The Chief Minister of Jammu & Kashmir is raking up Article 370 as a political tool to win back ground that his National Conference has lost to the People's Democratic Party, which too favours continuance of the provision
Jammu & Kashmir Chief Minister Omar Abdullah, whose pro-semi-independence and essentially sectarian National Conference suffered an ignominious defeat in the just-held lok Sabha election, has, it seems, lost his way. He has speaks like a naïve street boy, thus giving an opportunity to his critics to question his understanding of the constitutional nuances.
He is dismissed by them as politically bankrupt and intellectually sterile, incapable of leading the sensitive border State and his party. The general view is that Mr Abdullah is, like Congress vice president Rahul Gandhi and Uttar Pradesh Chief Minister Akhilesh Yadav, sitting on the ruins of the his party which will soon become a story of the past.
More significantly, senior Congress leaders, including leading lawyers such as Manish Tiwari and Abhishek Manu Singhvi, have also included themselves in the list of leaders of the caliber of Mr Abdullah by speaking the language of the defeated NC leader.
The case in point is Mr Abdullah’s ridiculous May 28 statement that Article 370 cannot be amended or repealed by Parliament because Jammu & Kashmir doesn’t have a Constituent Assembly. Article 370 is part of the Constitution of India and Parliament is empowered to deal with it in the manner it deems fit.
One may understand the reasons behind Mr Abdullah’s flawed Constituent Assembly formulation considering the ideological background of his party and its belief in a local oligarchy-type order wherein the elite exercise absolute powers while the masses are considered third grade subjects.
However, a Constituent Assembly, as everyone knows, is not a permanent institution. It is constituted to frame the Constitution. Once the Constitution is adopted and enforced, the Constituent Assembly ceases to exist. The power to amend the Constitution is transferred to the legislature. This is the practice followed universally. India is no exception.
In Jammu & Kashmir, the Constituent Assembly, which was constituted in 1951 after electoral rigging, adopted the Constitution in 1956. It was enforced on January 26, 1957. With its application, the Constituent Assembly expired.
The Constitution of Jammu & Kashmir, like the Constitution of India, contains a provision that can be invoked by the Government anytime to amend or repeal any of its sections. The only condition is that the ruling party must have the required numbers in the legislature.
Section 167 of the Constitution of Jammu & Kashmir, like Article 368 of the Constitution of India, empowers the State Government to amend or repeal any of its sections. It also says that the State Government shall not amend Section 3 of the Constitution which, like Article 1 of the Constitution of India, says that Jammu & Kashmir is and shall ever remain an integral part of India. There is no reference to Article 370 either in Section 3 or Article 1.
The State Government has amended or repealed more than 30 sections by invoking Section 167. Not once has it mentioned the need for a Constituent Assembly and rightly so. By arguing that, if Article 370 is to be amended or repealed, then the constitution of a Constituent Assembly is imperative, Mr Abdullah has become an object of ridicule.
Also, the Chief Minister has said that the abrogation of Article 370 will automatically mean secession of Jammu & Kashmir from India. This is a claim that has no basis whatsoever. Jammu & Kashmir acceded to India on October 26, 1946, in terms of the constitutional law on the subject. The decision to this effect was taken by Maharaja Hari Singh, who, like the rulers of other 560-odd princely States, alone had the authority, under the Indian Independence Act of 1947, to decide the political future of his kingdom after the lapse of paramountcy.
The Instrument of Accession signed by Maharaja Hari Singh was similar to the ones singed by other princes and nawabs. Hence, to question the accession of Jammu & Kashmir to India is to question the very formation of Pakistan, whose cause Mr Abdullah invariable advocates to cultivate his communal constituency in the Valley.
The truth is that, desperate and defeated, Mr Abdullah has no case to make. He is only seeking to communalise the situation in Kashmir to restore the political space the NC has lost to the People’s Democratic Party whose chief, Ms Mehbooba Mufti, has also opposed the suggestion of a comprehensive debate on Article 370.
The NC is not going to gain by taking recourse to negative politics and advocating a regressive and primitive ideology. People want political parties to focus on issues relating to development and governance. This is what the historic mandate of the lok Sabha election emphatically said.
It’s a positive development that the media has taken up this issue in a big way and is holding debates on the anti-people, anti-democratic and essentially divisive and separatist Article 370. There is no doubt that whatever the ongoing debate, it will go a long way in educating public opinion and creating an environment conducive for the abrogation of Article 370 in a democratic manner.
(The writer is former Dean, faculty of Social Sciences, University of Jammu)