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No government has followed the mandate of Article 370, it is time to change that

If we don't really care about following the letter and spirit of Article 370, we can get rid of it.

Updated: Jul 13, 2018, 13:45 PM IST

My earlier piece on the demystification of Article 370 has been received with responses on expected lines. Incidentally, I have relied on the provisions of the Constitution as it exists in text. Notwithstanding it would have been appropriate if the suggestion of Presidential resolution could have come from one the legal luminaries. Having said that may I also add here another angle to this.

Presidential resolution
Here I take you back to Clause 3 under the Article 370 relying upon which I had concluded that a Presidential resolution was adequate to annul the operation of Article 370. For the contextual sake of this piece I would like to recall the relevant provision of Clause 3 and proviso thereof as follows:

  (3) Notwithstanding anything in the foregoing provision of the this article, President may by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as be may specify
Provided that the recommendations of the Constituent Assembly of the State referred to in Clause 2 shall be necessary before the President issues such a notification
The phrases shall cease to be operative or shall be operative only with such exceptions and modifications" have relevance here. 

Cessation of Article 370 can be in parts
I have already explained that the title to this article does specify that this is (or was envisaged at the time of framing of the Constitution) a temporary provisions. Further, the above recalled phrases have been included to ensure that the cessation of this provision or any part thereof could have been done progressively also. Also it is also envisaged by imputation that the Government will progressively take up various subject matter of Governance from the ambit of this Article to be brought under provisions applicable to other States of India whether Article 238 or any other Article.

No effort made
However, in the last 71 years there has been no evidence of any single area of governance governed by this Article 370 being taken out of the ambit of this Article.

My submission is that by virtue of the framing of the text of the Article the mandate had been presented to both the President of India acting on advice of his Council of Ministers or the Jammu and Kashmir Assembly through voting in a Government Resolution

Both of them have failed in their mandate in the last 70 years. 

Approaches of the Government of India
The present Government's 'Sampark se Samarthan' programme is being activated in rest of the country. Through this 'Sampark se Samarthan' programme the government could have not just established contacts with the local populace and obtained their samarthan to the benefits of having homogeneity with the rest of the country to reap the benefits in respect of some areas of Governance and gradually having taken people on board taken that area of governance outside the ambit of this Article. This would have also aided watershed development in the State. But this was not done. It was not done by the UPA or its predecessors in the 60 years they were in power. 

A Home Minister from the State
Mind you we had a Union Home Minister from Jammu & Kashmir and later he went on to be the Chief Minister of the State on more than one occasion. He was the person who could really have carried forward. But he was mollycoddling to the whims of vested interests from across the border. Hence he lost an opportunity of integrating the state of J&K with the rest of country.

Political heir of this Home Minister from J&K
His daughter who succeeded him as a political heir had also held the position of Chief Minister on more than one occasion including the recent one before deposing as the CM consequent to recent loss of confidence due to break up in the coalition. Her overwhelming love for her friends or handlers from across the border is well known. Let me take to you to August 2008, when the Amarnath Agitation Row was happening in Kashmir valley and resultant Jammu trade blockade. It is during this agitation leading a group of protestors on August 11 or 12 she did cross over to PoK, Muzzafarabad. After having treaded into a foreign territory she was allowed to come back to Indian territory and no action was taken against her by the then ruling dispensation. These are not only verifiable records, but she had at the time admitted to this. Any lesser mortal would have had hell to pay. But she was a VIP and not prosecution under the law of the land was initiated. For me this lady politician is an infiltrator rather a guspeti, as any jawan on the border will call them. 

Complicity of this political heir
More importantly, recently her government fell. Generally, perception perpetuated in public domain through media and other sources are that due to irrecoverable differences between the allies the alliance broke down.

I would suggest to readers to kindly read the UN OHR report in original. The number of times she has been quoted as a source, or her statements before the Jammu and Kashmir Assembly as head of the state government has been relied upon as a source will reveal so many things. Hence, the UN Report comes out on June 14, 2018 and immediately her government falls. Join the dots. I am not saying that she is a victim or she betrayed the nation. I simply am recollecting the events for you and helping you join the dots. 

Father and son duo politicians of J&K
We have the other political family of Jammu and Kashmir. Father and son have been Chief Ministers of the state. They have been Ministers in the Union Cabinet too. But their position on Article 370 is always ambivalent which keeps changing like a chameleon.

Hence, to expect the Chief Minister of the Jammu and Kashmir bring a resolution to modify the areas of governance and recommend it for Presidential resolution is like putting the cart before the horse and asking it to be driven. 

Demand regarding AFPSA cessation
The only thing these two political families have raised repeatedly is the cessation of operation of AFPSA, which falls under the purview of appendix to the Instrument of Accession and hence is an omnibus issue.

What has Government of India done ?
But the Government of India has also not done anything in the spirit of this Article. 

Package approach and its perils
The approach has been that every time there is an unrest in Jammu and Kashmir, the take recourse to package solution. Whether it is Rs 5500 crore package or Rs 26000 crore or Rs 80000 crore package. Let me tell you this package resolution is only helping the separatist to siphon off money from these packages to further give fillip to their movement. Most part of these package money is either swindled by contractors with political links or separatists. No wonder these separatist leaders have huge asset holding as established during the NIA raids last year. The projects being funded out these packages keep repeating itself like the Delina-Singhpoora Road, septic tank in Baramulla, school room building in Patan are funded in every package. 

What the Government should do
Hence, it is incumbent on the Government of India to progressively bring out proposals for Presidential resolution to cease the operation of various areas where cessation can be effected. While doing so the government should use their own methodology of 'Sampark se Samarthan tak', to get people on board instead of terrorists. By people I mean people of all three parts namely Jammu region, the Kashmir valley and the Ladakh.

Challenges in the endeavour
Actually, lot of misgivings have been spread by the vested interests, separatists leaders, through Pakistan and ISI sponsored Psy Ops, that the alienation levels among the people will be very high. It would be challenge to establish contact (sampark) with the masses. Hence to penetrate, establish contact and come to a confidence level with the people will be a challenging task. Not just that with the beginning of this endeavour also the vested interests with their Pakistani and ISI backers will not keep quiet. They will ensure concurrent challenges. 

Samadhaan through Sampark se Samarthan thak
But I again want to reaffirm that this is a Constitutional mandate. The security forces have done their job creditably for long. But the administrators have failed. Now it is the time for this government to initiate the process. Let me make it clear that it is not dialogue with rogue elements. This should be 'Sampark to samarthan' in the real sense. It should be in true spirit of the word. Like the Samahita as ordained in Vedas. Hita to every one equally. I do not intend to discuss the difference between Brahmana and Samahita, as that is beyond scope of this work. 

(RVS Mani is a former Central government officer who shot to prominence as a whistleblower in 2009, when he alleged he had been forced to sign documents that fabricated a narrative of 'Saffron Terror'. His book, 'Hindu Terror: Insider account of Ministry of Home Affairs', was released recently.)

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)