We are seeing countryside celebrations following thee scrapping of Article 370, not everyone, but the majority are celebrating its removal. But do the people clapping for the revocation of Article 370 really know what the article was all about? We are seeing news circulated widely in the social media that it will decrease the instances of ‘unlawful activities’ occurring in the Valley. But has one ever questioned what are these ‘activities’ are? Has anyone heard the Kashmiris’ point of view on the removal of Article 370?
All this led me to question why only a few thinkers are opposing the move while the rest of the country is supporting it? The following points may clear some doubts.
I do not think the “Accession” of Jammu and Kashmir in the year 1947 made it a ‘complete’ part of the ‘Dominion’ of India. The “Instrument of Accession” (IoA) which was signed between Raja Hari Singh and the dominion of India in the year 1947 October 26th was signed allegedly to stop the invasion of Pakistan backed tribes in the territory of Jammu and Kashmir. Our country’s first prime minister Nehru took charge of the accession of Jammu and Kashmir state. The role played by our prime minister in the issue of J&K was widely praised in the international stand.
In the face of increasing militarisation by Pakistan, India took the Kashmir issue to the United Nations (UN) which then set up the United Nations Commission for India and Pakistan (UNCIP) which proposed mediating a resolution through a three-point action plan which included Pakistan’s de-escalation of military and India holding a plebiscite in J&K. However, Pakistan never vacated the areas it had occupied and, so, the plebiscite was not held by India. The UNCIP was, however, successful in negotiating a ceasefire between the two countries at the time.
dia In the year 1950, on January 26, the Constitution of Incame into force which made India a Republic nation. N. Gopalswamy Ayyangar, who was an Indian Civil Service officer under British India led the delegation for Kashmir negotiations in the UN in 1948 and was appointed to draft Article 370. He was part of the drafting committee of the Constitution of India. This article was important as it came to be known as the ‘bridge’ between India and Jammu and Kashmir. It allowed the central government of India to apply laws in three categories which are Defense, Foreign affairs and Communications. All other laws will be applicable only with the concurrence of the state government. It allowed acts proposed by President of India only when ratified by the constituent assembly of Jammu and Kasmir.
Article 370 provided a special constitution for Jammu and Kashmir. Article 370 was framed to be Temporary, Transitional and Special Provisions. After the Constituent Assembly of Jammu and Kashmir was formed, it had the power to amend or to remove the article 370. But the constituent assembly of Jammu and Kashmir dissolved in 1954 without taking a decision on article 370. The Supreme Court had said that Article 370 of the Constitution which provided special status to Jammu and Kashmir became permanent through years of existence and making its abrogation impossible (2018 SC order in the Kumari Vijayalaksmi Jha petition).
Much fake news is being circulated that the Indian flag is not respected in Jammu and Kashmir by its state government, which is not true. Jammu and Kashmir had their state flag but the Indian flag was respected as equal, even mentioned in the Delhi Agreement, 1952 signed between Nehru and Sheikh Abdullah. Even the Head of the state is to be respected in Jammu and Kashmir as in as the other states. For historical reasons connected with the freedom struggle in the State, the need for continuance of the State flag was recognised. In that regard, even the state of Karnataka has its own flag.
Fake news is being circulated that Supreme Court judgments, CAG, Election Commission, and other important government institutions didn’t have authority in Jammu and Kashmir. These are false statements, as per the Presidential Order of 1954 most government institutions hold jurisdiction in Jammu and Kashmir. Many argue that Jammu and Kashmir enjoy special provisions. But the erosion of article 370 happened through Presidential Orders. Forty-seven presidential orders were passed between 1956 and 1994, slowly making provisions of the Indian Constitution applicable in the state. And in the end, we are complaining about their special powers!
From the view of A.G Noorani, a prominent lawyer, all the presidential orders are void as there is no constituent assembly in Jammu and Kashmir where all the presidential orders need to be ratified. So, all the presidential orders should be canceled. “After the dissolution of the Constituent Assembly in 1956, the power of abrogation of Article 370 vanished,” he said.
There is also another important article in the constitution which the government says it provides special provisions to Jammu and Kashmir which is Article 35A. This article speaks about special ‘residents’ laws where the government of Jammu and Kashmir has the authority. The article 35A does not permit an outsider to buy land in Jammu and Kashmir. Similar laws are present in Arunachal Pradesh, Andaman and Nicobar Islands, Himachal Pradesh and in many North-Eastern states. It is to protect the demographic status of the respective state.
Another misunderstanding is that no Jammu and Kashmir women can marry a person outside the state, otherwise, they stand to will lose their state citizenship and right to own property. The Jammu and Kashmir High Court made it clear in the year 2002 that women can marry the outside person and their state citizenship will not be affected by marriage. Her right to own land will remain the same.
Finally, the passing of presidential order on 5th august 2019 unilaterally shows that the democratic mechanism has failed. The bill was introduced in the Rajya Sabha apparently without prior announcement, and the protests of opposition parties were not considered. I strongly feel discussions weren’t properly done in this situation. The most important part is that the voice of Jammu and Kashmir people was, and is, not being considered. Their leaders are not a part of the discussion. Even worse, is that they have been kept under ‘house arrest’ and later taken into the custody. Heavy number of armed forces are moved into the state to control the situation. The communications have been cut down. This situation, to me, resembles the fascist rule of Hitler in Germany.
This is not a sudden move; the government first amended the RTI to reduce its powers and then brought in the Unlawful Acts Prevention Bill(amendment) 2019 to detain ‘individuals’ in the name of law and order control. This act is, I feel, similar to the Rowlett act of British India.
George Orwell once said, “In times of deceit telling the truth is a revolutionary act.” The judiciary should intervene as it had once done when it overruled the judgment it gave in Kumari Vijayalaksmi Jha’s petition regarding Article 370. Any process of removing or changing the article 370 and article 35A should make the people of Jammu and Kashmir the final decision-makers as promised initially. Many international organisations like Amnesty International are supporting the people of Jammu and Kashmir. People should fight for their rights and should prove that democracy and the rights won’t be taken away by any government.
“The complete right of any change on Jammu and Kashmir should be given to people of that particular state as promised” these are the words of famous activist Periyar E.V.Ramasamy.
“Freedom is the recognition of necessity,” said Friedrich Engels.
Someone recently observed, “When you need a million troops and warlike siege to pass an order, then the order has already .”