By P.K.Balachandran/Daily Express
Fuelled by an unprecedented parliamentary majority, the Narendra Modi Juggernaut in India is rolling on achieving its principal political objectives.
It all began with the acquisition of power over Information Commissioners both at the Central and the State (provincial) level through an amendment of the Right to Information (RTI) Act of 2005.
The amendment took away the independence of the Information Commissioners at both the Central and the State levels by doing away with their fixed term of five years and fixed conditions of service including their status and salary. These matters will now be determined by the Central government from time to time. The States have lost their powers over the RTI set up in their respective dominions.
The second act of the government was to criminalize “Instant Triple Talaq”, a system of Muslim divorce by which a husband could divorce his wife by saying/emailing/messaging “talaq” three times in quick succession.
This form of divorce, albeit very rarely used, has now been criminalized with a jail term of three years. Even though Islamic marriage is a civil contract, it has been brought under criminal law. This is a disability which is restricted to the Muslims. In no other community is divorce criminalized.
The Triple Takaq law gives no opportunity for a retraction on the part of the husband. It makes alimony compulsory, but does not address the question as to how a jailed husband will pay alimony if he belongs to the working class, a daily wage laborer or a salaried job holder.
The government then amended the Central Motor Vehicles Act which took away the States’ powers. All rules and fines are laid down by the Central Act, taking away the powers of the Regional or State level Transport Offices. There is thus no room for variations to suit local economic conditions and the peoples’ varying ability to pay the exorbitant fines.
Lastly, and most recently, the Modi government has abolished Art 370 of the constitution under which India’s only Muslim-majority State of Jammu and Kashmir (J and K) enjoyed some autonomy (at least notionally) since India got independence in 1947.
A constitutionally-backed special status was given to J and K in order to persuade it to join the Hindu-majority India at the time of the partition of India into a Hindu-majority India and a Muslim-majority Pakistan. As per the Instrument of Accession, signed by the government of India and the ruler of J and K Maharajah Hari Singh, J and K surrendered only three subjects of administration, namely Defense, External Affairs, Communication and Currency to the government of India, keeping the rest for itself.
J and K’s autonomous status was entered in the Indian constitution as Art 370 and Art 35A. Under Art 35A, which is linked to Art 370, J and K could draw a distinction between “Permanent Residents” and immigrants and give some privileges to the permanent residents or indigenous people, not available to immigrants. Permanent residents enjoyed reservation in government jobs and seats in educational institutions. Outsiders could not buy immovable property or do businesses. But with Art 370 gone, Art 35A has also gone. The people of J and K are now deprived of their special rights. The floodgates have been opened to immigrants and businessmen and property buyers from outside J and K. The communal and ethnic ration could change over time.
Furthermore, J and K has lost its status as a “State” and is now merely a Union Territory with limited powers. It will be ruled by New Delhi by and large. This is the first case in India of a State being reduced to a Union Territory. The loss of Statehood adds to the grievances as J and K is the only State to lose its Statehood in the history of independent India. It is like rubbing salt into a wound.
The Modi regime says that these measures had been taken to end the anomaly of an Indian State enjoying a Special Status and also to fight terrorism and separatism.
But the fear, expressed by the Congress and other parties, is that the abolition of Art 370 (and Art 35A which stems from it) will only further alienate the Muslims of J and K ,many of whom are fighting for Azadi or freedom. Pakistan, which has been supporting the separatist movement in J and K, will find it easier to do so now than ever before.
The government’s actions could lead to similar actions vis-à-vis other Indian States. There are eleven other States in India which enjoy Special Rights of one kind or the other. Many of the North Eastern States have privileges for indigenous populations of the kind Art 35A gave to J and K. These could also be withdrawn at will. And that could lead to alienation and unrest in these areas especially because these States had once wanted to secede from India.
Temporary or Permanent?
The Modi government argues that Art 370 was a “temporary” and “transitional” measure. But according to Prof.Faizan Mustafa, an expert in constitutional law, it was temporary only because the matter of accession was to be finally decided by a referendum. But a referendum never took place and will probably never take place.
Just because an Article of the constitution was described as “temporary” it does not mean that it cannot not exist for an indefinite period, Prof .Mustafa argues. He points out that reservations for the Schedules Castes and tribal communities were described as temporary as was the use of English as an official language in addition to Hindi. But both temporary provisions have continued to exist with no one challenging them.
To extend a central law to Jammu and Kashmir on the subjects included in the Instrument of Accession, “consultation” or “concurrence” of the J and K government was enjoined. But Art 370 was abolished without the consulting the State. With the State Assembly dissolved, it was the Governor, who is representative of the Center, who gave the assent to the abolition.
The abolition of Art 370 is riddled with unconstitutionalities and unconstitutional assumptions, which are likely to be challenged in the Supreme Court.