Big Compromise with J&K on National Laws
The truth is finally out. Mehbooba Mufti is an ardent supporter of the evil “separatist” agenda in J&K, if not a “separatist” herself. For all you know, she may be a wolf in sheep’s clothing — like her father was alleged to be.
After all, Mufti Mohammad Sayeed, who once held crucial posts in the Indian Government’s Cabinet, expressed gratitude to Pakistan for allowing the State’s Assembly elections of 2015 when he became the Chief Minister of J&K for the second time. And that gratitude to Pakistan was a highlight of his inaugural speech. Yes, the blood can often tell.
But now, the wolf’s clothing has been shed, albeit unconsciously.
Speaking in Srinagar on July 29 on the occasion of her Public Democratic Party’s 18th anniversary, Mehbooba Sahiba said that “Kashmir is caged in a prison.” What had made her so angry was the National Investigation Agency (NIA) report recommending closure of barter trade across the J&K borders and, possibly, the provocation was the 10-day judicial custody of seven “separatist” leaders. The latter event was what made her scream that “You cannot jail an idea.”
And, pray, what is that “idea”? Nayeem Akhtar, Mehbooba Government’s Public Works Minister, said “That idea is the idea of Azadi. Denying it or curbing it will not solve the issue.”
This self-generated perception of suffocation is hallucination and hogwash. It was also felt by the Sheikh Abdullah dynasty which first asked for “autonomy” in the talks of “Sher-e-Kashmir” with Indira Gandhi in 1975; then by his son, Farooq Abdullah whose report submitted to the Vajpayee government as “a plea for restoration of the pre- 1953” was found as “unacceptable” in July 2000, and, thirdly, by his grandson, Omar, in May 2016, which has gone unnoticed.
But now the PDP government of Mehbooba Sahiba has taken a giant leap from “autonomy” to Azadi. But without spelling out what that Azadi means. Perhaps she doesn’t have the knowledge or the perspective, or both, of that word which strikes an emotional chord among our University goons supported by shameless politician leaders.
It seems that the Sahiba doesn’t also have the depth to understand what a rare kind of democracy, which the Constitution of India had sought to bestow in November 1949 after two years of debate.
That document’s villain has for long been found to be Article 370, which, though meant to be “temporary” now appears to have an eternal life. The rulers of the J&K State have simply refused to remove the blurred, black spectrum from the rainbow vision attempted by the makers of a truly democratic republic. Here’s a two-part reminder of what the Abdullah and the Mufti dynasty have left the rest of India to suffer.
Thus, as per the Instrument of Accession to the Indian Dominion signed by the J&K Maharaja on 26th October 1947, Article 370 stipulates that, as far as their applicability to J&K is concerned, the Indian Parliament is authorized to make laws only on the subjects of Defence, External Affairs and Communications; further, whether an intended Parliamentary law corresponds to one of those three subjects needs to be so declared by the President of India in consultation with the ruling J&K State government. Which other Parliamentary democracy in the world has to stoop so low to what is just a small part of the nation’s territory?
Article 370 also lays down that, for making national laws on subjects other than the above three subjects, our Parliament needs the consent of the ruling J&K State Government to make that law applicable to J&K State— fully or in part. The following are some of the major Parliamentary laws which are not applicable to J&K because of this hurdle of Article 370.
1) Indian Penal Code: Instead, of the IPC, what prevails in J&K is the Ranbir Penal Code (RPC) introduced in 1932 during the Dogra dynasty’s rule from 1846 to about 1947. No wonder we don’t hear of any IPC case in J&K. One even doubts whether the country’s law fraternity is conversant enough with the RPC to file and contest a case on it. In fact, a popular book shop in Mumbai for Government legal publications says that he has not even heard of the RPC, leave alone stocking it for sale.
2) Prevention of Corruption Act of 1988: Do you know of any PCA case in J&K?
3) The Religious Institution Act of 1988: This law prohibits religious institutions from allowing their premises for the promotion of political activity and storing of Arm and Ammunition. Aren’t the “separatists” in J&K doing exactly that?
4) The Delhi Special Police Establishment Act of 1946: The power of CBI is derived from this act and thus J&K is outside the purview of CBI.
5) 42nd Constitutional Amendment Act: The State refused to accept the 42nd Constitutional Amendment Act of 1976 by which the word “Secular” was added to the Preamble of India’s Constitution. Thus, despite all the noise being created by the Congress and allied partners, “secularism” is not at all a sacred word in J&K; it can continue to discriminate against the Hindus, the Christians and the Buddhists.
6) Central driven laws: A number of Central driven laws like the Wealth Tax, Gift Tax, and intermarriage with other Indian nationals do not exist in
J & K. The Centre’s Service Tax is not applicable in J&K; instead, the State has its own Service Tax. The position after the GST came is not clear as yet.
7) Form of Oath of Office or Affirmation. As per the Third Schedule of the Indian Constitution, that sanctimonious pledge in India (excluding J&K) is sworn in the name of the Constitution of India, but J&K lawmakers swear it by the J&K State. Unbelievably, every Court Judge, including the Chief Justice of the State has to do that. Why, even the State’s Chief Minister is required to swear by the constitution of Jammu & Kashmir and not that of India. Now, after being found out on July 29, you know why the Mehbooba Sahiba’s allegiance leans to where it does.
8) The Union Government’s Right to Information Act, 2005 is not applicable in the J&K state and it reportedly has its own RTI.
9) The Protection of Human Rights Act, 1993 is applicable to J&K only insofar as it pertains to the matters related to any of the entries enumerated in List I or List III (of the Seventh Schedule of the Indian Constitution) relating to subjects on which the Centre (List I) and Centre as well as the State (List III) can make laws.
10) The Commissions of Inquiry Act, 1952. It “shall apply to the State of Jammu and Kashmir only in so far as it relates to inquiries pertaining to matters relatable to any of the entries enumerated in List I or List III in the Seventh Schedule to the Constitution as applicable to that State.”
It may be argued by the left-liberals that it was we who agreed to allow the J&K Maharaja to sign that very Instrument of Accession (IOA), which all the prevailing 562 princely States were mandated to sign following the British Parliament’s Indian Independence Act, 1947. And, because that IOA provided for limitations on the Union Government of India’s power to make laws, so be it. Why crib now?
The truth of the matter is that, all the other Princely States who signed on the IOA gave up the rights under it and instead, they agreed to merge under the Constitution of India. However, in a narrow, selfish act, the Maharaja Hari Singh, insisted on having his pound of flesh as provided by that Instrument.
That decision has now become a tragic irony of history.
Maharaja Hari Singh, you see, had panicked and rushed out to Jammu when a so-called tribal invasion from Pakistan on October 21/22 of 1947 led to slaughter, plunder and rape in Srinagar. Having hesitated to sign the IOA on for weeks and weeks, he finally agreed to do by pleading that the Indian Government sent its military forces to drive out the murderous tribals (Pakistanis, really) from his State. Thus, Hari Singh acceded to India only because his whole regime was threatened with destruction, and not because of any sentiment for a free India. As such, the Indian Government could have forced him to accept a democratic, republic, which India was heading to. In short, he forgot that it was Kashmir, which was acceding to India, and not India which was acceding to Kashmir. Tragically, Nehru’s India also forgot that.
Mehbooba Sahiba is now behaving just as her Maharaja did long ago, and what was done by the governments and dynasties that preceded her.
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Arvind Lavakere has been a freelance writer since 1957. He has written and spoken on sports on radio and TV. He currently writes on political issues regularly. His writings include a book on Article 370 of the Indian Constitution.