Article 370 could become a model legislation for all states in the context of decentralized governance
Jammu and Kashmir (J&K) chief minister Omar Abdullah believes that aNarendra Modi-led government could “end up severing J&K from the rest of the country”. Coming from the chief minister of the only Muslim majority state, this needs to be taken very seriously.
Abdullah’s warning comes in response to Bharatiya Janata Party’s (BJP) poll promise to revoke Article 370 of the Constitution which grants special status to J&K.
The BJP’s election manifesto of 2014 “reiterates its stand on Article 370”, and promises to “discuss this with all stakeholders and remains committed to the abrogation of Article 370”.
Never mind the fact that it was Abdullah who joined the BJP-led government which in its 1998 election manifesto was much more strident on this issue. “The BJP will abrogate Article 370 of the Constitution”, was the short and terse poll promise. (BJP Manifesto, Chapter 3, Agenda for Institutional Rejuvenation).
Abdullah also sees the BJP’s promise to grant Union Territory (UT) status to the Buddhist-majority Ladakh as dismembering Jammu and Kashmir (which) will have awful consequences, both for communal peace in the state and for its wider relationship with India.
Again, he says this even as his existing coalition partner in the state has also promised UT status to Ladakh. It is one of the 29 items in the Congress Party’s manifesto for the overall development of the desert region. As such, Abdullah’s statements not only lack political credibility but also ideological conviction.
More importantly, these statements display a lack of political maturity. It is well accepted that Article 370 cannot be revoked. Prime minister Atal Bihari Vajpayee had sought opinion from almost every single Constitutional expert and legal luminary about the possibility and implication of abolishing Article 370. There was a complete consensus among all the experts that it can’t be done. The current governor of the state could enlighten the chief minister as well as the prime ministerial aspirant about this. For it was he who had put together various views for Vajpayee.
Be that as it may, from a Kashmiri perspective, as also the actual governance structure, Article 370 is now nothing more than a shell. The core and “contentious” issues have all been removed surreptitiously and unconstitutionally by the Congress party in its long years in office.
As I have pointed out in another newspaper column (What is there to abrogate, Greater Kashmir, 10 April), really nothing of the original article remains. In 1986, Article 249 of the Constitution was extended to J&K, empowering Parliament to legislate even on matters even in the state list. This ended the residuary powers of the state assembly. Rajiv Gandhi was the prime minister then.
As such, it may be useful for Narendra Modi and his team to see the truncated Article 370 for what it is and not what it was in 1951 and what it has come to symbolize over the years.
If looked at from that perspective, Modi may be surprised to see that what he aspired for Gujarat in terms of legislative powers is provided in Article 370.
In his Republic Day message, Modi said that a country such as ours cannot survive without a vibrant and functional federal structure. Sitting in New Delhi, the centre may not always be able to do justice to the potential and needs of various states. Article 370 is exactly about tilting the existing power balance.
In an obvious reference to the appointment of governors and the Lokpal which became a big controversy, Modi said, “chief ministers are not consulted on crucial appointments. Rather, appointments are being thrust down violating the spirit of the laws of the land”. Article 370 prevents exactly this from happening.
Modi has been lamenting the fact that “Sarkaria Commission which called for consultation between the states and the centre on the Concurrent List hasn’t seen the light of the day”. Again, Article 370 makes it obligatory on the centre to seek concurrence of the state on matters of the Concurrent List.
Modi has been on the forefront of criticizing the centre for not discussing the Communal Violence Bill or the National Counter Terrorism Centre with states. The benefit in the case of J&K is that even if the centre passes it, it will require the concurrence of the state legislative assembly to be applicable. So the last word rests with J&K.
The same holds true for the Goods and Services Tax (GST), which Modi has been stalling. It will not apply to J&K, unless the J&K legislative assembly chooses to ratify it.
For its detractors, Article 370 is a hindrance to beneficial legislation such as the Right to Education which is not automatically applicable to J&K. This is a fallacious argument as all these laws can be easily extended to the state. To put it differently, the emaciated Article 370 may well provide Modi with the framework for a new federal structure that he has been advocating as the chief minister of Gujarat.