By Sheikh Qayoom, Jammu, Dec 5 IANS | 8 months ago

Bharatiya Janata Party (BJP) prime ministerial candidate Narendra Modi's statement seeking a debate on Article 370 of the constitution giving special status to Jammu and Kashmir has stirred a hornet's nest, but it transpires he might actually have been referring to the state's property rights.


Addressing a largely attended public rally here on Sunday, Modi said it needs to be debated whether Article 370 has actually benefited the people of the state.

Modi also said because of the special status, women in the state did not have the same rights as men. In his attack on Chief Minister Omar Abdullah, Modi asked whether he and his sister Sara, who is married to Sachin Pilot, a junior minister at the centre, enjoyed the same rights.

Abdullah responded by saying Modi had either been deliberately lying or was ill-informed about both Article 370 and women's property rights in Jammu and Kashmir.

A barrage of statements have since been issued criticizing Modi on his reference to Article 370.

State Congress chief Saif-ud-Din Soz challenged Modi to a debate on Article 370 while ruling National Conference provincial president Devender Singh Rana said the provision defined the constitutional relationship between Jammu and Kashmir and the rest of the country.

Mehbooba Mufti of the opposition Peoples Democratic Party (PDP) said abrogation of Article 370 would create constitutional complications that could open up a Pandora's Box in centre-state relations.

Separatist leaders have dismissed the intended debate, saying discussions on Article 370 mean debating Kashmir's future within the ambit of the Indian constitution while they seek a resolution of the issue beyond the four walls of the statute.

While Article 370 was added to the constitution to give special status to India's only Muslim majority state that had acceded in 1947, permanent residency rules were framed by the state's erstwhile Dogra maharaja in 1927. Under an executive order passed by the state government after 1947, a Kashmiri woman who married a non-Kashmiri would lose her inheritance rights as also those relating to buying and owing property.

This order was challenged in the high court which set it aside, but ruled it could be reinstated by the state legislature.

Although the state assembly passed a bill barring buying and selling of property by a Kashmiri woman married to a non-Kashmiri, the legislative council could not pass it for lack of quorum.

"Thus, there is nothing that prevents a woman from inheriting, buying or selling property in the state", Muzaffar Hussain Beigh, an eminent lawyer and former deputy chief minister, told IANS.

"What is beyond the powers of the state legislature is that Article 370 was extended to the state by parliament and ratified by Kashmir's Constituent Assembly.

"The Constituent Assembly no longer exists. In layman's terms, this means that even if parliament were to revoke the Article, this would have to be ratified by the state's constituent assembly which no longer exists.

"Thus any debate or talk of repeal of Article 370 is a political debate with little constitutional relevance," lawyer Suhail Ahmad told IANS.

Interestingly, Jammu and Kashmir is the country's only state with a constitution of its own in addition to the Indian constitution, both of which are concomitantly applicable. Besides its own constitution, Kashmir also has a state flag and, till 1963, the chief minister was called Wazir-e-Azam (prime minister) and the governor as Sadr-e-Riyasat (head of state).

While women's property rights can be amended or modified by the state legislature, legal experts argue the extension of Article 370 to Kashmir is a fate accompli that has to be there whether one likes it or not.

Considering that this is not the first time Modi has stumbled - his classic being substituting Jana Sangh founder Shyama Prasad Mukherjee with Gujarati freedom fighter Shyamji Krishna Varma, would he, in his future election campaigns, show a better understanding of the difference between Article 370 and women's property rights? This would also determine how seriously people here take him, say political observers here.

(Sheikh Qayoom can be contacted at sheikh.abdul@ians.in)

(Posted on 05-12-2013)