
What exactly is Article 35-A? Well, it empowers the Jammu & Kashmir state legislature to define “permanent residents” and then give them special treatment, privileges and rights. This special treatment is with respect to employment with the state government, acquisition of immovable property in the state, settlement in the state, right to scholarships, and such other forms of aid as the state government may provide.
However, the very fact that Article 35-A came into being vide a Presidential Order in 1954 and was not added to the Indian Constitution through a routine Parliamentary amendment vide Article 368; that Article 35-A was only added via an annexure by alienating and superseding the Parliamentary process; that Article 35A owed its origin to Article 370(1)(d), which in turn was always meant to be “temporary and transitional” in any case; that Article 35-A was against the basic ethos espoused under Article 14 of the Constitution which upholds equality before law and equal protection of laws within the territory of India; that Article 35-A violated the basic structure of the Constitution by flouting Article 14 which prohibited the State from discriminating against persons on grounds of religion, caste, creed or place of birth; that Article 35-A disenfranchised children born to Kashmiri women who did not marry “natives”, were all glaring examples of the fact that Article 35-A had outlived its utility long back and existed as one of the worst reminders of the politics of appeasement and opportunism that was nurtured by India’s erstwhile prime minister, Jawaharlal Nehru.
Going back in time, it is true that after the Delhi agreement of 1952, under Clause 6, the Central government, under the aegis of Nehru, in a classic reflection of Panditji’s poor administrative skills and even poorer vision, appreciated the need for special rights that existed vide notifications issued in 1927 and 1932, under the Dogra ruler, Maharaja Hari Singh of J&K.
It is also true that like any of the 565 princely states, after J&K’s unconditional accession to the Indian Dominion on 26th October 1947, Sheikh Abdullah took over reins from the Dogra ruler and in 1949, he negotiated J&K’s political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution. Article 370 under Part XXI, guarantees special status to J&K, restricting the Union’s legislative powers to only three areas; Defence, Foreign Affairs, and Communications. After J&K’s Constitution was framed in 1956, it retained the erstwhile Maharaja’s definition of “Permanent Residents”.
Fears that removal of Article 35-A would lead to erosion of J&K’s autonomy and trigger demographic changes in the Muslim majority Kashmir valley, are a bag of lies, fanned by separatists, armchair activists and those who neither believe in “Insaaniyat, Kashmiriyat, or Jamhooriyat”. If fears of demographic invasion were indeed true, why is it that in the last 70 odd years, the core demography of Kashmir Valley has remained largely unchanged?
The uncomfortable truth, if anything, is the fact that Article 35-A was used as a political tool by politically irrelevant groups like the Hurriyat to keep the embers of separatism burning, though things have improved dramatically under the Narendra Modi dispensation. With Modi at the helm,past Nehruvian blunders, have no place in the “New India”, that is being built.
Coming back to legalities, does the President of India have the sole power to amend the Constitution through an “Order”? The answer is a clear “No”, and has been settled in the Puranlal Lakhanpal Vs President of India case of 1961. True, the President of India, who is the head of the Executive, has legislative power under Article 123 of the Constitution to make an Ordinance when either House of the Parliament is not in session, but the Ordinance, within 6 months, has to be mandatorily passed by the Parliament, in order to become a law. The fact that the Presidential order, in July 1954, that gave birth to Article 35-A was passed unilaterally, by circumventing Parliamentary procedures, by the then President Rajendra Prasad, on the mala fide advice of a clueless Nehru, has therefore always been ultra vires, to start with!
Again, does Article 370 have the power to add, amend, insert or delete a new Article in the Constitution or amend the Constitution? The answer is, again, a categorical “No”. Sub-clause 2 of Article 368 states that, an Amendment to the Constitution may be initiated only by the introduction of a Bill for this purpose in either House of the Parliament, post which it has to be approved by no less than 2/3rd majority of all members present and voting, of both the Houses put together, post which it has to finally get Presidential assent, before the Amendment eventually becomes legally valid.
Whichever way one looks at the Article 35-A issue, that it was illegal and extra-constitutional from its very inception, is now well established. We have lived with this 65 year old mistake foisted upon us by a short-sighted Pandit Nehru, despite the fact that the J&K Constituent Assembly was disbanded on 26th Jauary 1957, but it was high time now to ensure that the mistake of 1954 was rectified, so that the true spirit of Article 19 and Article 21 of the Indian Constitution, which embody the “Right to Freedom of Speech & Expression”, and “Right to Life & Liberty”,were upheld in the truest sense, without creating a stream of second class citizens within the state of Jammu & Kashmir, under the farcical garb of greater autonomy. And yes,the cardinal mistake of 1949,has indeed been corrected on 5th August 2019, by the invincible Modi-Shah duo.
Kashmir is, because India is, and not the other way round. Also, this entire argument that Kashmir has been neglected, is wishful thinking. With barely 1 per cent of the population, J&K gets almost 10 per cent of the central government funds. This 10 per cent is again 25 per cent higher than what other special category North-Eastern states are allocated. In contrast, Uttar Pradesh makes up well over 13 per cent of the country’s population, but has historically received only about 8.2 per cent of central government funds. As per the 2011 Census, with a population of 12.55 million, J&K received Rs. 91,300 per person between 2000-2016, while Uttar Pradesh only received Rs. 4300 per person, during the said period.
If anything, the horrific Pulwama terror attack by Pakistan on 14th February 2019, is one more reason why Article 35-A needed to be abrogated unconditionally. Terrorism, promoted and abetted by Pakistan in the Kashmir valley, is no longer about separatism or secessionism, but about the Islamic theology of “Ummah”, which is synonymous with Ummat-al-Islam. In simpler terms, it basically means, the problem of terrorism in Kashmir is part of a larger game-plan by radical Islamists to establish an Islamic Caliphate in J&K, under the guise of “Jihad”. “Ummah” is the desire by radicalised terror elements to establish a supranational community of Islamists in the Kashmir valley, under the garb of uniting people with a common ancestry, history or geography.
If ever there was any party in India that had the political will to discard Article 35-A into the confines of history, where it truly belongs, it was the BJP,and Narendra Modi is the only leader who has the political mandate and the undeniable might to eliminate Deobandi fascism, which is the root cause of Islamist terror. Be it isolating Pakistan in the international fora, the decision to revoke Pakistan’s Most Favoured Nation (MFN) status, getting Saudi Arabia to release 850 Indian prisoners, the decision to divert excess Indus water to Punjab and J&K under the Indus Water Treaty (IWT), refusing to be a part of China’s Belt Road Initiative (BRI), getting the Organisation of Islamic Cooperation (OIC) to invite India as a guest of honour at it’s meeting in March 2019, getting India to become the 42nd member of the “Waasenaar Arrangement” in December 2017, or becoming the 35th member of the Missile Technology Control Regime (MTCR), Narendra Modi has ensured that the poor legacy and Himalayan blunders of Jawaharlal Nehru have been corrected, meaningfully.
India has already paid a hefty and heavy price for the follies of Nehru. Article 35-A will forever stood out as a sore thumb and a blunder Nehru made, out of not hubris or ignorance, but due to his overarching desire for appeasement of Muslim vote banks. Doing away with Article 35-A will redeem that costly mistake and curb the radical Islamisation of the Kashmir valley, born out of deep-seated Hinduphobia by colonised minds who have become terror-apologists.So while ex-CM, Mehbooba Mufti can scream from the roof tops till the cows come home about how scrapping Article 370 will make Muslims in J&K,second class citizens, the truth is, with abolition of this Article, almost 4 lakh Kashmiri Pandits who were forced out of their homes in 1990,in a horrific case of genocide, are finally having the last laugh, after 29 long years. Post abolition of Article 370,Dalits,Tribals and SC/ST members, will have equal rights in matters of employment and scholarships, in J&K. No longer will a member of the “Valmiki Samaj”, have to apply for only the job of a “sweeper”.
Abrogating Article 35-A is therefore, not merely about gender justice but social justice too. It is not only about integrating Kashmir completely with the Indian Union, in order to mainstream Kashmiris, but it is also about curbing terrorism emanating from within the Kashmir valley, spurred by radically fascist Wahhabi and Salafist forces who believe in waging a Jihad, as part of their larger ideology, under the guise of “Kashmiriyat”. More importantly, abolition of Article 370,is also about giving an impetus to the sagging economy of J&K which disallowed investments and industrial houses to come up there.
J&K will now be a Union Territory (UT),with a legislature and will not be a State any longer, while Ladakh will be a UT, sans any legislature. Writ of the Supreme Court will now prevail over J&K, with Kashmir’s separate Constitution and Penal Code, completely dismantled. All central laws including matters pertaining to law & order and land will apply now to J&K, with no exceptions whatsoever. Bifurcation of J&K, comes at a time when India’s stand on national identity and national security are non-negotiable. Amit Shah, the modern day Sardar Patel, whose political genius has never been in doubt, has shown once again, why courage of conviction, is what it takes to ensure, justice, social, economic and political, is delivered to those who need it most, at a time when it matters most!
Ms Sanju Verma is an Economist & Chief Spokesperson for BJP Mumbai.