Weakening of J&K constitution through Article 370
Nov 24, 1965: Sadar-i-Riyasat becomes the governor
July 23, 1975: State legislature barred from amending the State Constitution on matters in respect of the governor, the Election Commission
July 30, 1986: Governor empowered to legislate even on a matter in the State List on the strength of a Rajya Sabha resolution
By Junaid Nabi Bazaz
Srinagar: Can pro-India political parties undo legislations that were extended to Jammu and Kashmir by New Delhi through “constitutional frauds” during the past six decades? The answer to this question throws light on whether these parties can really accomplish what they have promised—restoration of Article 370 in its original form (National Conference) and strengthening of the article (People’s Democratic Party).
Dr Sheikh Showkat Hussein, who teaches law at the Central University of Kashmir, said all these laws can be sent back to “where they came from by means of Article 370 by which they were extended to the state in the first place”.
Practically, the first step will involve seeking concurrence of the state government. After that, the laws will be sent to the Indian president for approval.
The president effectively has the veto power.
“It is up to him whether to accept it or reject it,” says AG Noorani, noted Supreme Court lawyer and author of many books on the controversial Article 370.
The two main pro-India parties, NC and PDP, which apparently want a change in the political status quo of the state but within the Indian Constitution, have once again talked of preserving the special status of the state as enshrined in its own constitution and as engendered by the Article 370.
Naeem Akhter, PDP chief spokesman, said, “We want that the provisions of the Indian constitution that were extended to the state shall be taken back and that the remaining provisions shall not be extended.”
How does your party plan to achieve that?
“This is what I have to say about it at this point of time,” Akhter said.
National Conference spokesman Junaid Azim Mattu said his party has always wanted that the laws extended to the state shall be revoked and no other law shall be applied to the state in future.
“Well, I am not a constitutional expert,” Mattu said when asked how his party will undo the previous legislations and stop the application of laws not yet extended to the state.
But it is a well-known fact that it had to bite the dust when in the year 2000 it passed in the assembly, with a two-third majority vote, a resolution demanding the restoration of pre-1953 status of Jammu and Kashmir.
The New Delhi did not even discuss the resolution. Out of the 87 assembly seats, the NC had 57 seats. This time, the largest political party, PDP, has 28 seats and is about to enter into an alliance with the BJP, which has vowed to abrogate whatever remains of the Article 370.
“Individuals and political parties that want to change status quo can get together and initiate processes to undo these legislations. Even if their efforts come to a naught they will still build a pressure on New Delhi,” said Muzaffar Ahmad, a political science scholar.
At present, out of total 395 articles of the Indian Constitution, 260 have been applied to the state. According to the Article 370, no provision of Indian constitution is applicable to the state unless the concurrence of the state government is sought.
Because of these legislations, the state lost many powers. Till late 1950s, any person from India had to get a permit from the state’s immigration department to visit the state, while the Supreme Court of India and the Election Commission of India had no jurisdiction over the state. The state had a Prime Minister and Sadr-i-Riyasat who respectively became chief minister and governor.
According to former law secretary Ghulam Hassan Tantray, the state assembly can again rename the CM to PM and governor to Sadr-i-Riyasat but “they will have none of the powers their predecessors had”.