The largest and most comprehensive written Constitution in the World, the Bharateeya Constitu- tion, that consisted of 395 Articles, 22 Parts and 8 Schedules at the time of enforcement on 26th January, weighs heavier thanks to the hundred odd amendments that have been incorporated over the years. At present, standing tall quantitatively and qualitatively, with 448 Articles, 22 Parts and 12 Schedules, the Bharateeya Constitution might seem like a Bible that carries the panacea for all problems and the answer to all queries. To a large extent it is but for a few controversial and contested articles.
One such Article that has been mired in controversy from its inception, rather conception itself, has been Article 370. Titled “Temporary and Transitional Provisions” that forms Part XXI of the Constitution of Bharat, it was amended in 1962 following upheaval in North-east Bharat, whereby a word “Special” was added and the title thereafter read “Temporary, Transitional and Special Provisions”. Comprising of 24 Articles, from Article 369 to 392, this segment became the most invoked and debated due to Article 370, that was interpreted by vested interests in such a manner that one was made to believe that the said Article provided some kind of a ‘special’ status to the State of Jammu & Kashmir that was so sacrosanct that anyone who sought even a logical discussion on it would be indulging in blasphemy. This manmade clout of ‘non-touchability’ of the Article reigned supreme for decades until a few years ago, when the many victims of this Article namely the Scheduled Castes (SC), Scheduled Tribes (ST), Women, numerous categories of Refugees, Terror victims, raised voice against the injustice and alienation they suffered in their very land and at the hands of their very own leaders. Article 370 opened like the Pandora’s Box, with all its aspects being deliberated and debated threadbare. It hogged the limelight, media attention and news space. The most recent being, the judgment delivered on October 9 by the Jammu & Kashmir High Court in the case of Ashok Kumar & Ors. While the case was about the “validity of reservation in promotion” in the State of Jammu & Kashmir, the undue media attention gave it the aura of an existential fight pertaining to the “permanence” of Article 370. In simple layman’s terms, the judgement stated that the existing rules/clauses followed in matters of promotion of SC and ST, cannot be implemented in the State of Jammu & Kashmir till Article 370 is in place, in its present form. A straight and simple interpretation of the existing law and the situation that it permeated, took the shape of an insidious battle for the permanence of Article 370 versus the supremacy of the Parliament to make/amend laws.
Anomaly created by Art 370
It is necessary to place the facts about the exact position of Article 370 before the people to expose the propaganda unleashed by certain individuals and organisations with regard to Article 370, said Sri Jawahar Lal Kaul, Chairman of Jammu & Kashmir Study Centre through a press statement. He was reacting in the context of the recent judgment delivered on 9.10.2015 by Jammu & Kashmir High Court in the case of Ashok Kumar & Ors. In which the court said that the status of the article is permanent.
Unfortunately what everyone overlooked was the fate of 25 lakhs SC/STs, who have been fighting a relentless battle to give to their children the benefits that their fellow brothers and sisters have been enjoying in the rest of Bharat for a long time now. As a leading think tank that deals exclusively on Jammu & Kashmir issues rightly states, it is merely a case of “whether the amendment in an Article involving fundamental right of equality (Article 16) for giving effect to reservation in promotions requires a Presidential Order or whether it would automatically be applicable to all states including Jammu & Kashmir?”. Nothing more and nothing less.
Nobody is trying to undermine the sovereignty of the Parliament, least of all the learned Courts, which have all along been the custodians, interpreters and upholders of the Constitution, the Supreme Law of this Land. For a true nationalist, Article 368 of the Constitution that gives power to the Parliament to amend the Constitution and lays down the procedure for making such amendment, is as important as Article 370 that was designed and included in the “temporary and transitional provisions” to cater to the emergency and adversarial conditions prevalent in the State of Jammu & Kashmir at the time. Now under the changed circumstance, it is time to re-look and re-work this Article in the larger human and national cause. This fight can and should be best lead by the leaders of Jammu & Kashmir, who can prove to their ‘untouchable’ brethren that in order to eradicate their ‘untouchability’ from the face of this land, we will leave no Law, no Article untouched, including 370.
K Aayushi (The writer is a Researcher on J&K)