Monday, 25 May 2020

From “Indian Kashmir” to “Indian”

By Pinky Anand
Updated: August 22, 2019 11:27 am

5th August, as the news reports came pouring in about a cabinet meeting called on the morning of 5th March, the entire nation knew something was happening in Kashmir. The deputation of 35000 armed personnel in recent days in the state of Kashmir, which is already one of the world’s most heavily militarized zones was a clear hint of something brewing in the hill state.  The morning of 5th August brought about the presentation of  India’s Home Minister, to abrogate article 370 of the Indian Constitution.

Article 370 of the Indian Constitution has been one of the hottest contested provisions given to the State of Jammu and Kashmir. To understand the true import of how this article has impacted, not just the state of Jammu and Kashmir, we will need to go back 70 years, when the instrument of accession was signed by the erstwhile Maharaja Hari Singh. The Muslim majority state was at the time ruled by Maharaja Hari Singh.

The circumstance in which the instrument of accession was signed is of particular importance to understand the dynamics of the issue and how Article 370, which gave a special status to the state of Jammu and Kashmir, came into being. The year 1946 was an exceptionally relevant year in the political history of India. The year before the formal independence was declared for the State that came to be known as Bharat, Sardar Patel had a dream of an Akhand Bharat, a united and a complete India. While several states acceded to the dominion of the newly formed India, Kashmir, ruled by the Maharajah had a separate stand. In and around October 1947, there were reports of some Pashtun tribesmen and Pakistani persons heading towards the city of Srinagar. At that time, the only state capable of protecting Kashmir was the state of India; however, we could not send our forces to a territory which was not ours. The instrument was accession was signed as a compromise, between the Maharaj and Jawaharlal Nehru, to enable Indian forces to protect the territory as a formal part of their land.

Clause 5, 6 and 7 of the instrument of accession gave rights to Kashmir for autonomy and prohibited any changes by the Government of India Act 1947, and prohibited the imposition of any future Constitution of India on the state of Kashmir. In 1950, when the final draft of the constitution was prepared, the makers gave the state autonomy in Article 370, under hotly contested debates. Article 370 was drafted by CA Ayyengar, one of the nominees by the Maharaja Hari Singh, who was the Dewan of the state of Kashmir. At the time, Sardar Patel expressed his disappointment to Nehru. The instrument of accession and the subsequent Article 370 put the hill state in control of all matters except defence, foreign affairs and communication, which is essentially the same arrangement as Maharaja had with the British Government at the time.

Another offshoot of Article 370 was Article 35A which gave powers to the government of Kashmir to define who was a citizen of Kashmir and bestow special right and privileges on him. Ironically it had come to pass that the instrument of accession and the drafting of article 370 was the very provisions that prevented everybody except a select few from owning property in their own homeland. The exodus of the kashmiri pundits is widely heralded to be one of the greatest displacements of the world.

The History of the incorporation of Article 35A is in itself suspect. The constitution of the State of Jammu and Kashmir was incorporated on 17th November 1956, it defines a  Permanent Resident (PR) of the state of Jammu and Kashmir as a person who was a state subject on 14 May, 1954 or who has been a resident of the state for 10 years and has “lawfully acquired immovable property in the state”. Article 35A gives the powers to the Jammu and Kashmir legislature on who is a permanent resident and has the power to confer on them special benefits. Article 35A was incorporated bypassing the legislature and was directly assented to b y the President, thus clearly falling foul of Article 368, where only the legislature has the power to amend the constitution.

The special status given to the State of Jammu and Kashmir included a provision for a constituent assembly. This Constituent assembly however was disbanded in 1956.

The State of Jammu and Kashmir now had a legislative assembly, which too was dissolved when the Governor dissolved the assembly in November 2018.

The Constitution amendment order of 2019 uses the powers of the President as granted under Article 370(1) to amend Article 370(3) via Article 367. The order adds an additional clause to Article 367, stipulating that “in proviso to clause (3) of Article 370 of this Constitution, the expression ‘Constituent Assembly of the State referred to in clause (2)” shall read “legislative Assembly of the State.”

Article 370(1)(d) empowers the president to apply such other provisions of the constitution with exceptions and modification as the president may by order specify. Any such order has to be in concurrence with the Government of the State.

Article 92 of the Constitution of J & K clearly states that during the time when there is break down of Constitutional machinery in the state the Governor can by a proclamation assume to himself all or any of the functions of the Government of the State. Therefore during a proclamation under Article 92 the governor assumes the role of the Government of State.

The August 5 notification by the President modifies Article 367 in its application to the State of J & K with the concurrence of the Governor as presently the Governor has assumed the role of the Government of the State. The notification where by all provisions of the Constitution have been made applicable to the state of J&K has been issued with the concurrence of the Governor and is therefore valid.

The modification in Article 367 inter alia, so far as it applies to the State of J&K is that any reference to the Constituent Assembly in Article 370 shall mean Legislative Assembly of the State. With this modification, the declaration that Article 370 shall cease to be operative, can be made by the President with the concurrence of the Legislative Assembly of the State.

The President modified the provisions of the Constitution relating to the State of Jammu and Kashmir with the concurrence of the Governor, as the legislative assembly had been dissolved, amalgamating the State of Jammu and Kashmir to the rest of India and amending Article 370 to read:

“370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise.”

The last 70 years have been a nightmare, not just for the Indians but also the inhabitants of Kashmir. The territory has been claimed by Pakistan as well as India, despite the clear status that the territory was acceded by the erstwhile Maharajah to the then dominion of India. Over the years, the UN has been apprised of the disputed territory, India and Pakistan have both raised this issue in various forums, India on the basis of the instrument of accession, Pakistan claiming that Indians deny Kashmiri’s the right to plebiscite and a third cry by the Kashmiri separatists of “Azaad Kashmir”.

When we take arguments one by one, we will see that the signing of the instrument of accession is a historical fact. India has the right to administer its territories in any way it sees fit. Today with the invoking of the powers under Article 370 extending the laws that are applicable to the entire nation, to an integral part of the nation. In essence, making the state of Kashmir in line with the rest of India.

The recent years have been instrumental in the History of India. We have made leaps and bounds in progress. The detractors may cry hoarse, but the evidence is there for everyone to see. We have made leaps in the area of law and justice. The Supreme Court has been active in creating historic, laudable judgments which have been lauded the world over. We have crystallized the rights to privacy, sexual orientation, the right to life and death, banned triple talaq, equality of women and their rights, to name a few in the social sphere. The laws of the country have been created and remoulded to create more diverse social and economic atmosphere. The standard of living has improved and our cities boast education and commerce to rival the best in the world.

 

In this spurt of growth we have seen, we also see an integral part of India left behind. Article 370 and Article 35A , purportedly created to give autonomy to the state has infact created shackles to a region with enormous potential. With the passing of the Presidential decree, the laws as applicable to the Union of India, which have evolved and balanced and created over the last 70 years, will be applicable to the state of Kashmir. Part IV of the Constitution of India, which enshrines Fundamental rights will be applicable in a population where Human rights violations are reported daily. Laws regarding property, succession, equality of women, human and fundamental rights will finally be enforced in a state rife with inter border insurgency.

 

India has over the last 70 years raised this topic in various forums, bilateral talks, documents have been signed, there have been efforts on all quarters to resolve the knot of Kashmir, all while Kashmir burnt. The people of Kashmir suffered. Reports of cross border terrorism is an accepted way of life in Kashmir. Today we can see videos on Youtube of influencers like Burhan Wani clothed as an armed insurgent, spreading messages of separatism and warning the people of Kashmir of more blasts, more bloodshed to follow. All the while the common Kashmiri waited for someone to come and save them from the bloodshed. The war that is being fought ostensibly in the name of the common Kashmiri is the reason he does not have basic rights like education, equality and property that the rest of the country takes for granted today. It is telling that since 1989, 41,500 people have been killed in Kashmir. The area, famously called “paradise on earth” is a valley where the echoes of the slain sound from every corner.

It is telling that India as of 4th August, 2019 consisted on 29 states and 7 Union Territories, and shares borders with Pakistan, China, Bangladesh and Nepal has no reports of cross border insurgency in any of the other areas. It is only in this area, where Article 370 has given special powers to administer state, which has become a disputed territory.

India has complete and absolute rights to protect any formal territory as well as ensure the development of the people and applicability of its laws and benefits on all its citizens. The actions of the parliament on 5th and the 6th August has made sure that a significant population of our country catches up and reaps the benefit of a growing advancing nation.

In a telling circumstance, that the Home minister pointed out in his speech, India has programmes like ayushman bharat and right to education, while these facilities are non existent in the Indian state of Kashmir.

Last year, in 2018 june, the elected Chief Minister of Kashmir, Mehbooba Mufti resigned. Since then, the state has been in a deadlock. The state has been under the Governor’s rule.  In this situation, the only option for the government was to abrogate Article 370 with the assent of the governor, amalgamating Kashmir to the Union of India, as a true and essential part of India and ensuring that the state has adequate support and security. Politics of the region aside, what this means for the common kashmiri is food, commerce, ecommerce, education, employment, fundamental rights and a long overdue chance at peace and security. It means their children will be safe on the roads, it means that the Kashmiri pundits, long wait to return to their homeland will finally end and it means there is finally a chance that Kashmir will rise from the mire of insurgency and fear and truly realize its potential as paradise on earth.

Kashmir has been fragile for decades. It has been the subject of numerous talks and discussions internationally, all the while burning. It is laudable for the Indian Government to have taken a long awaited step, to have done away with the lines that divided the kashmiri from the Indian, to have finally done away with the idea of the ‘Indian Kashmiri’ and brought the concept of ‘Indian’.

 

(The writer is a Sr. Advocate)

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