Constitution Cannot Be Above Country Come What May - Article 370

I still just cannot believe it. It will take some time for me to believe that the special status of Jammu and Kashmir has been abrogated! But what has happened has to be believed. Even in my wildest of dreams could I never expect that a day would come when Article 35A and Article 370 would become a thing of the past and Jammu and Kashmir would be made a Union Territory! But it has happened in reality! This NDA government led by Prime Minister Narendra Damodardas Modi deserves all the praises, laurels and applaud for taking such a courageous decision which no Prime Minister could ever dare to take solely on the ground that what our first Prime Minister Jawaharlal Nehru does cannot be ever questioned or challenged! This alone explains that why inspite of more than 72 years of independence we see that the most populated state of India that is Uttar Pradesh whom the former UN Secretary General ban ki moon had slammed as 'rape and crime capital of India' has just one high court bench created way back on July 1, 1948 just about 200 km away from Allahabad at Lucknow and nowhere else compelling the people from hilly areas who now form separate state called Uttarakhand to travel thousands of kilometers all the way to Allahabad as there was no high court bench there even though Justice Jaswant Singh Commission headed by former Supreme Court Judge Justice Jaswant Singh had recommended 3 high court benches for UP at Agra, Nainital and Dehradun yet not one was created even though benches were created at other places like Aurangabad in Maharashtra, Jalpaiguri in West Bengal and Madurai in Tamil Nadu only on the ground that Nehru's decision can't be changed!

Nothing on earth can be more ridiculous than this! We all respect and we must respect Jawaharlal Nehru for leading our nation as Prime Minister for the longest tenure from independence for 17 years! But this does not mean that if he committed some Himalayan blunders like approving just one high court bench for most populated state of India that is UP which has maximum pending cases should never be corrected or the other mistakes which he did in 1948 war by rushing to UN without conquering the whole of Jammu and Kashmir or in the 1962 war which we lost to China by not using Air Force which was far more advanced than that of China still they should never be corrected or even questioned solely on the ground that Nehru's legacy can never be disturbed. He also was a human being and can commit error!

Let me reiterate once again what I have always believed in since 1993-94: No individual, no leader, no Prime Minister, no President, no law, no Constitution, no Court not even the Supreme Court of India, no Judge not even the Chief Justice of India or anyone else can be above the country and we all as good citizens must be prepared to undergo any sacrifice to ensure that the unity and integrity of our country is always maintained under all circumstances! This was ingrained deep inside my mind by my best friend Sageer Khan whom I always admire, appreciate and adore! There can be no denying or disputing it!

It was about 26 years ago in 1993 that my best friend Sageer Khan confided in me that if there are two articles in our Constitution which he considers as betrayal of India, they are none other than Article 35A and Article 370! He said that it is a matter of national shame and a national disgrace that despite being an Indian, no person could either buy any property in Jammu and Kashmir or apply for a job there or settle there or buy even an inch of land there even though one can buy property anywhere else in world and settle down yet no Prime Minister till date has ever shown the courage and conviction to come forward and abolish Article 35A and Article 370 in one go! He also said that what a tragedy that if I want to marry any women I can marry but if I want to marry a woman from Jammu and Kashmir I cannot marry because then she will lose all her rights and I would not be entitled to either settle there or apply for a job there as it is prohibited thanks to Article 35A and Article 370 but if a Pakistani wants to marry a woman from Jammu and Kashmiri, he can easily do so and neither will the women lose any rights nor will the Pakistani be denied citizenship or any right to settle there! How can this be ever justified in the name of autonomy? It is a national disgrace!'

It is a no brainer that he (Sageer Khan) very rightly said that, 'Can on earth there be anything more dangerous than this? I fail to understand why Article 35A and Article 370 were inserted in the Constitution in the first place! Was it at the behest of some foreign power? I don't know but it is most shocking that these two most dangerous Articles have been allowed to continue in the Constitution for so long! How can one country have two Constitutions, two citizenship, two set of laws, two flags and what not? It is because of these two most dangerous Articles! Constitution cannot be above our country under any circumstances come what may! Both these Articles must be thrown out or rather kicked out immediately because they are against the very concept of a united and strong India.'

Let me be candid to confess here: At that point of time I was simply just not aware as to what these two Articles postulate as I was doing BSc at that pointy of time where Constitution found no place but Sageer Khan was doing his BA and was studying Constitution as part of his course! Yet I nodded as if I too was aware about it!

Let me say this on record: I too was most shocked to learn from my best friend Sageer Khan that such dangerous Articles exist in our Constitution which favours integration of Jammu and Kashmir with Pakistan and treats Indians as foreigners! How can this ever happen that a Pakistani be allowed to settle in Jammu and Kashmir and inherit all the rights after marrying a women there but no Indian from any state can ever settle there even if he marries a woman from Jammu and Kashmir rather the women herself will lose all her rights if she dares to do so as stipulated in Article 35A? This is nothing but an open betrayal of India and open treachery with our country! We all must always remember what my best friend Sageer Khan said in 1993 that, 'Constitution can never be above country come what may. These two treacherous Articles 35A and 370 should never have been allowed to enter our Constitution in the first place!'

Needless to say, we all know fully well that even Dr BR Ambedkar never favoured the insertion of Article 370 and Article 35A and opposed them tooth and nail but yet they were later brought in even though in the original Constitution they had found no place! How can this be ever justified? What a joke that it is only for Jammu and Kashmir and not for any other state like Maharashtra or Gujarat that our leaders repeatedly say that it is an integral part of India yet have ensured that these two most dangerous Articles of our Constitution continue uninterruptedly for more than 70 years!

No doubt, the scrapping of Presidential proclamation of 1954 by the Constitution (Application to Jammu and Kashmir) Order, 2019 which was passed on August 5 in concurrence with the Government of the State of Jammu and Kashmir with immediate effect is the most boldest step by any government in India since independence! This is a more bolder step than even surgical strikes of 2016 or the Balakot air strikes! This alone explains that why even Sushma Swaraj who was the former Union External Affairs Minister and who expired just recently before dying left a most memorable tweet in which she expressed her utmost happiness in the following words, 'Thank you Prime Minister. Thank you very much. I was waiting to see this day in my lifetime.'

No doubt, even though Congress is fulminating against revocation of Article 370 and Article 35A yet it is most heartening to note that many prominent faces of Congress party including Janardhan Dwivedi, Jyotiraditya Scindia, Deepender Hooda, Abhishek Manu Singhvi, Salman Khurshid, Milind Deora among many others have expressed their solidarity with this latest move by Centre! Senior and eminent Congress leader Janardhan Dwivedi minced no words in saying that a historic blunder has been remedied today after the scrapping of Articles 35A and 370! Jyotiraditya Scindia said that he supported the Narendra Modi government's proposed move to bifurcate the state into two Union Territories - Jammu and Kashmir and Ladakh. He tweeted minutes before the Lok Sabha voted on the resolution that, 'I support the move on #JammuAnd Kashmir & #Ladakh and its full integration into union of India. Would have been better if constitutional process had been followed. No questions could have been raised then. Nevertheless, this is in our country's interest and I support this.'

As things stand, Congress senior leader Janardhan Dwivedi said happily that, 'It is a very old issue. After Independence, many freedom fighters did not want Article 370 to remain. I had my political training under Dr Ram Manohar Lohia, who was against this Article. Personally, this is an issue of a matter of satisfaction for the nation. This historical mistake that happened at the time of independence has been rectified today, even though late, and is welcomed.' Mumbai Congress Chief - Milind Deora said that it was 'very unfortunate' that Article 370 was being converted into a 'liberal vs conservative debate'. He said in a tweet that, 'Parties should put aside ideological fixations & debate what's best for India's sovereignty and federalism, peace in J&K, jobs for Kashmiri youth and justice for Kashmiri Pandits.'

Not stopping here, another Congress leader Deepender Hooda who is a three-time MP from Haryana's Rohtak constituency said that, 'I've always maintained that Article 370 should be scrapped. It is irrelevant and has no place in the 21st century. Abrogation of this article is in the interest of national integrity and the people of J&K which is an integral part of India. Senior Congress leader Anil Shastri also openly came out in support of Centre's move and said that the the people are totally with the government on this issue! There can be no denying it!

Above all, even the Congress's chief whip in the Rajya Sabha - Bhubaneshwar Kalita strongly protested against his party's stand and said emotionally while quitting his membership in Rajya Sabha after the party asked him to issue a whip to all members for opposing the bill that, 'I was asked by the party to issue a whip but this is against the mood of the nation. The party as it is on its way towards destruction and I can't be a contributor to it.' Even Congress MLA from Rae Bareli Aditi Singh said on Twitter that, 'United we stand! Jai Hind. #Article 370'. She termed it a historic decision and urged people not to politicize it. When someone reminded that she was a Congress leader, she boldly retorted that, 'Main ek Hindustani hoon (I am an Indian).' Absolutely right!

Interestingly enough, even veteran Congress leader Karan Singh who is son of J&K's last ruler, Maharaja Hari Singh who signed the Instrument of Accession in 1947 and who was a Union Minister in the Indira Gandhi Cabinet in 1967, has been a member of CWC and worked with four generations of the Nehru-Gandhi family took a divergent stand from that of his party and said that he did not agree with a 'blanket condemnation' of the government's decision and said that it has 'several positive points'. He welcomed the government's decision to make Ladakh a Union Territory and reminded that, 'In fact, I had suggested this as far back as 1965, when I was still Sadr-i-Riyasat of J&K, when I had publically proposed reorganisation of the state.' He said that he hoped the hill councils of Leh and Kargil would 'continue to function, so that in the absence of the Legislature, the grassroots opinion of the people of Ladakh are duly represented.' He minced no words to reiterate his support to scrap Article 35A and the government's plan to initiate an exercise to redraw the contours of the Assembly constituencies. He said that, 'The gender discrimination in Article 35A needed to be addressed as also the long-awaited and enfranchisement of lakhs of West Pakistan's refugees and reservations for Scheduled Tribes which will be welcomed. There will also be a fresh delimitation which, for the first time, will ensure a division of political power between the Jammu and Kashmir regions.'

Be it noted, Union Home Minister Amit Shah who tabled the Jammu and Kashmir Reorganisation Bill, 2019 and the statutory resolutions in Rajya Sabha around 11 am after the Union cabinet met at Prime Minister Narendra Modi's residence at 9.30 am to grant the go-ahead said that, 'Article 370 was a temporary provision…how long can a temporary provision be allowed to continue…After abrogation of Article 370, Jammu and Kashmir will truly become an integral part of India.' Saying Article 370 was at the root of terrorism, Amit Shah told the House that full state status will be restored to Jammu and Kashmir at an appropriate time when normalcy returns. He rightly said that the decision to do away with the special status of J&K and to bifurcate the state into two UTs was in the supreme national interest! No denying it!

Why is it that so many opposition parties like AAP, BJD, BSP, TDP, AIADMK, YSR-Congress and many others extended their unstinted support to Centre? It is because this most historic decision reflected the true sentiments of every Indian! This alone explains that why so many top leaders of Congress party also which opposed this landmark decision came out in open support of it! Why even JD(U) which initially walked out in protest has now endorsed Centre's move to scrap Article 370? It is because many senior party leaders came out in full support of Centre's bold move! There were rumblings of discontent even within TMC led by Mamata Banerjee and many leaders openly voiced their unstinted support for Centre's bold move!

Truth be told, the first statutory resolution stated: 'That this House recommends the following public notification to be issued by the President of India under Article 370(3): ‘In exercise of the powers conferred by Clause (3) of Article 370 read with clause (1) of Article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased to declare that, as from 5th of August, 2019, all clauses of the said Article 370 shall cease to be operative except clause (1).'

To put things in perspective, Article 370 will survive on paper but will now read 'All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 or Article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, bye-law, rule, regulation, notification, custom or usage having force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise.'

Going forward, the second resolution pertaining to the Bill said that the President has referred the Jammu and Kashmir Reorganisation Bill, 2019 to the House 'under the proviso to Article 3 of the Constituion of India for its views as this House is vested with the powers of the State Legislature of Jammu and Kashmir, as per proclamation of the President of India dated 19th December, 2018.' Amit Shah who is Union Home Minister tabled the Bill and the statutory resolutions after Ram Nath Kovind signed the official notification, The Constitution (Application to Jammu and Kashmir) Order 2019, superseding the Constitution (Application to Jammu and Kashmir) Order 1954 under which the Constitution was applied only selectively to the State. The notification said that, 'All the provisions of the Constitution, as amended from time to time, shall apply in relation to the state of Jammu and Kashmir…'

It would be pertinent to mention here that the government has added in Article 367 of the Constitution a clause 4 which makes four changes. The order said references to Sadar-i-Riyasat of Jammu and Kashmir shall be construed as references to the Governor of J&K. Similarly, references to the Government of J&K shall be construed as reference to the Governor of J&K acting on the advice of the Council of Ministers. With Opposition members expressing their dismay that the Bill to bifurcate was not even circulated, Shah introduced the Bill and statutory resolutions again promptly. Shah also introduced the Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 providing for 10 percent reservation for SC, ST and OBCs in J&K which now after being passed and having received President's assent have become a law.

It must be mentioned here that Leader of Opposition Ghulam Nabi Azad who toed his Congress party line of opposing it lashed out while taking potshots at BJP saying that, 'The BJP has murdered the same Constitution and democracy. The Article 370 through which we had given Jammu and Kashmir to India… today the Modi government has torn it to pieces.' But Amit Shah countered this by saying that the Bill he has tabled is historic. He said that, 'Because of Article 370, people of Kashmir are living in poverty. They don't get the benefit of reservation…Corruption is rampant. Three families have looted Jammu and Kashmir all these years. The Leader of the Opposition has said Article 370 attached J&K to India. That is not true. Maharaja Hari Singh signed the instrument of accession on October 27, 1947. And Article 370 came into existence in 1949, two years later. It is not true that Article 370 attached J&K to India.' What Amit Shah is saying is hundred percent right. Article 370 was against national interests and this alone explains why the founding father of our Constitution - Dr BR Ambedkar opposed it vehemently and did not allow it as long as he was at the helm!

Moving on, Amit Shah said that Article 370 was always considered temporary because it had to go one day. He said that, 'But no one had the political will…then there was vote bank politics…they wanted to make a vote bank out of it. We don't want to make a vote bank and neither do we lack political will.' Amit Shah said that the UT in Ladakh will have no legislature like Chandigarh while the UT of Jammu and Kashmir will have a legislature like Delhi and Puducherry.

While reading out provisions of Article 370 (3), the Home Minister said there are provisions within that which state that Article 370 shall cease to be operative or can be amended and the President has the right to issue such a notification or constitutional order. He told the House that, 'We are adopting the same path as adopted by the Congress in 1952 and 1962 by amending the provisions of Article 370 the same way through a notification.' So what is wrong in it? Congress certainly didn't cover itself with glory by alienating Jammu and Kashmir from India by not allowing anyone to either settle there or buy any property there and creating separate flag, separate Constitution, separate laws, separate citizenship for them! Even former CJI JS Khehar had rightly questioned and ridiculed this saying that, 'How can one country have two sets of Constitutions, two sets of laws, two sets of citizenships, two sets of flags?'

It was most heartening to see that even the Lok Sabha approved the resolution and adopted the resolution abrogating special status to Jammu and Kashmir under Article 370 of the Constitution and a Bill for splitting the state of Jammu and Kashmir into two Union territories with 351 members voting in its support and 72 against it while one member abstained! Centre has rightly clarified that it would hold no talks with Hurriyat which always keeps singing the tune of Pakistan and would speak directly to the people of Jammu and Kashmir!

It was a national tragedy that earlier all was were applicable all over but not in J&K! This ensured that the Right to Education Bill could not be applied to J&K and the children living there were thus deprived wrongly of the fundamental right to get education! Same is the case with other landmark Bills like Right to Information among others! Amit Shah also rightly clarified that, 'When I say J&K, I include Pakistan Occupied Kashmir (PoK) and Aksai Chin. Both are included in the territorial boundaries of J&K…We will give our lives for it.'

It is most heartening to note that when Pakistan rushed to United nations Security Council, it refused to intervene! Similarly China and USA also advised Pakistan not to severe its ties with India as it will itself suffer most and refused to intervene! I fail to understand that how can Pakistan decide that what India does in its Constitution? Did Pakistan authored Article 370 and Article 35A? Certainly not! Then who are they to jump and shout when we amend our Constitution?

Let us not forget that it is Pakistan who will suffer most if it dares to cross sword with India and this is what its traditional ally China has rightly advised them! Jammu and Kashmir is internal matter of India as rightly pointed by eminent Supreme Court senior lawyer and Congress leader and former Union Minister Salman Khurshid and who is Pakistan to ask us what we do in our Constitution! Pakistan's belligerent approach on India kicking out Articles 35A and 370 speaks for itself as to who was gaining from it but Pakistan is only fooling itself if it thinks that by ending diplomatic relations or stopping train service it can put India under pressure! Pakistan should not forget that by Indus Water Treaty of 1960, it is getting 80 percent share and India just 20 percent. If India decides to scrap it, Pakistan's already sinking economy will get completely drowned! Now the ball is clearly in court of Pakistan! Pakistan must mind its own business as India is a sovereign country! Supreme Court Judge NV Ramana rightly refused to entertain a plea of urgent hearing by senior Supreme Court lawyer ML Sharma who said that Pakistan would move the United Nations against the Presidential order and said that, 'If they go to the United Nations, can the UN stay the constitutional amendment of the Union of India?'

Before parting, let me say that every Indian must support this latest move by Centre which seeks to ensure complete integration of Jammu and Kashmir with India! We all must respect Constitution but let me again reiterate that Constitution cannot be above country come what may! Those Articles which are in conflict with our national interests have to be either amended or removed from our Constitution as Constitution cannot be above country come what may!

 

Sanjeev Sirohi 
on 21 August 2019
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