Article 370 : the elephant in the room

October 26, 2017

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“There is no power in this world that can stop an idea whose time has come.” Victor Hugo’s words come in handy when we talk about ‘repealing Article 370’ ( India’s national topic of debate).

Jammu and Kashmir ( J&K) has been a troubled state since its inception into India, wherein the inception itself was troublesome. Maharaja Hari Singh of J&K acceded neither to India nor Pakistan. But his dream of an “independent hill state in the abundance of nature” was thwarted by the October 1947 invasion of the Pashtun tribals into the state, buttressed by the Pakistan army.

J&K being a majority state formed an integral part of Jinnah’s idea of a separate nation. The Maharaja, in a hapless state, approached the Indian government for military assistance. But our leaders were sagacious enough to send the troops only after the instrument of accession was signed in favour of India and hence J&K officially became a part of India.

Jinnah had accepted his initiation of aggression and had invited Nehru for talks, but internationalism soon overwhelmed his nationalism, and he approached the United Nations to solve a domestic problem, and a ceasefire ( Line of Control) was established up to the point the Indian army had pushed the invaders. Pakistan alleges that the Maharaja was coerced to sign the instrument of accession and forgets its role in causing the Maharaja to do so.

The nexus of Nehru’s ancestral state riddled in a state of aggravating violence and his idea of India where no minority would be oppressed merely on its poor numerical strength, made him promise to the maharaja that the Indian government would only make laws concerning defense, foreign affairs and communication and the maharaja would be free to make his own laws for his state. Nehru’s generosity was more out of his political ideals than realpolitik and he was cognizant of this, hence he had asked Ambedkar to codify his wish-list under the Constitution but Ambedkar declined saying ” I cannot betray my people.” Hence the task was given to Gopalaswami ayyangar , a former diwan to the maharaja and a minister without portfolio in Nehru’s cabinet. Consequently article 370 was drafted under part XXI of the constitution dealing with temporary, transitional and special provisions. It accorded the right to the state to form their own constitution and every law passed by the Union government would have to stand scrutiny in the J&K assembly .

The term of the state’s assembly shall be of 6 years. The Delhi agreement of 1952 further added provisions to the article 370 :

1: The governor would have to be appointed by the recommendation of the state government and not by the centre.

2: the state can have its own flag.

3:The residual powers with respect to state legislature lied with the assembly and not with Centre unlike vis-a-vis other states.

4: Fundamental rights enshrined in the constitution cannot be made applicable to the state .

5: Only emergency due to external aggression can be enacted in the state and for an emergency to be declared on the grounds of internal disturbance can only be enacted following the states’ request.

Autonomy up to such an extent wasn’t lucrative enough for the J&K leaders and hence art 35A was further added by a presidential order of 1954. It distinguishes permanent from non-permanent citizens of J&K and hence segregates their rights.

Only permanent citizens:

1: are allowed to own properties in the state of J&K

are allowed to operate business in the state.

2: are entitled to state services , schools and universities

The most contentious of these being the provision that denies the citizenship of the state to any woman who marries a man, not a citizen of Jammu and Kashmir. She, along with her children are debarred from holding onto any rights and privileges relating to a property. Astonishingly, if the same woman marries a man belonging to Pakistan, shall not be debarred from holding onto the citizenship and the property rights.

Experts say that this article is gender neutral as the rules concerning citizenship were framed by the Dogra rulers that procured the state from the British in 1846 under the treaty of Amritsar. A petition regarding the constitutionality of the law is pending before the supreme court as it denies a woman her rights to equality and right to personal liberty to marry anyone of her choice ,without any discussions in the parliament, which ultra vires the basic structure doctrine of the constitution.

The fissiparous nature of these articles have led to a disconnect between the people of J&K and the rest of the nation. The youth have resolved to violence in the dearth of jobs as the investing ecosystem of the state resembles that of pre-1991 India. Lack of competition in medical and educational services and businesses have further provided an impetus for the separatist leaders to exploit the idleness of the youth.

In my opinion article 370 and 35A are the rahu and ketu of the Indian laws . And the clamor that these articles have been acting as a bridge between the state of Jammu and Kashmir , any political novice can see the lamentable plight of the valley and opine that these articles have done the exactly opposite of what they were supposed to do. So is removing this article the panacea to Kashmir problem? For that we need to contemplate on the historical events that have lead to such a deplorable situation.

Long story short, Indira Gandhi lost the 1983 state elections and in her attempt to centralize power, dismissed Farooq abdullah’s popularly elected government on the pretext of misadministration vis-a-vis rising separatist sentiment in the valley and for providing havens to khalistani militants. He was replaced by his rebel brother-in-law Ghulam mohammad shah ,with the help of then governor Jagmohan. This did not go down well within the public who perceived it as an infringement upon the state’s autonomy. Hitherto the events that folded out had a political color to them . Shah did not enjoy peoples’ mandate unlike the flamboyant Farooq Abdullah. Hence he turned towards the clerics, who had lost overwhelmingly in the 1983 elections, to influence people through religious affinity. To gain their confidence further, he decided to build a mosque in the premises of an ancient Hindu temple. Now in India, you don’t mess with religious sentiments . All hell broke loose and Hindus took to streets to protest against Shahs’ decision. Shah then called upon the Muslims of the states to counter the Hindus through the slogan of ” Islam khatrey mein hai.”

Shah was dismissed in 1986 and Jagmohan started de-Islamization of Shah’s policies and started implementing nationalist polices on the people of the state. People apprehended it as a hegemony of the central government over the state’s subjects. Things took an ugly turn during the 1987 elections. Congress made another mistake by coercing Farooq Abdullah to form a coalition and the elections, though won by the coalition, were alleged to be massively rigged. This eroded the credibility of Abdullah as a mass leader . The defeated united front leaders took up arms to form a formidable front against the Centre ( Syyed salaluddin , a recently designed terrorist by the USA ,being one of them.)

The Jammu Kashmir Liberation Front killed a prominent BJP learder in front of myriad eye witnesses and no punitive action was taken against them. It was the genesis of a wave of anti-Hindu movement and thousands of Kashmiri pandits were killed, looted, their wives raped ,their houses burnt and this lead to their exodus from the state. This event gave it a completely communal picture and the divide between Muslims and Hindus assumed a pan-India status.

A situation that started with a power tussle between the Centre and the state , further inflamed by petty politics and vested interests, ended in egregious communalism . The separatist leaders and home grown militants are funded financially and militarily by the Pakistan army and the notorious ISI. And these exploit the youth of Kashmir to stone pelt the army. The army has been castigated by the amnesty international for its alleged human rights violation due to the controversial Armed Forces Special Powers Act(AFSPA) that provides overriding authority to the army . The Centre then finds itself in a Catch 22 position, i.e. to control the violence in the Kashmir by controlling its own army. Repealing AFSPA is a debate for another day.

Many critics have argued that article 370 has been eroded beyond recognition and it is completely callous now. 94 out if 97 subjects of Union list have been extended to the state. 260 out of 395 articles of the supreme court have been extended , viz. All India Services act, AIIMS act, Central Vigilance Commission act, Election Commission act , inter alia. It is the result of this erosion that the recent supreme court ruling on instant triple talaq has benefitted also to the Kashmiri women who were hitherto ruled by the Shariat law under the article 370.

The road to ending terrorism and ensuring peace in the Kashmir valley is only through a multi-faced approach involving the citizens of the state in the economic ,social and political development of the nation as a whole. The youth in J&K must be presented with ample opportunities to jobs that will instill a sense of confidence and nationhood in them and the families their jobs would help them support. Removal of article 35A will ameliorate people to people contact and help build a more cohesive society with differentiated interests under a unified nation. As PM Modi had appealed in his independence speech ” Na gaali se, na goli se, KAshmir ki samasya hal hogi galey lagane se.” I am waiting for my Kashmiri countrymen with my arms open.


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