Article 370 of the Constitution had lately become more of an emotional
matter than anything else for both people living in Jammu & Kashmir
and rest of Indians. This article had provided that no provision of
the Indian constitution and no law passed by Indian parliament shall
be extended to the state of J&K without the concurrence of the state
government. Defence, communication and external affairs were
exceptions. Before the provisions of this article were scrapped two
weeks ago, 260 out of 395 articles of Indian constitution were already
extended to the state by previous governments through the concurrence
of the state government. Similarly, out of 97 subjects on which
parliament has exclusive powers to make laws, 94 are extended to J&K.
Which means no need to take concurrence from state government before
extending laws of these 94 subjects to the state. For some sections of
J&K, this was an article of faith while for rest of Indians, It was a
“discriminatory” provision which needed to be struck down. Both the
sides ignore the above facts. The government could have extended the
remaining provisions just like the previous governments did it. But
the government for which, people’s emotions are like oxygen, it was
necessary to show that it is doing something which has never happened
before.
On August 5, Home minister Amit Shah informed the Rajya Sabha that the
President of India has struck down provisions of article 370 using his
special powers, and introduced a bill to bifurcate and downgrade the
state of Jammu & Kashmir into two union territories of Jammu & Kashmir
and Ladakh. J&K will have legislature while Ladakh will not. The
parliament passed the bills with some opposition parties too
supporting the government.
Agreed that article 370 was a temporary provision and it had to go one
day, but with the concurrence of J&K Constituent Assembly. Since the
constituent assembly was dissolved in 1956, the central government
interpreted it as Legislative Assembly of J&K. The Legislative
assembly is also not there because the governor dissolved it in last
November. The state is under President’s rule since then. In such a
scenario, according to the constitution, parliament performs the
function of that state’s legislative assembly. So on paper the
government did nothing wrong. But such important decisions regarding
the status of a state were taken with parts of that state under
lockdown. No connection of mobile and landline, Internet shut down,
curfew imposed and elected representatives of the state under house
arrest. In other words, the decisions regarding the status of J&K were
taken without consulting with even a single person of that state.
Lockdown continues in parts of the state as of August 21 evening.
No matter what you think about article 370 and Kashmir problem, the
manner in which the decisions of scrapping the provisions and
bifurcating and downgrading the state were taken raises some serious
questions. Government justifies the decisions and the manner saying
that it has done so to ensure well being and security of the people of
J&K. How is it that only people sitting in Delhi know what is good for
people living in J&K? What about the principles of democracy and
federalism? Is it okay to undermine democratic process for
development, given that the term is subjective? I fear that this
manner of taking decisions in the name of development and security
will become a new normal. In such a scenario the question really is,
should development come at the cost of civil rights?
Reference: Article 370, Federalism and the Basic Structure of Indian Constitution by Faizan Mustafa on theindiaforum.in
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