JAMMU: The ghost of Article 370 refuses to vanish, not at least from the playbooks of the National Conference (NC), which evokes it time and again. Not to be outdone, the opposition BJP also plays along, taunting the NC regarding the fact that it was done and dusted as early as August 2019. In the Union Territory (UT) of Jammu & Kashmir, the status of this article keeps coming up.
A couple of days ago, Chief Minister Omar Abdullah said the BJP has failed to weed out Article 370 from the Constitution. It is still there in the text of the Constitution and may someday be resurrected, though it is not clear when that may happen. He also challenged the BJP to remove it from the Constitution altogether. The CM drew a distinction between Article 35-A and Article 370, saying the former has been removed from the statute but the latter is still embedded in it.
Article 35-A Abrogation
To the extent that Article 370 is in the Constitution, it is technically correct, as it has not been abrogated. However, it drew its strength from Article 35-A, which contained provisions that drew a distinction between Indian citizens domiciled in J&K and those outside. It was Article 35-A which defined what was once known as Permanent Residents and Non-Permanent Residents. This distinction prevented the Indian Constitution from being applied to J&K in its entirety.
In fact, Article 35-A, inserted into the Indian Constitution through a backdoor Presidential order on May 14, 1954, was what weaponised Article 370. With Article 35-A gone, Article 370 is an empty shell, without any explosives or detonation charges. Once hollowed out, it is a dud, that too a diffused dud, lying innocuously in the Indian Constitution.
Responding to CM Omar’s comments regarding Article 370, senior BJP leader Sunil Sharma has said that it is dead and has been buried. Some BJP legislators, including Yudhisthir Sethi, spoke about the futility of NC trying to evoke Article 370 which it fostered. At present, it has no utility other than the fact that it gives a NC to keep on referring to it.
BJP Leader’s Riposte
Leader of Opposition in the J&K assembly, Sunil Sharma, was speaking to reporters in Jammu regarding references to Article 370 being made now. On Saturday, he questioned demands for “special status” for the Union Territory, saying there is no provision for a special status being granted to any state or UT it in the Indian Constitution. There are certain provisions pertaining to these states/Uts but these are in the nature of “temporary and transitional’’ provisions.
The purpose of the founding fathers of the Indian Constitution in including many temporary and transitional provisions was to deal with the challenges they faced at the time of framing the statute. Even while deemed temporary, these provisions enshrined in Part XXI of the Constitution often lack specific expiry dates and will remain in force till revoked by Parliament.
Article 370 doesn’t even fall in the category of lacking a specific expiry date, as it was revoked and whittled down by Parliament on August 5, 2019. That day, it was rendered null and void by the enactment of a new law through the laid-down procedure for amending the Constitution. The “temporary and transitional’’ provisions help what is defined as Asymmetric Federalism. These allow differential treatment of certain states based on historical, social or security requirements.
Admitting that he was no legal luminary, Sharma said: “I am not a legal expert but based on my understanding of constitutional provisions, there is no mention of special status in relation to Jammu and Kashmir’s accession or merger with India. Any constitutional demand must have a legal basis.” The accession of J&K to India was done by Maharaja Hari Singh on October 26, 1947, under the same law as was signed by the other acceding princely states.
Questioning the rationale of CM Omar’s statement, he said, “What is this special status? Many states demand special status. You must have seen several states seeking special packages. Special status can mean an employment package or other benefits.”
Article 370 Is History
He said Article 370, which provided certain privileges to J&K, is now part of history. “So don’t connect it to 370. It has been buried,” he added. Referring to an NC MLA who raised the issue of special status in the assembly, Sharma said: “Where is it? It is not there. They should take the Indian Constitution to a legal expert and show where special status regarding J&K exists.”
Sharma said he would be willing to face any punishment if proof of such a special status could be provided. He alleged that political leaders, particularly from the Abdullah family, have always misled people of Kashmir to gain votes by making false claims about the special status J&K enjoyed.
He accused the NC of mocking daily wage workers, unemployed youth, and beneficiaries of government schemes such as AAY, DPL and EWS during discussions on special status. Sharma claimed that some leaders are now using the demand for special status to legitimise electoral setbacks and failures in governance. “Abdullah Parivar has cheated Kashmir. Today, when exposed for their failures, they are making claims of special status to justify themselves,” he said.
Sharma questioned the relevance of the term in contemporary politics: “If there is a special status word about J&K, I am ready to face any punishment. But it is a lie. Where is the special status?”
