The Hindu Editorials Mains Sure Shot ( 06th July 2019)
GS-1 and 2 Mains
Question – Critically analyse the consequences of revoking Article 370 and 35A. (250 words)
OR
– What are the different aspects of the Presidential Order of 2019 regarding the special status of Jammu and Kashmir? Discuss (250 words)
Context – President Promulgates Constitution (Application to Jammu and Kashmir) Order, 2019
What was Article 370?
• Article 370 allowed Jammu and Kashmir to have its own Constitution and also the right to frame its own laws.
• The laws passed by Parliament had to be separately ratified by the state’s assembly to be made laws in the state.
What was Article 35A?
• It prohibited people who were non-residents of the state to buy land and to avail facilities provided by the state government.
• But it is being criticized that taking this away might change the demography of the state.
Arguments in favor:
• The provisions of Article 370 caused delays and mismatches.
• For example, it was only after one week, when the other states had adopted GST, that the J&K assembly passed a resolution to join the new tax framework.
• A gas pipeline waited for two years -from 2011 to 2013-to get right of use provisions to enter the state.
• The provisions of article 35A also hampered trade and business in the state.
• The industrialists were left with the option of either taking the land on lease, or collaboration with some local residents, both are inefficient and costly way of doing business.
Why being criticised?
• It will stain India’s social fabric not only in its impact on Jammu and Kashmir but also on Federalism, parliamentary democracy and diversity.
• Founding fathers of our constitution seemed a strong Center but also showed the route to persuasion and accommodation of linguistic and religious minorities in the interest of national integration.
• The Presidential Order was passed without any legislative input or representative contribution of its people because-
1. First it was declared by a Presidential decree that the ‘Governor’ of J&K, without regard to the fact that he has no Council of Ministers to aid and advise him (since there is President’s rule going on), can speak for the state government and give his concurrence to any modification in the way the Constitution of India applies to Jammu and Kashmir.
2. Second on the basis of this ‘concurrence’, the latest Presidential order scraped the previous one of 1954, abrogating the separate constitution of J&k.
3. And the fact that the state is under President’s rule, it had been used to usher in a new dispensation under which J&K becomes a UT with a legislature and Ladakh another UT without a legislature.
• The thing to be kept in mind is that the state has been turned into a UT without any recommendation from the state. Even though a state’s concurrence is not required, still the fact that it has been done in concurrence with the Governor of J&K who is a non-elected member. This is being seen as an executive excess.
• So the legality of this self-enabling aspect of this Presidential Order is being seen as a ‘hop-step-and-jump’ feat.
• I.e. It ‘hops’ over the requirement of the State government’s consent by declaring that the Governor is the State government. It ‘steps’ over the need for aid and advice by the ministerial council by saying the Governor’s opinion is enough. And it ‘jumps’ over the fact that there is no constituent assembly now by merely reading the term as ‘legislative assembly’, and letting Parliament perform the role of the State legislature.
• While it is true that in 1961 the Supreme Court upheld the President’s power to ‘modify’ the constitutional provisions in applying them to J&K, but whether to invoke it to make such a radical change where a functioning State has now been downgraded and bifurcated into two Union Territories. It is inconceivable that any State legislature would ever have recommended its own demotion in status.
Conclusion:
• J&K is a Muslim majority area that had chosen a secular India over Islamist Pakistan. There should have been more effort to build a concurrence among the people. Though all the people would not have agreed but the way it was done with massive military build-up and house arrest of senior leaders, with no voice of the people on such a matter that directly affects their life and sentiment, reveals a cynical disregard of democratic norms. But this may have unintended consequences.
• The very fact that it was a Muslim majority area, bordering with Islamist Pakistan, is a part of secular India had not gone well with the Islamists. They always resented over this. This also happens at the backdrop of U.S. withdrawal from Afghanistan.
• This withdrawal will trigger an unforeseeable churn in Islamist politics in the region. Islamists have always viewed Kashmir as a component of their global grievances. Whatever was the intention in enabling the full integration of Jammu and Kashmir with India, Monday’s decision to alter the State’s status could have unintended and dangerous consequences.
हिन्दी