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Article 370: SC verdict puts an end to ‘pointless’ controversy

Kashmir, as Jannat-e-Benazir, was hailed by bards and poets. The poetic dream is now shattered!

The Hindutva brigade agenda of abrogation of Article 370 haunted the nation for well over 70 years. It should find a closure now, in the wake of the Supreme Court’s verdict upholding the way the Modi government went about achieving it.

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As the highest court of the land, Supreme Court’s verdict has the status of ‘law of the land’. As such, the pointless controversy created by the Hindutva brigade should end once and for all. It had cast a looming shadow on the political landscape of the country, creating an imaginary rift for over seven decades.

Abrogation of Article 370 of the Constitution was an issue that dominated the ruling dispensation, primarily because of the brazen and blatant anti-Muslim bias. Nothing else seems to suggest even a semblance of sanity. Strangely, it opposes Article 370 in Jammu and Kashmir but supports identical provisions of Article 371, A to I, in a number of states like Himachal Pradesh, the North-East, Goa, Karnataka and Telangana. In Telangana, it is applicable in what is termed as agency areas.

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Now, the question arises: Will the Modi establishment similarly withdraw Article 371 through a Presidential order? Besides, the process adopted by the Modi government for the abrogation of Article 370 was far from convincing or credible.

The issue at stake is whether the constitutional procedure for abrogating Article 370 was followed. Clearly, the Constituent Assembly has to be created to secure its nod. This is so for the simple reason that only the Constinuent Assembly can give its nod, and not the State Assembly, for the abrogation of Article 370.

In this case, even the State Assembly did not give its nod. It was done by Parliament by arrogating to itself the powers of the State Assembly after dissolving the State Assembly and imposing President’s rule.

Making of Union Territories

Article 3 of the Constitution says a Union Territory can be carved out of a state. For instance, Chandigarh was carved out of Punjab and created into Union Territory, even as Punjab continued to be a state.

At least one region has to be a state, while another portion is turned into a Union Territory. In Kashmir, the state has been dismembered altogether, and two Union Territories have been created out of it. At best, Ladakh could have been carved out as a Union Territory, while Jammu & Kashmir continued as a State.

There was, however, a modicum of expectation from the judiciary that it would give clarity on certain issues, but it was not forthcoming. A number of cases were taken to the Supreme Court.

Among the high-profile cases were the Babri Masjid demolition case; Triple Talaq being criminalised and not being merely banned; the Bilkees Bano rape case; the Citizenship Amendment Act; and how a highly objectionable procedure was adopted by the Modi government for the abrogation of Article 370 in the Constitution that accorded special status to Jammu & Kashmir, strictly in consonance with the Instrument of Accession signed by Maharaja Hari Singh on October 26, 1947.

Congress at bay amid ‘mindless’ controversy

Be that as it may, at least this mindless controversy should not persist any longer. Hopefully, the Apex Court Verdict will bring closure to this unsavoury episode that had to end in the best interests of the nation.

Although, the Congress is at the centre of the controversy, it is neither a petitioner nor a stakeholder in any of the petitions, which had challenged the Abrogation of the Article 370. As such, the Congress is unlikely to seek any review of the Supreme Court judgment, despite honest disagreements with certain portions of it.

Former Union Home Minister and senior Congress leader P Chidambaram categorically stated, “Since accession, Jammu & Kashmir was — and is — an integral part of India. The people of Jammu & Kashmir are Indian citizens. We reiterate our resolve to work for the security, peace, development and progress of Jammu & Kashmir.”

This line is in keeping with the line taken by the Congress almost immediately after the dismemberment of the State of Jammu & Kashmir on August 5, 2019.

On August 6, 2019, the Congress Working Committee (CWC), in a Resolution, stated, “The CWC deplores the unilateral, brazen and totally undemocratic manner in which Article 370 of the Constitution was Abrogated and the State of Jammu & Kashmir was dismembered by misinterpreting the provisions of the Constitution. Every principle of Constitutional law, States’ rights, parliamentary procedure and democratic governance was violated.”

A major source of misinformation is Article 370 of the Constitution being painted by the Hindutva Brigade as Muslim Appeasement by the Congress under Pandit Jawaharlal Nehru. It was projected that Article 370 was a conspiracy of Pandit Nehru for giving special status to a Muslim-majority region of Kashmir Valley.

No appeasement

The fact of the matter is that the special status for Jammu & Kashmir, is not the handiwork of Pandit Jawaharlal Nehru, wantonly projected as the protagonist of Muslim appeasement policy. On the other hand, the special status for the Muslim-majority Kashmir Valley was worked out by two Hindus, Jammu & Kashmir Maharaja Hari Singh and Sir Lal Mukherjee, a retired judge of Allahabad High Court, who served as Law and Revenue Minister in Jammu & Kashmir, from 1935 to 1940.

On October 26, 1947, when Maharaja Hari Singh signed the Instrument of Accession, on condition of special status to Jammu & Kashmir. This commitment made by the Interim Indian Government was incorporated into the Article 370 of the Constitution, dealing with Jammu & Kashmir.

What is more, in the absence of Pandit Jawaharlal Nehru, two Hindus, Sardar Patel piloted Article 370 in the Constituent Assembly, assisted by M Gopalaswami Ayyangar, which finalised the Draft Constitution on November 26, 1949, and adopted on January 26, 1950.

The Delhi Agreement in 1952 did agree to considerable autonomy for Jammu & Kashmir. But, when Sheikh Mohammad Abdullah reneged, and he was arrested. That is why there have been repeated references made to going back to pre-1953 position. But, steadily, over the years, Centre’s jurisdiction was extended to Jammu & Kashmir.

In 1965, it was under the Congress Government of Mohammad Sadiq that the nomenclature of Sadr-e-Riyaasat and Wazir-e-Aala was changed to Governor and Chief Minister, respectively.

In 1975, Indira Gandhi brought back Sheikh Mohammad Abdullah by politically rehabilitating him. That was when the Indira Gandhi-Sheikh Abdullah Accord was signed. But there was no restoration of autonomy for Jammu & Kashmir.

Burkina Faso declaration

On November 5, 1995, when P V Narasimha Rao came out with his Burkina Faso Declaration for Jammu & Kashmir, declaring that sky is the limit for autonomy, there was no material difference on the ground.

In a way, Article 370 became a dead letter. But the Modi Government persisted with the formal Abrogation of Article 370 to send out a loud message to the minorities, soon after Ayodhya and Triple Talaaq.

Abrogation of Article 370 only means land prizes will shoot up as people from others States can now enter Jammu & Kashmir and buy the land. This is still not possible in Himachal Pradesh or parts of Telangana known as Agency Areas, while Jammu & Kashmir has been deprived of this protection.

Similarly, with the influx of job-seekers from other States, local youth stand to lose out heavily. Jannat-e-Benazir continues to be a distant and eluding poetic dream.

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