An abrogation of historic error.
On August 5, 2019, when home minister Amit Shah tabled the Constitution (Application to Jammu and Kashmir) Order 2019 and stripping Jammu & Kashmir of its special status, a historic error committed around 70 years ago, has finally been thrown into the dustbin. Article 370 had been the biggest impediment to the integration of J&K state, its abrogation, now, will help common people through jobs and better allocation of central funds and will end the long political hegemony of dynasties.
In two masterly thumps, the government repealed a Temporary Provision, Article 370 by overwhelming majorities in the two Houses of Parliament through Presidential declaration. It then bifurcated the state into two union territories (UTs) under Jammu & Kashmir Reorganisation Act, 2019, one to be called Jammu & Kashmir, and another Ladakh effective from 31 October 2019. This move signals proper Modi-Shah alchemy and their determination that transforms impossible into perfectly possible and holds ample amount of guts to take legal, social, political and geopolitical risks to curb unrest that has lasted ever since the Dogra ruler, Maharaja Hari Singh, signed the instrument of accession with the Indian Union in 1947.
Although, a bench of the Supreme Court once had opined that Article 370 was a permanent provision must understand its circumstances in context with Jammu & Kashmir. J&K based political parties have constantly been misguiding the local youth by telling them that Article 370 is their protection and bridge between Kashmir and rest of India. In face the logic is baseless and their false propaganda for vested interests while protecting their kith and kin from the turbulence. In contrast, some of the self-proclaimed feminists and liberals calling the move unconstitutional without knowing the fact that the powers of the Assembly lie with Parliament in the absence of Assembly in the J&K. Therefore, scrapping of Article 370 has been in a proper democratic process. Before the passing of the Bill, it has been debated for several hours in both the Houses. Thus, the most constitutional and correct option was chosen.
Article 370 is some kind of royalty which enormously enriched the few and under its shadow; the Valley has been through the several episodes of radicalisation, 30 years of grave terrorism, ethnic cleansing and what not. The worrying part is public order and public safety. During the 2011 panchayat polls, both Jammu and the Valley witnessed massive turnout, the state government then deprived these panchayats by starving them of funds. Without enabling legislation, as demanded by the Finance Commission, the panchayats lost over a thousand crore rupees by way of funds. This reckless action prevented the strengthening of democracy and suppressed rural development in the state.
Abrogating Article 370 was a difficult decision, bound to have a violent reaction in the Valley. The government method of preventing sizeable violence by deploying force is not at all unethical; rather, it is the duty of a responsible government. The restrictions in place are quite sensitive to ground realities. As and when the situation improves, they will be eased. We simply cannot allow jihadis to have a free run to incite mob violence. Article 370 made Jammu and Kashmir autonomous but strangely it hampered its people. We have to agree with the fact that Kashmiris too must express their sentiments about these decisions without letting their protests be hijacked by violent unrest or terrorism. Friday prayers, Eid and Independence Day have passed off peacefully is a matter of great satisfaction and something to cheer for and I am sure that in due course of time, we will witness less amount of restrictions and lifting of deployed forces with reduction of inconveniences faced by all Indians in the Kashmir Valley.
Article 370 entered the draft Constitution as Article 306A by N Gopalaswami Ayyangar. Through this provision, Ayyangar had proposed that state would have special powers to be excluded from the purview of the laws that Parliament of India would make and also would have the power to make its own laws. “Why this discrimination?”, asked Maulana Hasrat Mohani, a great poet and member from United Provinces in the Constituent Assembly on October 17, 1949. Ayyangar gave an unconvincing reply, that there existed special circumstances in the state and hence the special provisions. He was challenged by members like Mohani who asked why different accessions were being treated differently. Ayyangar’s logic was bizarre. The Instrument of Accession’s relevance was limited to joining the Dominion, he argued, adding that what mattered for the Indian Republic that was going to take shape on 26 January 1950 were the decisions in the Constituent Assembly. He was no doubt clever in making this distinction between the Dominion and the Republic, but not logical.
History also witnessed that Sheikh Abdullah’s National Conference party had boycott the 1946 Jammu Kashmir Praja Sabha elections, a state legislature, refusing to accept Maharaja’s authority. While the rest of the country was fighting the British with Quit India as the mantra, Sheikh Abdullah had launched the Quit Kashmir agitation against the Maharaja. It was in him that Nehru had reposed his trust and got four members nominated to the Constituent Assembly from Jammu & Kashmir including Abdullah himself along with Mirza Afzal Baig, Maulana Masoodi and Moti Ram Baigra. It was this clique that had supported 306A when it came up for inclusion in the draft constitution.
The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the constitution in The Delhi Agreement, 1952, to further strengthen Article 370 as stipulated in Article 368. The Nehru government didn’t place it before Parliament for discussion, which is mandatory for amendments.
Article 35A defines the permanent residents of the state of Jammu and Kashmir. On examination of 35A, it not only violates the golden triangle but also Article 15 and Article 16 as well. It is the same Article which rendered the lives of Dalits settled in Jammu. They are trapped in a vicious cycle of refugee life. They are unable to get PRC (Permanent Resident Certificate), hence ineligible for any job and scavenging is the only option left with them. It also treated refugees from West Pakistan as outsiders and these people have been deprived of their rightful legal rights including rightful inheritance to land. Hence, it disallows the marginalized population of the state of their basic constitutional voting right.
Article 35A further leads to gender inequality by denying J&K women of their right to property on marrying outsiders. Ironically, such exclusionary provisions do not apply to the men marrying outside.
The Opposition’s argument that Article 370 was a link to the state’s accession to India is fallacious. The state’s accession had concluded on October 26, 1947, when Hari Singh signed the Instrument of Accession. Article 370, according to Ayyangar’s own words, took birth as a temporary provision because of the “special circumstances” in the state. The criticism by Congress is even more spacious because it is this party that has affected at least 44 amendments to this article in almost as many years.
It is, of course, the beginning of big phenomenon in the Kashmir Valley. It’s something that involves all of us and betterment for the public of Valley. The simple act of abrogation of Article 370 will lead to a floodgate of development. We will see industries, investors, job opportunities and other avenues available to the youth now in J&K too. Moreover, Article 370 had led to psychological isolation that created mental barriers. That was not just hindering development but also facilitating terrorism. The sponsors of terrorism could find isolated youth whom they indoctrinated.
There will be no pilferage from now on, corruption will be minimum and most importantly, with the empowerment of local bodies and panchayats in J&K by extending the 73rd and 74th amendments in Constitution, brought in by the Congress government [in 1992], funds will go directly to elected local representatives. The state governments at different points of time did not want that to happen in the past. They were manipulating and using the funds according to their convenience. If the fund, which is not less than Rs 10,000 crore, goes directly to local bodies, development activity is bound to get a boost. It is the step of bringing the common Kashmiri man closer to the ideas and values the rest of India has. Believe me, Kashmir is now on the path of peace.
The majestic red Chinar trees of the Valley, which has something to do with Kashmir’s literature, politics, and romance, will now find peace by bringing cheer to people whose lives have been marred by years of militancy.
Akhilesh Dhar is a 19-year old aspiring Journalist, who is keenly interested in Indian politics and foreign affairs with an interest in conflict based reportage. A couple his articles have been published on ‘Epilogue Magazine’.
At present, he is pursuing a bachelor’s degree in Journalism and Mass Communication from Dr. DY Patil International University, Pune. He did internship in the month of June with MyNation (New Delhi), assigned to him by Think India. He also did internship with Zee Business (Mumbai) in the month of July.