Abrogate Article 370
By Prof. Hari Om

The so-called self-proclaimed ‘secularists’ and messiahs of the minorities have played with their sentiments by raising the bogey that J&K will lose its special status the moment the temporary provision of Article 370 in the Constitution of India was abrogated. They raise the bogey of the Muslim majority J&K losing its minority benefits, as if the crores of Muslims living in rest of the country are not safe or are being discriminated against. This is all politics and more so, electoral propaganda. In this article, Prof. Hari Om has highlighted that the facts are otherwise. This Article 370 is, in fact, working against the democratic rights of the people of J&K.

Congress leader and protagonist of greater autonomy for Jammu and Kashmir (J&K), Prof. Saif-ud-Din Soz, has denounced the BJP for its demand seeking abrogation of Article 370. In fact, he has urged all the political groups operating in the state to be beware of BJP and asked them to defeat all its moves designed to dilute the importance of Article 370. He has, in addition, asserted that is this Article under which J&K enjoys a very special status in the Indian Union and that it is time for making it a permanent feature of the Indian statute book.

His belief that Article 370 invests the people of J&K with special democratic rights is a myth. The fact is that it invests the President of India with absolute and unbridled executive powers and empowers him to suspend for any number of years even those normal democratic rights which are available to the rest of the Indians. Using it, he can deny the people of the State their right to have a popular rule for as long a period as he desires. Just compare the status of the people of J&K with those of any other State of the Union or simply consider the manner in which the Centre can apply Article 356 of the Indian Constitution to any States of the Union in general and J &K in particular, and you will find the difference.

Article 356 says that no State of the Union can be kept under President’s rule for a period not exceeding one year. The words “one year” were substituted for the original words “six months” by the Constitution [forty-second Amendment] Act, 1976, Sec. 50, w.e.f. January 3, 1977. This Article also lays down that the Indian Constitution has to be amended in case the Centre feels the need to extend President’s rule beyond the period stipulated by the otherwise, most abused and misused Article 356. In other words, this Article requires the participation of the people’s representatives from all over the country in the Lok Sabha and the State’s representatives in the Rajya Sabha in the exercise that aims at extending the President’s spell beyond the stipulated period of one year. Again, it is the Parliament which legislates on behalf the State which is under President rule. This also means the participation of the entire nation in the law-making process, with the Governor of the concerned State having no right whatsoever to act on his own or in his discretion.

Take, for instance, the case of Punjab. The last time the militant-infested Punjab was brought under the President rule was on May 11 , 1987. The Central rule continued for almost five years. It was replaced in 1992 with the popularly-elected Congress Government under Beant Singh. In between, the Union Government had to amend the Indian Constitution for no less than four times. It was amended on March 30, 1988; April 16, 1990; October 4, 1990; and March 12, 1991. Not only this, the Centre had also to invoke the provisions of Article 352 of the Constitution in order to declare emergency in Punjab and amend Articles 358 and 359 with a view to keeping that troubled-State under President’s rule beyond the period prescribed by Article 356. (Articles 358 and 359 provide for the automatic suspension of Article 19 of the Indian Constitution which deals with the rights regarding freedom of speech.) It only indicates that the Centre has to take the entire nation into confidence if it contemplates an extraordinary action in any of the States of the Union excluding J &K.

As for the hapless J&K, the last time it remained under the Governor rule was from January 19 to July 18, 1990, and under President’s rule from July 19, 1990 to October 9, 1996, when Dr Farooq Abdullah-led National Conference Government was installed. Taken together, J&K remained under Governor/President’s rule for six years, eight months and twenty days. But the Central Government did not feel the need at any point of time during these years of unpopular rule in the State to take the Parliament into confidence or amend any of the provisions of the Indian Constitution. Nor did any political formation ever question the Union Government’s undemocratic actions in J&K. The reason: Article 370 under which the President at the behest of the Union Cabinet can issue any number of executive orders and snatch from the people of J&K even their basis democratic rights. Still we have the audacity to say that the people of J&K enjoy a unique position in the constitutional organization of India. What an irony!

But the obnoxious story of gross discrimination against the people of J&K in terms of democratic rights does not end here. It becomes even more pathetic when viewed in the context of Section 92 of the J&K Constitution of 1957. J&K State got the right under Article 370 to have its own constitution and a flag other than the national tri-colour. It needs to be underlined that J&K is the solitary State in the Indian Union which can be brought under Governor’s rule for a period not exceeding six months by the State Governor himself under Section 92 of the State Constitution. When it so happens or when the State Governor dissolves the assembly or decides to keep it under suspended animation, he assumes the role of the legislature and chief executive. And, whatever he does in that capacity has the force of law. In effect, the Governor during his rule exercises all those powers which the Provincial Governor in British India used to exercise under Section 93 of the Government of India Act, 1935. In other words, the J&K Constitution, like the 1935 Act, empowers the Governor to act in his discretion or exercise his individual judgment and the validity of anything done by him cannot really be questioned. The only authority he is required to take into confidence is the Union President who would never disappoint him. This is what a peep into the history of the Governor’s rule in the State suggests. In short, the democratic rights of the people of J&K can be violated and their sentiments injured both by the Indian Constitution and the State Constitution, which is the by-product of Article 370. And, it has happened in the state on a couple of occasions in the past. Should it not be construed as an attack on the democratic rights of the people of the State, as also an affront to their self-respect?

But these constitute just two of the several such examples which only serve to demonstrate that Article 370 is highly undemocratic and discriminatory. The need of the hour is to remove from our statute book this Article and bring the people of J&K at par with the rest of India. The sooner we abrogate it the better. The abrogation of Article 370 would send a clear signal that the people of the State are not a race apart and that the Government of India considers J&K an integral part of the country in the same manner as other States of the Union. It is hoped that Prof Saif-ud-Din Soz would also come forward and work for a political system that empowers the people of J&K to exercise all the rights which are available to the rest of countrymen under the Indian Constitution.

(The writer is a former Member of Indian Council of Historical Research)