Review of Arvind Lavakare's book: The Truth about Article 370

jul 12th

review by dr. kalyan.

Book review: The Truth about Article 370 by Arvind Lavakare (Mumbai,
Rambhau Mhalgi Prabodhini, 2005; Rs. 40).

Arvind Lavakare should be complimented for this 91-page booklet for
presenting succinctly, lucidly the political, social and economic
implications of Article 370 in the Constitution of India, that is
Bharat. The monograph is a magnificent contribution to a national
issue which has eluded a solution during the last nearly 60 years. I
would strongly recommend that this extremely well-documented book
should be read and used as a reference by all bharatiya to deliberate
upon an action plan to deal with the implications of Article 370;
those interested in purchasing a copy should email Arvind directly:
ashlava@vsnl.in

While analyzing the content of Article 370 as 'Temporary provisions
with respect to the State of Jammu and Kashmir', Arvind makes a
remarkable statement: "It is important to note that none of the above
provisions of Article 370 by itself prevents anyone outside Jammu and
Kashmir State from purchasing immovable property in that State –
perhaps the most resented aspect associated with that Article. Such
and other disconcerting restrictions flow only from the authority that
Article 370 gives to the issuance of executive orders exempting or
modifying provisions of Parliament's laws or of the Indian
Constitution in respect of Jammu & Kashmir State." (pp. 22-23).

In the context of this opinion, I would suggest that a PIL should be
taken to the Supreme Court to permit the purchase of immovable
property in J&K so that the the highest court of the land can clarify
that there is no constitutional bar on such purchase. This one single
step could help integrate J&K into mainstream Bharat. This may help in
declaring Section 4 of the Land Alienation Act, 1995 of J&K as
unconstitutional. (This section states that only permanent residents
are entitled 'to transfer any land in their name'). So, it is clear
that what restricts the acquisition of immovable property in J&K is
the untenable, unconstitutional laws of J&K state as regards
'permanent residency' in the state. There is also a provision, notes
Arvind (p. 62), "in the State Constitution's Section 140 which
stipulates 'every person who is a permanent resident of the
State…shall be entitled to be registered as a voter' for elections to
the Legislative Assembly. Thus the right to vote for the Assembly is
denied to those who are not Permanent Residents."

Arvind cites Arun Shourie approvingly (p. 57) to make the point that
J&K is the most pampered state in Bharat: "It was Arun Shourie who
first startled the common man when he said in an interview that
'percapita Central assistance to Kashmir is 14 times that to Bihar, it
is 11 times that to Tamil Nadu, it is 6 times that to even a
beleaguered State like Assam."  (The Times of India, Mumbai, Edit
page, 8 July 2000). Arvind also notes that it was only after May 1957
that the State entered into financial arrangements with the Union
Government, that brought it at part with other States in respect of
financial matters including proportionate allocation of funds.
(Justice AS Anand, The Constitution of Jammu & Kashmir – its
development and comments 1998, 3rd edn., p. 179.) Justice Anand should
have used the phrase 'disproportionate allocation of funds' to J&K,
considering that the state has been pampered by the Central
Government.

In fact, the disproportionate treatment meted out to J&K may have been
'responsible for all the talk of the 'separatists' and 'secessionists'
and 'freedom fighters' that's gone on for the last 15 years or so,'
notes Arvind (p. 70).

What would it take to abrogate Article 370 apart from 'recommendation
of the Constituent Assembly of the State'? Apart from this clause
included in Article 370, the biggest road block is provided by the
'seculars' of the country. Since 'secular' by bharatiya definition,
usage and parlance is 'communal', politicians playing homage to
'secular' are seen to be unwilling to upset the muslim majority
politicians of the dominant Kashmir valley. Isn't it naieve to expect
that the members of the Constituent Assembly of the state representing
the valley will recommend the abrogation of Article 370?

Arvind suggests a way out. He suggests that the 1) constitutionality
of Article 35A (granted to J&K State in May 1954); and 2) provisions
related to Permanent Residency in the state constitution should be
questioned in a court of law stating that the Article violates the
principle of equality which is a basic structure of the Constitution.

In a meek suggestion, he adds that J&K should be encouraged to concur
in creating separate political entities for Jammu, Ladakh and Kashmir
Pandit regions, to swear by the supremacy of the nation's
constitution. Aha, he also adds that the State must merge itself
totally with the Constitution of India.

This is how the brilliant analysis of Arvind ends offering little hope
for a political solution to the vexed issue of Article 370. He somehow
hopes that the threat of withdrawing the financial doles offered by
the Central Government may prevail upon the J&K state to merge itself
as a total entity of Bharat nation. Arvind concludes his note
recollecting Sardar Patel's statement in the context of Article 370's
future: "If we cannot have confidence in our own strength, we do not
deserve to be a nation." (V. Shankar, My Reminiscences of Sardar Patel
cited by LK Advani, The Indian Express, 17 February 1992). That Advani
recollected Patel's statement is impressive indeed in the current
state of his image-make-over.  As President of BJP he may not even
remember that the party has waffled on the issue just to get into
power. Once a politician waffles on ideology, on fundamental issues
such as the basic structure of the constitution, the road gets very,
very slippery. He or she will not know when to stop.

Why has BJP failed to convince other parties about the Article 370
being the major impediment in integrating J&K into India? Is it
because BJP is less 'secular' than the other 'secular' parties? Is it
because of the nature of the monster 'secular' in the Indian polity?
When secular is communal, BJP tries to move on to the communal
bandwagon hoping to get a few segments of the communal votebanks. This
erosion of ideology of a party which should mould itself in the
framework of nationalism which is sanatana dharma (as Aurobindo vowed
in his 1919 Uttarapara speech) has had tragic outcomes in the apathy
of the rest of the nation to a festering sore, to come to grips with
what Arvind calls in his preface, '…carcinogenic Article of the
Constitution of India.' I have no problem with health metaphors, be it
a sore, be it carcinoma of the creeping type. I have problems with the
BJP which claims itself to be a party with a difference that it agreed
to become a participant of National Democratic Alliance just to enjoy
the comforts of office, pushing Article 370 issue to the backburner.
An issue won't go away by closing one's eyes. This is precisely what
BJP did under the leadership of Vajpayee and Advani. Hoping with
Arvind, there could be light at the end of the tunnel when a new
leadership emerges which is nationalist and wouldn't rest until
Article 370 is abrogated with or without the consent of the J&K state.
After all, power flows from the barrel of the gun and the Central
exchequer or treasury.

S. Kalyanaraman
11 July 2005