In defence of the special status for Jammu and Kashmir during the Indian Constituent Assembly proceedings, N. Gopalaswamy Ayyangar had pointed out that the condition of the State was “not ripe for full integration” and reasoned that a significant degree of autonomy had to be given within the constitutional structure of the Indian Union. He said, “The effect of this Article is that the Jammu and Kashmir State which is now a part of India, will be a unit of the future federal Republic of India.” 1
It is also a relevant piece of history that Article 370 (then Article 306A) was passed unanimously with only one dissenter. He was interestingly not the Hindu right-wing ideologue, Shyama Prasad Mukherjee, but Maulana Hasrat Mohani, founder of Communist Party of India. The latter’s objection was not to the grant of special status to Kashmir but he was seeking similar models of autonomy for all other States of India in pursuance of his concept of federalism. 2
According to the social contract that the people of Jammu and Kashmir had with India, the State's accession was contingent on a constitutionally enshrined recognition of its political identity.
The abrogation of Article 370, re-orientation of Jammu and Kashmir State, its division and creation of two separate Union Territories on August 5, 2019, thus brings into focus the legality of such a move, as has been argued by constitutional jurists. The manner in which this has been done raises questions of constitutional, moral and democratic propriety. The reasons being peddled in defence of this drastic step, which only spells disaster, defy any logic. The insensitivity to the political fragility of the State and the likely multiple repercussions of this move have pushed the entire sub-continent into a danger zone.
Is it constitutionally legal?
In an interview to the Caravan , senior advocate Rajeev Dhavan said: “This order seeks to supersede a constitution—Jammu and Kashmir has a constitution devised by a constituent assembly. Therefore, Article 370 came into being [in 1950] while Jammu and Kashmir had not established its constitution. Article 370 was transitional only to the extent, and until, Jammu and Kashmir constitution came into place……… Jammu and Kashmir constitution [formed] by an independent Constituent Assembly is a fact—it is a legal fact, a spatial fact and a temporal fact. You cannot abolish it, as simple as that—it does not grow out of the [The presidential] order.” 3
Similar view has been shared by legal expert, A.G. Noorani, who has authored a book on Article 370, among several other books on Kashmir: “The Indian government’s power to abrogate Article 370 had vanished after the dissolution of Kashmir’s Constituent Assembly in 1956. Article 370 was meant to express the identity of Jammu and Kashmir, because of the special circumstances, in which it acceded to India. And that identity is sought to be destroyed. It got a special status because of the historical circumstances,” he explained in an interview with Anadalu Agency. 4
Emphasising that the Indian Parliament was not empowered to either amend or delete the provision, Noorani said, “For this, the approval of the J&K State’s Constituent Assembly was necessary. Any concurrence of the State government is always subject to the elected assembly’s final approval. When the State is under governor’s rule or president’s rule, neither can accord that concurrence.”
Among many worrisome flaws, one is that the government has arrogated the right of the J&K Assembly to Parliament, where the BJP enjoys absolute majority.
What the BJP government did by bringing in a Presidential Order, a resolution and a Bill to reorganise the State in Parliament on August 5 is to invoke modification powers under Article 370 to substitute the Constituent Assembly of the State with the Legislative Assembly of the State, thereby removing the constitutional requirement to convene a newly elected Constituent Assembly to determine the future of Article 370. The more worrisome flaw, brought in by stealth, is that in view of dissolution of the Legislative Assembly in Jammu and Kashmir which is under President’s rule, the government has arrogated the right of the Assembly to Parliament, where the BJP enjoys absolute majority.
Undemocratic and humiliating
Effectively, the people of Jammu and Kashmir have not been consulted about their future by circumventing the constitutional provisions. Before the Union Home Minister moved the legislation, 13 million people whose fate Parliament was deciding were virtually put under a siege. The Constituent Assembly of Jammu and Kashmir does not exist. The Legislative Assembly is dissolved. No consultations were ever held with any of the stake-holders turning this exercise into something that invokes a sense of virtual day-light thievery and humiliation among its citizens. Even in Jammu’s Hindu-majority districts where many have openly welcomed the move, the other narrative remains silent, partly due to fear and partly due to the regional and nationalist obligation of countering the Kashmir narrative with an ultra-nationalistic discourse. Not only have the people’s special status rights been snatched, they have been divided and granted a status that is much lower than the status of a fully integrated State in this forced integration process. Under the new system which converts the erstwhile State into two different Union Territories, New Delhi can fully shed the pretense of imposing puppet governments on Jammu and Kashmir.
The powers of the people will be further diluted with no assembly in far flung and geographically cut-off Ladakh and an assembly with limited powers in Jammu and Kashmir. Ladakh would be robbed of its Autonomous Hill Development Council and powers of the local administration would be further curtailed. The practicability of managing the J&K State, with its huge area, its complexity, its socio-political diversity and its fragility, under a forced arrangement of one centralised authority remains to be seen.
Many parts of Jammu and Kashmir continue to be under a siege. Section 144 continues to be imposed on most parts of the State and an unannounced curfew remains in place. Internet, mobile phones and even landline phones are banned in the Kashmir Valley and the four districts of Jammu – Rajouri, Poonch, Doda and Kishtwar. In the rest of the State, internet connectivity remains limited and weak. There is a virtual information blockade.
That three former Chief ministers are detained is an indication of the unprecedented curbs that the people of the Valley are facing.
Journalists are not allowed to operate though since August 9, some national media persons and foreign journalists have been given limited curfew passes. Some reports, especially by the international media, have pointed to angry protests and stone pelting and pellet guns being used by the forces to combat the protests. The Indian government which aggressively countered these claims has since half-heartedly admitted to them . Massive arrests have been made in the Valley. According to different reports, the arrested include social activists, traders and mainstream politicians some of whom have been shifted to jails outside the State. There is no means of finding out the number of people being detained, arrested or put under house arrest. Two former Chief Ministers of the State, Mehbooba Mufti and Omar Abdullah, are under arrest. Another former Chief Minister, Farooq Abdullah, has been put under house arrest. That three former Chief ministers are detained is an indication of the unprecedented curbs that the people of the Valley are today facing. There is no way of finding out what is happening in the far flung and backward districts of the border areas of Poonch and Rajouri or the communally sensitive Chenab Valley region, comprising Doda and Kishtwar districts, other than to rely on sketchy official versions. Even in Jammu city and the Hindu majority districts of the region, dissenting political voices are being silenced by means of house arrests and detention
Incredibly, the brutal repression of the people of J&K has happened in the name of equality and integration. Even the modicum of civil liberties available to residents in recent years has been crushed.
Countering the claims of benefits
On August 8, 2019, Prime Minister Narendra Modi made a televised address to the nation on the changed orientation of J&K which, in a supreme irony, couldn’t be heard in the locked down valley. On the other hand, the message has had a massive resonance among the Hindu masses outside the now bifurcated State. And yet, the speech revealed a poor understanding of the State’s history, geography, society, conflict and complexity. Modi’s address to the nation was packed with ambiguities and misinformation.
How beneficial can any process of integration be when it starts with a siege and seeks to deprive citizens of their fundamental rights?
Modi started with the contention that by slicing J&K and turning it into two Union Territories, the residents of the erstwhile State would now enjoy every right that they had earlier been deprived of under the special status of the State. The remark carries a distinct ring of hypocrisy to it. The manner in which a blanket curfew has been imposed on most parts of J&K, enveloping it into a ghoul-like silence, and the unprecedented restrictions placed on movement, communication and all political activity have completely shredded the concept of civil liberties and fundamental rights. In this context, any talk of equal rights cannot but be a cruel joke. Modi spoke about selling a dream to the people after locking them up with no communication links, no television access to watch his address. The question of whether they want that dream aside, how beneficial can any process of integration be when it starts with a siege under military jackboots and seeks to deprive citizens of basic fundamental rights essential to their physical and mental wellbeing. Even under the worst strife situations Kashmiris enjoyed a measure of freedom and civil liberties. And certainly the State remained as a single undivided entity.
The spirit of any progressive and liberal democracy lies in its ability to respect diversity and differentness of its people. History bears testimony to the fact that countries have disintegrated whenever ruthless states have imposed forcible uniformity in the name of equality. The erstwhile USSR and Eastern Europe are cases in point. In the 1960s, in the face of stiff opposition from Tamilians, the Indian government had to roll back its obsession with imposing the Hindi language in the South. Such experiments have always failed across the world. That is why many autonomous models within different sovereign states exist across the world. Even in India, there are many other States and regions that enjoy special laws.
Terrorism and Article 370
To link terrorism to Article 370 is both devious delusional unless the special laws for the State under Article 370 were actually mandating terrorism or legalising it. Terrorism is not an offshoot of J&K’s special status but stems from the alienation and suppressed aspirations that are 70 years old. Insurgency began in 1989 after decades of betrayal, imposed puppet governments, erosion of the State’s autonomy and manipulative politicsby the Centre. The last straw was the infamous rigging of the 1987 Legislative Assembly elections. The maximum damage was done to Article 370 in the early 1960s, reducing it to a hollow shell. Such severe tampering with of the State’s special status led to restlessness in the border districts of Rajouri-Poonch culminating in Pakistan’s misadventure of training and aiding armed guerillas in an operation codenamed ‘Operation Gibraltar’. Repression, disillusionment and mistrust of New Delhi have remained the major causes of terrorism.
Terrorism is fought with sound intelligence inputs and employment of effective military strategy, not by removing a historically derived special status and certainly not by the grant of Union Territory status. By that logic Delhi should have been free of crime before it became a quasi- State. Delhi’s crime rate was high when it was a Union Territory and continues to be so under a quasi-State status.
The anticipation that along with terrorism, the unrest and alienation of the Valley will also disappear is based on the false assumption that terrorism is solely linked to the proxy-war by Pakistan, a theory that blurs the distinction between gun-totting insurgents, stone pelters, separatist politicians, and now even the mainstream politicians. This notion skirts the distressing conditions that have been locally created for years through political manipulations, rigged election, erosion of autonomy and human rights violations. The effective removal of Article 370 has turned a festering problem into an existential crisis in Kashmir. With all its military apparatus and prolonged lockout, even if New Delhi manages to suppress the Kashmiris or push them into fatigue mode, the calm may only be momentary.
Besides, the Central moves warn of a more hostile climate between India and Pakistan. They also enhance the possibility of Pakistan seizing the opportunity to push in jehadi groups. The existing climate of anger within the Valley was already pushing young men, many mesmerised by the ISIS ideology, to pick up guns. Till now the youth were held back by a lack of money and arms and ammunitions. That may no longer be the case, depending on the developments in Afghanistan, the peace talks, US-Pakistan partnership and a probable take over by Taliban. In an article in The Citizen , former Indian diplomat, M.K. Bhadrakumar, warned of a possible spill-over of militancy into Kashmir. He wrote, “Even if Taliban doesn’t change course to overtly become part of the global jihadi movement, its triumphal victory over a superpower itself creates an aura around it that will radiate energy far beyond Afghanistan’s borders. Evidently, India has a lot to worry about if the Islamist militancy radiating from Afghanistan spreads to the Kashmir region.” 5
Enhancing this dangerous possibility is the probability of the nullified Article 370 re-opening the wounds of Muslims in the border districts of Rajouri and Poonch . It must be remembered that the Muslim population here had risen in rebellion against Jammu and Kashmir’s last monarch in 1947 and later raised a revolt, backed by Pakistan’s army and guerillas, which led to the Indo-Pak war of 1965. What followed was a brutal phase of repression in the two districts.
Myth of ending corruption
The BJP Government’s rationale that its move in J&K will help counter corruption is based on a delusional fantasy. Though J&K has a reputation for being notoriously corrupt, it is not the only State in the country where corruption is rampant. To make sweeping comments about Kashmiri politicians while ignoring allegations of wrong-doing by Jammu-based politicians, including BJP ministers who held power for almost four years, smacks of a racist bias. The BJP has been obsessively condemning the two political dynasties of Abdullahs and Muftis as corrupt as if the mandate to rule the country has given the party the legitimacy to brand anyone corrupt without the due process of law. While it is nobody’s case that the Abdullahs, Muftis or anybody else is above board, there exists a legal justice system in the country (which also existed in the erstwhile State of Jammu and Kashmir under Article 370) which allows corruption charges to be pressed against politicians and others but with evidence followed by trials in court. However, a perception is being created that every Kashmir-based politician is sunk in the morass of corruption.
To be fair to Kashmir’s mainstream politicians, despite stiff public opposition from time to time and a troubled history of 70 years, it is they who have managed to keep aloft the Indian tricolour in Kashmir. The Abdullahs who are being savagely tarnished today are scions of Sheikh Mohd. Abdullah, the tallest of Kashmiri leaders. To him goes a fair amount of credit that J&K became a part of India and has remained so till date. In October 1947, when raiders from Pakistan began pouring into Jammu and Kashmir, he prepared his cadre comprising people of all religions to combat them with the slogan “ Hamlawar khabardar, hum Kashmiri hain taiyyar .” Kashmir remained the sole oasis of peace during the communal holocaust of 1947 in the wake of partition.
Goaded by a parochial mindset, the BJP, however, wants to mislead the nation with its manufactured theory of ‘all Kashmiri politicians are corrupt’.
Benefits of special status
Article 370 is being projected as the mother of all ills, including a perceived lack of opportunity and development in the state. In truth, Article 370 has ensured a much more equitable pattern of social and economic growth in the state as compared to the rest of the country. Lacunae notwithstanding, there are several aspects of the State’s special laws that rest of the country should look up to and emulate. Jammu and Kashmir’s Land Reforms Act of 1950s with its emphasis on land to the tillers empowered peasants including the socially oppressed classes and gave them a sense of dignity. This has been one of the few tates in the country where nobody dies of hunger. It has in place a Reservation Act 6 that provides for quotas in educational institutions and jobs for the Schedule Castes, Schedule Tribes, residents of the Line of Control areas, backward areas etc. Women enjoy 50 percent reservation in professional colleges. Education has been free since the 1950s in school and college and in government institutions.
Lacunae notwithstanding, there are several aspects of the State’s special laws that rest of the country should look up to and emulate.
The Prime Minister’s contention, in his address to the nation, that the Minimum Wages Act does not apply to Jammu and Kashmir is only half true. The wages paid to workers in the State are higher in J&K compared to rest of the country which is why the State has been one of a favourite destination for migratory labour who have also benefited from the State’s free education schemes.
It is in place to mention here that the move to scrap J&K’s special status with all its consequences has rendered this working class virtually jobless and penniless. According to news reports, the new developments have forced tens of thousands of stranded labourers to flee the Valley via Jammu to their respective States. Many of them have returned home empty-handed as employers have been unable to pay their dues due to the ongoing situation of siege.
Modi also spoke of denial of permanent residentship to refugees from West Pakistan and safai karamcharis. The sufferings of these two classes are true, though he was probably a little misinformed about the case of the safai karamcharis. It is only about 200-300 families of safai karamcharis that do not enjoy this privilege. They were brought in from neighbouring Punjab by the State government in 1956-57 on the promise of permanently settling them here. This was in a situation where the local safai karamcharis were on a prolonged strike. Since then, they have been doomed to a life of uncertainty, and in desperation many of them have taken to manual scavenging, an inhuman practice that is rampant across the country but has escaped the notice of the Prime Pinister. The case of the safai karamacharis and the West Pakistan refugees waiting for due entitlements is valid but could have been easily resolved with minimal amendments to Jammu and Kashmir’s special laws to accommodate them and should have been done a long time back.
Question of gender parity
It has often been argued by proponents of abrogation of Article 370 that the permanent residentship law under it is discriminatory to women. The argument is built on distortions and exaggerations. The original State subject law that came under the reign of Jammu and Kashmir’s last monarch in 1927 was silent about the rights of the women. The 1954 Presidential Order which brought in Article 35A as a clarificatory provision to define the permanent resident is equally silent about women except for a mention of widows of State subjects retaining the right. The ambiguity on the question of women State subjects marrying outside the State arose in 1967 when the then Revenue Minister in J&K’s cabinet, Trilochan Dutt, issued an order to affix the stamp ‘valid till marriage’ on the State subject certificates of women. In subsequent years, several women challenged this in the Supreme Court which clubbed the petitions and sent them back to the Jammu and Kashmir legislature for suitable action. In 2003, the J&K Government brought in a Bill disqualifying women marrying outside the State from permanent residentship rights. The bill was hurriedly and unanimously passed in the Assembly but later collapsed in the Upper House following stiff resistance from women’s groups. Subsequently, a House Committee was formed to draft rules on the matter to ensure that the fundamental rights of the women are not violated. The obnoxious stamp ‘valid till marriage’ on the State subject certificates of women has since been done away with. Women marrying outside the State unquestionably enjoy equal rights of citizenship. The law, however, is silent on whether these rights can be transferred to the children of such women. This lacunae, again, could have been easily addressed with suitable amendments within the framework of the Jammu and Kashmir constitution.
The component of gender parity in inheritance laws in Jammu and Kashmir predates the Indian inheritance laws with respect to gender. The J&K Succession (Property Protection) Act on division of property was enacted in 1920 giving equal rights to women in ancestral property while the Hindu Succession Act in India was enacted in 1955 in the post-independence period. Equal share in property was granted by the Supreme Court of India in 2019.
Myth of development
A hill State like Jammu and Kashmir with its rich diversity requires a development model different from what the Prime Minister envisions which, to state blandly, appears to be based more on crass capitalistic greed. The latter will have a huge socio-economic and environmental impact which would be disastrous for the State. The State’s development and economic growth story has not been very promising but it is still consistent with the average national growth rate. J&K’s rich potential has,not been fully tapped but the State’s special status has never been a road-block.
Development of the State and its economic independence have suffered both in a situation of conflict and due to the manipulative controls of New Delhi, leading to things like unfair power sharing agreements, an issue that successive governments have taken up with the Centre for years. One of the components of Modi's promise was technology and promoting digitisation. Ironically, it came at a time when the tele-communication links have been barred and banned, as they have been in times of crisis, but though this time with far greater intensity. The absence or irregularity of such technology has not been due to the special status of the state but due to New Delhi distrusting the people of Jammu and Kashmir, particularly those resident in the Valley.
Within the framework of the special status, several big business houses had already been investing in various industries and commercial ventures in Jammu and Kashmir by purchasing land on lease (which may extend up to a 100 years and can be renewed) or in partnership with locals. The Chenab textile mills set up in Kathua has offered employment to 29,000 people including locals, all employed on a contractual basis despite court directives to the company to extend all benefits to them under the J&K labour laws which are far more favourable for the workers than the national level labour laws. Some business ventures have provided jobs to locals but such employment avenues have not come without imposing an additional cost on the state. The Taj Vivanta hotel in Srinagar overlooking the picturesque Dal Lake was built by flattening a hill and felling the green forest belt. When access to land for big business lobbies becomes unrestricted, there is no telling the extent to which the verdant hills and lush green meadows will be denuded to build concrete jungles.
In recent years, forcible acquisition of land under the J&K Land Acquisition Act in lieu of compensation that is usually a pittance or delayed for highway, railway projects and hydro-electric projects has led to some resentment among the affected population. Peer Ghulam Nabi Suhail, writing about the peasant struggles against such land acquisitions particularly in the case of hydro-electric projects, says, “mainstream economists and scholars view in favour of land acquisition for development is that capital would bring ‘development’ is misleading. It is important here to question this perspective of looking at only the economic dimensions of land, while ignoring the indigenous people’s right to land and right to move”. 7
Already, the power projects projected as the central piece of development in J&K have remained contested. Jammu and Kashmir has been a loser as part of the Indus Water Treaty which was finalised and signed between India and Pakistan without compensation to the State. It is also contended by various political and social groups in Kashmir that the power projects have yielded minimal power supply to the state and a major share is taken by the National Hydroelectric Power Corporation (HPC) through unfair power-sharing agreements. Many see the NHPC as an exploiter of the Valley’s water resources.
Such models of development are not always welcomed by the local population and in fact could even add to their sense of betrayal. Besides, the deleterious impact of such economic models on J&K’s fragile ecology is a forgone conclusion.
Does J&K really need the development dream that is being sold to its people? Former State Finance Minister and an economist, Haseeb Drabu, uses statistical data to demonstrate that “the people of J&K are much better-off than those in the rest of the country. The number of poor is low, they have land and other income generating assets, they are much less indebted, very few work as agricultural labourers, and most earn their own livelihood through self-employment.” 8
Socio-political implications
Gopalaswami Ayyangar who batted for a special status for Jammu and Kashmir had warned in the Constituent Assembly that “time was not ripe for full integration of Jammu and Kashmir.” Back then, the alienation of Kashmiris with New Delhi was minimal. In the following years, anger has spiralled, and today any emotional bridge has been fully dismantled and the trust deficit has become unbridgeable. While the timing of the move has pushed the State into a danger zone, it might not be long before the fallout of the undemocratic manner adopted in J&K is felt across India, portending damage to the country’s democracy as a whole. Jammu and Kashmir sits on the threshold of heightened tensions between India and Pakistan and the vulnerability of communal polarisation.
The move has pushed the State into a danger zone, it might not be long before the fallout of this undemocratic act is felt across India.
The tensions between jubilant Leh and disappointed Kargil have begun to surface. Once the siege on the Muslim dominated hill districts of Jammu region is lifted, ideas of Balkanisation of Jammu and Kashmir may emerge and it may become difficult to tackle it. Besides, the threat of demographic change that Kashmiris and other Muslims of the State have always dreaded is now real. Kashmir is bracing itself to be the next West Bank of the world. As the new and modified Jammu and Kashmir begins to take shape, newer conflicts over land-use, jobs, admissions to educational institutions and commerce may also enter the landscape if the original residents of the State find it difficult to compete with the influx of the more prosperous outsiders The BJP government has virtually stirred a hornet’s nest.
In deciding to conduct an entirely misconceived political surgery on the State, the Centre appears to have allowed the paranoia around Jammu and Kashmir’s Muslim majority status to take precedence over pragmatism and foresight.
[ Anuradha Bhasin Jamwal is a journalist with three decades of experience in covering Jammu and Kashmir, with special focus on border issues, Kashmir conflict, and human rights. She is Executive Editor, Kashmir Times, the oldest English daily in Jammu and Kashmir and known for its courageous and independent journalism. She has also accomplished several research projects on media reportage, conflict, human rights, and gender and contributes regularly to several newspapers, magazines, periodicals and anthologies. She is also a peace activist. She can be contacted at [email protected] ]
References:
[All URLs were last accessed on August 13, 2019]
1. EPW Engage . 2019. Article 370: A Short History of Kashmir’s Accession to India. Return To text.
2. In an interview with Krishan Dev Sethi, one of the members of the Jammu and Kashmir constituent assembly, who was also witness to the debates on Article 306A. Return To text.
3. John, A. 2019. Interview: " Obviating the framework of Article 370 is intentionally mala fide: Senior advocate Rajeev Dhavan ", The Caravan , August 9. [https://caravanmagazine.in/law/obviating-the-framework-of-article-370-is-intentionally-mala-fide-senior-advocate-rajeev-dhavan]. Return To text.
4. Yeni Şafak . 2019. " India’s move sans Kashmir assembly’s say ‘illegal’: Expert ", August 9. [https://www.yenisafak.com/en/world/indias-move-sans-kashmir-assemblys-say-illegal-expert-3497738]. Return To text.
5. BHADRAKUMAR, M.K. 2019. " Taliban’s Unprecedented Statement on Kashmir Merits Serious Attention ", The Citizen , August 9. [https://www.thecitizen.in/index.php/en/NewsDetail/index/6/17382/Talibans-Unprecedented-Statement-on-Kashmir-Merits-Serious-]. Return To text.
6. LatestLaws.com. " Jammu and Kashmir Reservation Act, 2004 ". [https://www.latestlaws.com/bare-acts/state-acts-rules/jammu-kashmir-state-laws/jammu-kashmir-reservation-act-2004/]. Return To text.
7. Suhail. P.G.N. 2018. "Pieces of Earth: The Politics of Land-grabbing in Kashmir", Oxford University Press, New Delhi. Return To text.
8. Drabu, H.A. 2019. " Was special status a development dampener in J&K? ", Live Mint , August 8. [https://www.livemint.com/opinion/columns/opinion-was-special-status-a-development-dampener-in-j-k-1565248797810.html]. Return To text.
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