Addressing a rally in Jammu BJP leader Narendra Modi said that Article 370 needed to be debated. BJP leaders were quick to rebut him to affirm that their party’s opposition to the Article remained unchanged and that he had been misunderstood. Kashmir politicians rubbished Mr. Modi to state that Article 370 was permanent and could never be changed and therefore there was no room for debate. Mr. Modi responded with a tweet on Internet saying that a debate was needed not only on Article 370 but on all issues related to Jammu and Kashmir. Mr. Modi was only half right. A debate is needed not only on all issues related to Jammu and Kashmir but also to all issues related to the Indian political system.
Consider the controversy over Article 370. Forget for a moment its history and all the legal quibbling that may go with it. Focus on what the protagonists really want to decide whether an amicable agreement can be achieved. The Kashmir leaders of various groups and parties are determined to preserve the autonomy of the state and their right to their present degree of autonomous self-rule. The BJP leaders are determined to create a uniform Indian Republic in which no state enjoys a special status that might encourage separatist tendencies. There is an obvious solution.
Article 370 cannot be abolished because Article 1 of the Indian Constitution that lists the states of the Union refers to the Instrument of Accession with reference to the inclusion of J&K in the Indian Union. Article 370 is part of the Instrument of Accession. It thereby becomes the bridge linking J&K to India. By abolishing the Article that link may be considered broken which could lead to constitutional problems affecting the territorial integrity of the Indian Union. That seems to be the legal impediment to the abolition of Article 370.
However there is no legal impediment to parliament enacting new law. Article 370 specifies that except for Defence, Foreign Affairs, Finance and Communications as listed in the Instrument of Accession, legislation by Parliament on all other laws would require the concurrence of the J&K State Assembly. Thus the state's residents may live under separate laws related to citizenship, ownership of property, and fundamental rights, as compared to the rest of India.
With a little give and take and cooperation of the J&K State assembly the autonomy granted by Article 370 could be modified to ensure that in the electoral, judicial and citizenry systems there is uniformity between J&K and the rest of India. It would require mature and reasonable negotiation by both sides to ensure success. Since the results of such agreement would preserve and protect the democratic rights of J&K residents too, there should be no reasonable opposition by Kashmir leaders.
The next step would be of course to grant equal autonomy to all the states of the Indian Union to end the special status of J&K and bring it on the same level as the rest of India. Thereby autonomy and self-rule in Kashmir would continue as the leaders of Kashmir seek. The special status of J&K would end as the BJP seeks. There would be stringent criticism from various quarters within India against such autonomy granted to all states. Fears of Balkanization would rent the air. That is why there is need to debate not only Article 370 but the prevalent political system.
It is time to acknowledge that the present political system is flawed and needs radical reform. If Kashmir has a special status why should not other states in the northeast and the south demand the same? Did not Punjab politicians adopt the Anand Sahib Resolution? Did not Tamil Nadu politicians approve the Rajamannar Report? Both proposals demanded autonomy somewhat similar to Article 370.
The present inequality breeds resentment.
The distortion in the present political arrangement becomes clear by the charges of central interference in affairs of the states on the one hand. On the other hand the ability of any one state to encroach on the foreign policy of the nation to the detriment of all other states creates equal cause for resentment. What is the solution?
As frequently pointed out in these columns it lies in honoring the Constitution in letter and spirit by creating a Presidential system of governance as existed in the written text of our original un-amended Constitution. When will politicians in India wake up to accept that no effective governance will be delivered to the people unless such systemic change is introduced? How farcical it is that our leaders solemnly continue to distort the directives of our explicit and written Constitution in the name of democratic convention, and at the same time sanction a system in which an extra-constitutional office is allowed to dictate policy to a dummy Prime Minister!
The irony is that such urgently required political reform can be achieved not by creating a new Constitution but by honoring our present Constitution! All that is required is to scrap a few Constitutional amendments, introduce a few amendments that do not alter its basic structure, and for the rest simply read the Constitution with fresh eyes to re-interpret its provisions in the light of what is clearly and unambiguously written.
Often excitement and pleasure is expressed by the perception that the current general election is being fought as a presidential contest between Mr. Narendra Modi and Mr. Rahul Gandhi. We should get rid of such silly euphoria. India does not need elections to be fought in the presidential mode. India needs a presidential system of governance. Not a hundred Narendra Modis or Rahul Gandhis will deliver adequate results without reform of the political system.
Federalism is a two way street. States have a right to demand autonomous self-rule. The Centre has the right to demand unfettered authority over subjects within its jurisdiction. We already have a system in which the President has the widest electoral mandate. We should learn to honor and utilize it. In America the states have much more autonomy than states in India. In America the President has much more power than the Prime Minister in India. Does that not contain a lesson?