Tamil version of this article titled “அரசியல்சாசன 370 மற்றும் 35A பிரிவுகளை ரத்து செய்த சகாப்தம் – மோடி, அமித் ஷா சாதிக்க கடந்து வந்த பாதை ஒரு பார்வை!” can be read at Kathir News tamil news website.
In what can be termed as a landmark decision, the Narendra Modi led BJP govt has finally scrapped Article 370 and Article 35A which gave the state of Jammu & Kashmir a greater autonomy. The announcement came on the floor of the Rajya Sabha on 5thof August, with Union Home Minister Amit Shah announcing that the Union government has decided to repeal Article 370 & Article 35A. Furthermore Amit Shah also added that the government has decided to bifurcate the state into two Union Territories –Jammu and Kashmir, which will have a legislature, and Ladakh, which will be without a legislature.
As expected this caused a huge uproar on the floor of the Rajya Sabha and the Lok Sabha with the Congress unsurprisingly leading the charge. That being said, the bill was successfully passed in the Rajya Sabha with 125 for the motion and 61 against the motion and in the Lok Sabha the very next day with 370 for the motion and 70 against.
The abrogation of Article 370 has always been a topic of a never ending debate, not only because of the opposition it faces but also because of the intangible legal and constitutional aspects of it. So what were the reasons that the repealing of Article 370 was considered to be a futile exercise? And how did the Modi-Amit Shah duo get it done?
To begin with it was interesting to see that the Government didn’t take the traditional route of amending the Constitution as provided under the Article 368(Amendment through Parliament). Instead, ironically enough a part of the Article 370 itself was used to bring it down. Article 370 has two main clauses, the first one being Art 370(1), which states that the Government of Jammu and Kashmir will tell the President which of the laws that the Union makes would be applicable to the state, and only those laws would be applicable to Jammu and Kashmir. The Second Art 370(3), which states that the Constituent Assembly of Jammu and Kashmir can advise the President of India to effectively abrogate Article 370.
On the 5th of August, Modi Government published a Presidential Order using Article 370(1), stating that the entirety of the Union Constitution would now be applicable to the state of Jammu and Kashmir, this effectively removed the special status for the state. As the next step in terminating Article 370, the Government planned to make use of Article 370(3), but it could only be done invoking the Constituent Assembly of Kashmir, which was dissolved way back in 1957. This had let to the Supreme Court ruling on multiple occasions that Article 370 would now be considered to be a permanent part of the Indian Constitution since the only body that could have abrogated it has been dissolved without doing so. This made it close to impossible to overrule the temporary Article 370, however this was countered by the Presidential modification of Article 367 using the powers granted through Article 370(1) which gives him the right to modify any clause in Article 370. Now by the issue of a Presidential Order a new sub-clause (4)(d) was interjected into Article 367, which states that the words “Constituent Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”. Thus by doing so the Government solved the First part of the Puzzle, however the Legislative Assembly signifies the State Government. As we know, the State Government does not exist in Jammu and Kashmir and it is under Governor’s rule, but the interpretation of the word State Government also includes a Government run by the Governor, thereupon solving the second part of the puzzle. Now using the Governor’s order, the President was directed to invoke Article 370(3), thereby granting the President the right to abrogate Article 370 on the whole.
Now that we have answered the How, it is time to answer the next question, Why? Why was there a reason to abrogate Article 370 and why the need to do so now? To understand the enormity of this decision and the ripples that it is set to make one needs to go back in time and analyse the history of Jammu and Kashmir and the implications of the existence of Article 370 and Article 35A.
To begin with, let us address the elephant in the room, is it true that Jammu & Kashmir was considered to be a disputed state? The simple answer to this is, No. After independence from the British, it is true that Kashmir chose to remain an Independent State, however this changed when Maharaja Hari Singh and the people of Jammu and Kashmir were on the verge of being annihilated by the Pashtun Tribesman from Pakistan backed by Pakistan Army. Pakistan who have always been known for their devious ways waged a Proxy war using the Pashtun Tribes as pawns in their attempt to annex the state and gain control of Jammu and Kashmir. This forced the hand of Maharaja Hari Singh, who on the 26 October of 1947 signed an unconditional and irrevocable Instrument of Accession to the Dominion of India and thereby had accepted Jammu & Kashmir to be an integral part of India. It is interesting to note, that the “Instrument of Accession” signed by Maharaja Hari Singh was no different from the same Instrument of Accession signed by 562 princely states, meaning there was no special preconditioned provisions agreed upon during Jammu & Kashmir’s accession to India. In other words, Jammu & Kashmir came into the fold of India with no prerequisite conditions, and one doesn’t have to look farther than the Part-II of the Jammu and Kashmir Constitution which states that “The State of Jammu and Kashmir is and shall be an integral part of the Union of India”.
In reality, article 370 was only suggested by Sheikh Abdullah in 1949 on the basis that Kashmir being a Muslim Majority state needed time to adjust. This by logic annuls the argument that J&K came into fold riding on the condition of Article 370. Furthermore, Article 35A, which is the major cause of the controversy that surrounds 370, came only into existence in 1954.
Now that out of the way, lets take a closer look at Article 370 and 35A and their impacts on Jammu and Kashmir. The Article 370 comes under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions” for the state of Jammu & Kashmir. Here, the words Temporary and Transitional are to be noted, the indication being the Act was brought to be conditional and of limited validity. That being said, what gave real teeth to Article 370 was the inclusion of Article 35A. The Article 35A empowered Jammu & Kashmir’s legislature to define the state’s ‘permanent residents’, and their special rights and privileges. The real complications started to arise when the State of Jammu & Kashmir wielded Article 35A as an ammunition to abuse the non-permanent residents of Jammu & Kashmir and treat them as second class citizens. The Article 35A ensured that non-permanent residents would not be able to buy immovable property in Jammu & Kashmir and are were not eligible for employment by the state government. Also they were denied the right to contest or vote in local body or Assembly elections, or avail scholarships and other grants offered by the state government to its permanent residents. The Article 370 stated that the Jammu & Kashmir’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to residents of other Indian states. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.
The truth of the matter is that Article 370 was brought into effect on the pretense that it was for the development of the people of Jammu & Kashmir and to bring about a sense of stability and economic growth to the people of the valley. However ironically, the factual observations on the happenings of the state make it evident that the existential crisis that the Kashmiris face are actually on account of the existence of Article 35A and 370A. To understand the impact of Article 370 one needs to dissect the factions of society whose livelihood have been held hostage by this law.
To begin with, the women of Kashmir are the ones who are most affected, for they live in a truly autocratic society. For instance, if a woman belonging to Jammu and Kashmir marries a man from outside the state, she along with her children loses all her rights in the state, which means that once she marries a Non-Resident, she and her children not only lose their privilege to own land inside Kashmir but also lose their rights to vote in the state or to hold any Government jobs or be valid for scholarships . Ironically, if any Kashmiri woman marries a Pakistani, not only will she be entitled to have dual citizenship of Jammu & Kashmir and Pakistan, but the Pakistani man immediately becomes a Kashmiri Citizen and by definition, an Indian Citizen. This obviously raises a red flag, and brings up the question as to how many Pakistani terrorists have entered India using this loop hole. The simple fact that any legislative law passed through the Rajya Sabha and Lok Sabha still need to be passed on the floor of the J&K assembly, generally means that even Woman Empowerment bills like the Triple Talaq Bill are usually held captive.
Another section of society who have been harassed by Article 370 are the ones belonging to the Valmiki tribes of Kahsmir. The people from the Valmiki Tribes are mostly manual scavengers by profession, in 1957 these manual scavengers of the Valmiki tribe were brought into Kashmir from other states after local safai karamcharis of Jammu & Kashmir went on an indefinite strike. These people were given ‘Permanent Resident Certificates’ on the condition that they and their future generations could stay in the State only if they continued to be scavengers. This made sure that people of this caste forever remain under the lower strata of the social-economic spectrum, six decades have come to pass and yet, this regressive law stays. They have no access to any legitimate Government jobs,
and no matter what their qualification the only jobs that they are even allowed to apply for are that of sweepers or manual scavengers. In addition to this, if person from the Valmiki tribe somehow managed to get a degree from another state and uses it to practice a profession that he is qualified for inside the State of Jammu & Kashmir, then he immediately loses his Kashmiri Citizenship rights and loses his privilege even to retain the property that is his. This law by effect violates Article 14 which states “The State shall not deny to any person equality before the law within the territory of India.” & Article15 which states “the state is denied from discriminating any citizen on ground of any religion, race, caste, sex, place of birth” is this not a violation of fundamental rights? The hypocrisy of all the Leftists who claim to be the voices of the Dalits are out for the world to see, for there has never been a worst case of State Sponsored Human rights violation than what the Valmiki tribes of Kashmir have had to endure.
The State of Jammu & Kashmir has always been a place of unrest and this toxic atmosphere in Jammu & Kashmir has been sustained as such by the three powerful families, the Muftis, the Abdullahs and the Geelanis, who have understood that for them to have a permanent hold on the J&K, the state needs to be in a perpetual state of chaos. They have used this state of chaos to play to the tunes of Pakistan and wage their proxy war on India. To these separatist leaders the youth of Kashmir are nothing more than accessories to be used for sustaining their hold, which is why it is imperative that the youth of the valley are rendered jobless. The existence of Article 370 & 35A makes it impossible for any other Indian Citizen to set up any establishments or Industries in Jammu & Kashmir, this has resulted in almost negligible economic growth, lack of skilled labour and lack of jobs. If Indians(non-Kashmiris) cannot invest in land or property, how can manufacturing firms or multinational corporations come up? This might have provided jobs to the young people of Kashmir and enhanced their quality of living. It is also to be noted that Article 370 also stopped public colleges such as medical colleges from adequately fulfilling vacancies and as we know professors cannot be hired from outside the State, these and many more ensure that unemployment increases. It is often said that “An idle Mind is a Devils Workshop”. The extremist leaders of Jammu & Kashmir seek to exploit this idleness of the youth and use it fan the flames of extremism. What is more shocking is that monetary benefits are provided for the stone pelters who are encouraged to target the army, with the going rate ranging from Rs.10 to Rs.1000 for a stone thrown, depending upon the risk involved.
The Political families of the Kashmiri valley have often been accused of corruption and of swindling of the state funds and this seems to bear credibility. For one, Jammu and Kashmir receives 10 per cent of all Central grants given to the states, even when it only accounts to one per cent of the country’s population. In contrast, Uttar Pradesh, which although makes up about 13 per cent of the country’s population receives only 8.2 per cent of Central grants in 2000 – 16. The insinuation being that Jammu & Kashmir, with a population of 12.55 million(2011 Census) receives about Rs.91,300 per person over the last sixteen years while Uttar Pradesh only received Rs.4,300 per person over the same period. All this considering, that the State’s growth has been nothing but non-existent to say the least. All this points in the direction of State wide corruption with extremism used to digress from the real issues at hand. To add insult to injury even after the fact that the Centre bears close to 90% of the States Expenditure, Article 370 grants Kashmiri Extremists the rights to burn down the Indian Flag and not be held accountable, for it is not even considered to be a cognizable offence. Even worse Article 370 has in a way left us incapacitated in our fight against extremism and terrorism inside the valley.
This brings us to the final question, why now? The answer to this is, why not now? As such, the Article 370 should have been legitimately scraped in 1957 when the Jammu and Kashmir Constitution came into existence and when the constituent assembly got dissolved. The reason why it was not done so, was to cater to the needs of the rich and powerful. Let us truthfully ask ourselves, what have we achieved for the State of Jammu & Kashmir by allowing the temporary provision of Article 370 to exist for more than 65 years? Has the State developed? Have the people of the valley been blessed with an exuberant life? Do they even live in serenity? The valley has been kept under constant unrest all this time, this has to end. It is time for peace and progress to return to the valley and time for us to accept that Article 370 has out stayed its welcome.
In the words of the great Dr.Syama Prasad Mookerjee, “Ek desh mein do vidhaan, do nishaan, do pradhaan nahin chalega“(“In one country, there can’t be two law codes, two prime ministers and two national symbols”). Dr Syama Prasad Mookerjee, who was the founder of the BJP had died for this slogan. He was arrested on May 11, 1953 and he died of suspicious circumstances in a Srinagar jail on June 23 of the same year. His lifetime dream of an integrated India, with One Constitution and One Flag has finally been achieved by the PM Narendra Modi led Government. The Modi and Amit Shah duo have indeed created history by bifurcating a state but having united a country.