Online version of this research paper can be accessed at:
http://grdspublishing.org/index.php/people/article/view/474
Introduction
Article 370 of the
Constitution of India provides special autonomous status to the state
of Jammu & Kashmir. The erstwhile Article 238, pertaining to Part
B states or former princely states was repealed by the 7th
Constitutional Amendment in 1956 after the reorganisation of states.
However Article 370 overrode the provisions of Article 238 as special
provisions to the state of J&K. The provisions of Article 370
have been controversial right from inception, with Dr BR Ambedkar as
the principal drafter of the Constitution, having refused to draft
the article owing its bias and unequal dispensations within the
framework of a free India. The drafting was eventually done by
Gopalaswami Ayyangar, who was a former Diwan to the Maharaja of J&K.
It was initially meant to be temporary in nature, hence it was
included in the Temporary and Transitional Provisions in Part XXI.
This paper intends to examine the Article and the validity of the
politics attached to it, based on four specific arguments, these
being as under:
First, how the very Genesis
of Article 370 spawns conditions for inequality in India. Second, how
the Retention
of Article 370 implies festering of contentious issues. Third, how
the Ramifications
of Article 370 forge inequality within the state of J&K. Fourth,
how the Politics
over Article 370 only seek limited leverage from it.
The above arguments have been
examined through an engagement with primary and secondary sources,
and attempt to address the views presented in sources representing
different traditions. Article 370 has been examined using the points
of views across a spectrum of opinion, an interpretivist approach
tries to classify this debate in the larger context of its
continuation or revocation.
Was Article 370 used for the
delegation of power as it was originally intended to do for a
vulnerable population who were insecure about their identity and
their culture? Did Article 370 recreate power structures as it was
intended to, or did it just add another level of subterfuge to extant
biases in society? Did Article 370 indeed increase the level of
accountability in the institutions of the state that were meant to
protect the rights of the people and therefore empower them? Has
Article 370 improved social mobility in any manner, or has it in fact
served to only curb it further? Is there an underlying and inherent
contradiction in the debate about whether the state wants to be a
part of India or its quest for self governance? Finally, has Article
370 worked in the manner it was envisaged to, or has it succeeded in
aggravating inequality within the state and in the larger context of
India? The analyses of these arguments would seek to answer the
question whether Article 370 should continue or be revoked, and
whether it is related to the growth of conflict in J&K.
The Instrument of Accession
for the state of Jammu & Kashmir was signed by Maharaja Hari
Singh on 26th
October 1947, making the state an integral part of the Union of
India, and marking the culmination of the longest standing conflict
in South Asia. In these the most desperate of circumstances, in an
act signifying sheer despondency, the wily Maharaja still managed to
insert clauses in to the agreement to ensure Indian jurisdiction
remained confined to defence, external affairs and communications.
Effectively, these clauses were meant as safeguards to his own
sovereignty1
(Akbar 2008: 135). It also signified in some ways the Maharaja's
difficulty in swallowing a situation wherein he not only had to deal
with Nehru, Prime Minister of India, but also Sheikh Abdullah, who
had consistently opposed him for over twenty years2
(Schofield 2010). Despite some opposition from the Constituent
Assembly of India, the issue never drew the kind of vehement
opposition that would have ensured its timely burial, and ultimately
it became the effective precursor to Article 370 of the Indian
Constitution. Due to the opposition of Dr BR Ambedkar in drafting the
article, owing its bias and unequal dispensation within the framework
of independent India's Constitution, the task was entrusted to
Gopalaswami Ayyangar, trusted by Prime Minister Nehru, and a former
aide of the Maharaja. Ayyangar argued that the special article
governing J&K was a fallout of the special conditions of its
accession to India coupled with the military conflict that had
overtaken it immediately. Further, with the involvement of the United
Nations, it was seen as a positive projection of the nascent Indian
republic trying to base such issues on the 'will of the people'.
Thus, Article 370 confers special status to the state of J&K,
which is one of the vexing conundrums of contemporary Indian
politics; in fact the inherent inequality gave rise to the entire
debate about a special status given unlike other princely states
which acceded to India in 1947. Had it not been for this special
status, certain realities may not have changed even in this case, and
the quandaries may have still remained as complex. It would still be
a Hindu Maharaja ruled state with a dominant Muslim population. Post
the accession, the opposition to the imbalance between the two would
still have been palpably present; in fact, possibly more so, given
the imposition of a social and democratic order (as per the
Constitution of India). Post Independence India would still see a
churn in terms of its social outlook, policies, laws giving some
manner of equality to its diverse population, of which the people of
J&K would partake equally. Wherein Sheikh Abdullah as a popular
leader may not have changed, but the differences between him and the
central government may never have arisen. Even if they had, the
differences may have been of the nature that political differences
arose with leaders such as JP Narayan. Yet the yearning of the people
for equality, for development, for justice, would have existed. It
may have resulted in J&K taking a route akin to the other Indian
states of Bihar or Uttar Pradesh or Madhya Pradesh; extant
differences in various regions (whether based on identity or
religion) may have seen the division of the state into simpler
administrative units (as has been the case with Jharkhand or
Chhattisgarh or Uttarakhand). Individual states and/or union
territories of Jammu, Kashmir and Ladakh being formed to cater to the
aspirations of the distinct people of each of these parts may have
sprung up in due course.
Given the nature of social
conflicts, unequal terms will invariably create conditions for the
conflict to take a destructive turn. The inexorable nature of
conflict would not necessarily mean unbridled violence, provided the
conflict is moulded or turned towards a positive and constructive
turn. The choice to make the social conflict in J&K constructive
in nature was within the grasp of the Indian government, as Sheikh
Abdullah initially professed his fidelity to India and its Prime
Minister, Jawaharlal Nehru3
(Akbar 2008). He propagated the cause of joining India, especially in
terms of the peasant reforms he intended to usher in, which would
never reach fruition in a feudalism protected Pakistan. This would
also have proved to be the death knell of an unequal and
controversial Article 370. However as history bears us out, events
turned in a different direction.
Therefore in its very genesis,
Article 370 sought to create unequal terms for people who were
citizens of the same country, living in different regions. This was
also a precursor to the unequal development of people in J&K
itself and in comparison to the rest of the country. The multiple
cause and effect of the Maharaja's bid to safeguard his own
sovereignty, Nehru's bid to invalidate Jinnah's Two Nation Theory,
and Sheikh Abdullah's bid to ascend to power; all of these have only
resulted in effecting an unequal playing field and creating roots for
future disharmony.
Argument 2: The Retention of Article 370 allowed the contentious
issue to fester beyond reasonable limits
Under Part XXI of the
Constitution of India, special autonomous status is granted to the
state of J&K4
(Constitution of India Updated 2015). Part XXI of the Constitution
deals with the Temporary, Transitional and Special Provisions. Some
of these provisions also exist for tribal areas in India, such as
Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland.
However the special status granted to J&K after accession has
been retained as such due to the ongoing dispute at the UN Security
Council between India and Pakistan.
Despite the grant of special
status to the state of J&K, it remained mired in controversy and
political intrigue right from accession itself. Conflicting interests
of the main protagonists resulted in a series of differences on a
number of key issues. Needless to say, it set the tone for the future
as well. For instance, India and Pakistan were at loggerheads on the
legality of accession, both making claims and counter claims. With
the issue being raised before the UN, the question of a plebiscite
became more complex. This complexity was owed to Pakistan's refusal
to concede the territories annexed by it and ostensibly named Azad
Kashmir or free
Kashmir. India on the other hand used this as an argument against the
conduct of plebiscite; plebiscite after all was meant for the
complete state of J&K, and not just the portion which remained
under Indian control. A special United Nations Commission for India
and Pakistan (UNCIP) intended to negotiate the withdrawal
arrangements as per the Security Council resolution and made three
visits to the subcontinent between 1948 and 1949, trying to find a
solution agreeable to both India and Pakistan. A resolution was
passed in August 1948 proposing a three-part process, which was
accepted by India but rejected by Pakistan5.
India insisted that Pakistan
withdraw first, and Pakistan contended that there was no guarantee
that India would withdraw afterwards; this resulted in a stalemate.
Within India, the veracity of
a special status was being heatedly debated. Sheikh Abdullah had his
own vision of a new Kashmir, and was frequently conflicting with the
Maharaja on issues of command and control, including the future of
the state forces. This got further exacerbated by the absence of the
Maharaja from the seat of power in Srinagar, making any communication
between the two even more minimal. With the Sheikh enjoying the
patronage of Nehru, in May 1949, the Maharaja was eventually asked to
take a holiday away from the state, a euphemism for advising him
abdication of the throne6
(Singh 1982). It was less than two years since the accession. In
some ways this emboldened Sheikh Abdullah, as was seen in later
years.
In the next few years, the
Sheikh was seen making repeated flip- flops in his stance towards the
future status of J&K. While publicly proclaiming allegiance to
India, he was seen dallying with the establishment in Pakistan, as
well as exploring the option of an independent Kashmir. In 1948 at
the United Nations (UN), Abdullah spoke in favour of the Accession,
but in a private meeting with Warren Austin the United States (US)
representative to the UN, he discussed this third option of
independence, with British and American aid to help develop the new
country7
(Bhattacharjea 1994). In the same instance there were reports of his
discussions with the Pakistani delegation wherein he assuaged their
fears by the argument that an independent Kashmir would naturally
tilt towards Pakistan. This was viewed with suspicion by the
government of India amidst growing political din on the issue of a
continued special status. Sardar Vallabhbhai Patel, the Home Minister
of India was indeed very worried about the Sheikh being in constant
communication with his erstwhile comrades across the Cease Fire Line,
especially Ghulam Abbas. The same has has been noted with some
concern in his correspondence with Nehru8
(Patel 1948, 1950). The constituent assembly of J&K which had 100
seats, continued to retain 25 seats for the members from Pakistan
occupied Kashmir (PoK)9.
In the areas of Jammu and Ladakh, other reasons for dissent were
fermenting. In Jammu, the sudden shift from a Jammu based Hindu ruler
to a Kashmir based Muslim rule, was cause for tremendous heartburn,
as were the issues of a separate flag, a separate constitution and a
separately elected governor (not nominated by the centre in Delhi).
Similarly, in Ladakh, it soon became evident that Sheikh Abdullah was
far removed from the Ladakhis and their way of life. As early as
1949, they wrote to Nehru to ask for integration with Jammu or East
Punjab, as separate from the valley. The enormous wealth of Buddhist
monasteries was threatened by the land reforms of Sheikh Abdullah,
setting off a religious friction, as also the fear of eventual
accession to Pakistan. Further, the Shia Muslim population of Kargil
did not harbour any intentions of joining up with a cause largely
championed by Sunni Muslims as also a Sunni dominated Pakistan. All
these issues served to make the question of Article 370 even more
vexed and contentious.
In 1953, Sheikh Abdullah was
arrested and almost continuously for the next 20 years continued to
be detained by the Government of India. The intervening years saw the
rise of Bakshi Ghulam Mohammad and later GM Sadiq, with the worst of
political manoeuvring to stay in power keeping Article 370
artificially propped. After the Sheikh was finally released in 1973,
detailed discussions were conducted between him and Prime Minister
Indira Gandhi, with the focus on a self rule by a democratically
elected government. Accordingly, the Indira Gandhi- Sheikh Abdullah
accord of 1974 committed itself to continue status quo under
provisions of Article 370.
Thereby the Centre's
jurisdiction extends to Defence, External Affairs, Communications and
Finance. J&K can be placed under the Governor's Rule in a state
of Emergency only under certain conditions. The state has its own
Constitution, titled Constitution of Jammu & Kashmir, which was
ratified in law by the Centre in 1957, after its adoption by the
state in November 1956. The two main bones of contention that have
emerged as part of the narrative are:
- Why two constitutions? This
is considered unequal with the rest of the country. Even if the
special status is justified by the special circumstances surrounding
the accession of J&K to India, the second point becomes difficult
to answer in logical terms. Further, in the other parts of the
country which were given special status owing various reasons, a
separate constitution has not been sought. This exacerbates the bias,
and qualifies the argument in favour of inequality.
- Why have an article in the
Indian constitution that leaves so much room for continued
misinterpretation, which has been repeatedly proved by events over
the intervening years. Whether it was Abdullah citing the special
status to justify his dalliance with Pakistan, or the inciting of
violence by Pakistan, or the creation of an unequal platform within
India, all these are indicative of the kind of misinterpretation of
Article 370.
A counter argument offered is
the gradual erosion of Article 370 by a series of Presidential orders
which have left only a shadow of the original article; the only
substantial differences pertain to the rights of permanent residents,
emergency provisions and name and boundaries of the state10
(Mattoo 2014). This has been viewed as a cause for an ideological
clash. However, the nationalists perceive this as only a lame excuse
to justify the ongoing conflict. In any case history bears out the
fact that the very people responsible for the political and
constitutional erosion are now assuming the moral high ground of
autonomy. The mainstream polity and intelligentsia profess that the
continued retention of Article 370 has allowed contentious issues to
fester beyond reasonable limits. Had the Article been time bound or
incorporated in a manner to allow its lapse in due course of time, a
very high probability of the contentions being resolved would have
existed. Integration in to the mainstream of society and polity have
normally been seen as equalizers. The flow of liberal opinion, people
and ideas does not reduce the autonomy or the identity; to the
contrary they only serve to secure.
Argument 3: The Ramifications of Article 370 seek to create
inequality even within the state of J&K
Although J&K was adopted
as the 15th
state of of India, the special status conferred on the state under
Article 370, limits the jurisdiction of the Centre over the state.
Despite this, Sheikh Abdullah considered the inclusion of the article
under Temporary and Transitional Provisions of the Constitution
dubious, and insisted on iron-clad guarantees. Notwithstanding the
guarantees offered by the Constitution which result in severe
restrictions on the Centre Abdullah used these as the underlying
(mis)interpretations for his historical shift from a pro- India
stance to one of Independence/ self determination. It got him
arrested in 1953, as well as dismissal of his government – the
start to what would be nearly 20 years in detention.
Under Emergency Provisions,
the Centre can only declare emergency in J&K in case of war/
external aggression. It cannot declare financial emergency or an
emergency on the grounds of internal disturbances without state
government concurrence. It remains the only state to not have to
account for the monies flowing in and out of the state. Further,
Fundamental Duties and Directive Principles of State are not
applicable to J&K. The Constitution of J&K cannot be amended
in respect of the provisions of Article 370 by the state legislature.
The Centre cannot revoke Article 370 without the recommendations of
the Constituent Assembly of J&K. The Constituent Assembly ceased
to exist in 1957 hence the revocation of Article 370 cannot be done
without an amendment of the Constitution of India. (It is pertinent
to note here that this convoluted state of affairs is largely
attributable to the political opportunism embraced by the leaders of
the state and their inter-se relationship with the polity and the
political thought at the Centre). If the Indian Parliament amends
the Constitution of India in order to remove Article 370, apart from
the political machinations required for such an exercise, such an act
may be subject to judicial review. Opinion is divided on whether such
an occurrence will be able to stand up to judicial scrutiny.
Certain issues which stand out
in the context of inequality in the state are being highlighted in
the argument. Firstly, inequality pertaining to religion. Secondly,
inequality of resident status. Thirdly, deprivation of rights to
underprivileged sections. Last but not the least, gender bias
inherent to the provisions of Article 370.
Inequalities pertaining to
religion have been persistent since accession of J&K to the
Indian state. At the time of accession, J&K had about 4 million
people, 76.4% being Muslim, 20.1% Hindu, and 3.49% Others, mostly
Sikh and Buddhist. Srinagar had 208,000 people (78.4% Muslim, 20.7%
Hindu, 0.9% Others), and Jammu had 50,000 people (60.7% Hindu, 31.6%
Muslim, 7.8% Others, mostly Sikh). Demographics changed on account of
the occupation of almost one third of the territory by Pakistan,
called PoK, then by the Chinese occupation of Aksai Chin, and then by
the ceding of Sakshgam by Pakistan to China. As a result a census in
J&K is not complete; yet if the Line of Control (LoC) were to
become the de-facto International Boundary (IB), the demographics
would be very different than what is being claimed as a Muslim
majority state. Areas of Jammu and Ladakh are not demographically
similar to those of Kashmir; also, large tracts of J&K are Shia
dominated, such as Kargil in India and Gilgit- Baltistan on the
Pakistani side of the LoC. Historically, Shias have largely not been
a part of the separatist demand, and more so since Pakistan is Sunni
dominated and has a long and bloody history of Shia persecution in
its occupied territories.
Given below is a tabulated
form of population figures in J&K which further amplify the
argument, indicating the change in demographics, as illustrated in
the maps above.
Table 1:
Population of Jammu & Kashmir by religious figures*
|
Division
|
%Area
|
%Population
|
Population
|
%Muslim
|
%Hindu
|
%Sikh
|
%Buddhist/Others
|
|
Kashmir
|
15.73%
|
54.93%
|
6,888,475
|
96.40%
|
2.45%
|
0.98%
|
0.17%
|
|
Jammu
|
25.93%
|
42.89%
|
5,378,538
|
33.45%
|
62.55%
|
3.30%
|
0.70%
|
|
Ladakh
|
58.33%
|
2.18%
|
274,289
|
46.40%
|
12.11%
|
0.82%
|
39.67%
|
|
Jammu
& Kashmir
|
100%
|
100%
|
12,541,302
|
68.31%
|
28.43%
|
1.87%
|
0.89%
|
*Source: Census of India, 2011
As per records, approximately
525,000 people migrated from Indian J&K to Pakistan and PoK in
1947- 48, as against about 226,000 from PoK to India (Snedden, 2013).
Since the 1990s, about 300,000 Kashmiri Pandits have been displaced
from Kashmir as per analyses by various agencies, including the
Central Intelligence Agency (CIA).
In the larger context of the
scenario today, Article 370 seems to be unjustly tilted in favour of
the Muslim population of (only) Kashmir, whereas it seemingly
neglects the aspirations of Shia Muslims in other parts of J&K,
Hindus, Sikhs and Buddhists. These communities have close links with
their brethren in other parts of the country. For instance, Hindus,
largely Dogras, in Jammu are closer to the Dogras in Himachal Pradesh
and Punjab, Sikhs have ties with the Sikhs of Punjab and north India,
and even the Buddhists are closely linked to the Buddhist communities
settled in Himachal Pradesh and other parts of north India.
Therefore, is it fair to impress Article 370 on these communities,
who may want to maintain and further their ties within their
respective ethno- cultural religious communities in other parts of
the country, but are invariably restricted by the issue of losing
their rights as citizens of J&K by doing this. This argument can
be further carried forward if one were to include the occupied
territories of PoK. It is well known and documented that Pakistan has
followed a single point agenda in PoK, wherein it has encouraged
large scale migration by its Punjabi population in to these areas in
order to change the demographic profile in the long run. It hopes to
upset the plebiscite vote in its favour in the (remote) eventuality
of that event taking place. Over the years, it has sought to do the
same with Gilgit- Baltistan by way of its maturing relationship with
China, the ceding of Sakshgam valley, and lately the China-Pakistan
Economic Corridor (CPEC) that runs smack through the middle of
disputed territory. Rising protests from the local population for
economic, political and demographic reasons have been highlighted in
the media and have been documented in another paper by the author.
Therefore, the facts as
mentioned above point directly to a positive correlation of Article
370 with promoting religious inequality in the state. Pertinent here
is that the issue of religion has crept in to J&K politics only
recently, and that too, likely at the behest of Pakistan to further
its own aims. If J&K were to be amalgamated in to India, even
with certain provisions relating to protection of its autonomy in
Article 370, there need not be any insecurity on account of religious
denomination. This is especially so given the secular fabric of
India. On the other hand, this continued retention of the article is
creating unnecessary religion based rifts owing its tilt to one
community.
Inequalities pertaining to
resident status have been existing since the accession of J&K to
India in the aftermath of partition. The rights of Permanent
Residents (PRs) as brought out earlier, extend to property,
citizenship etc. Effecting this was seen as a means to protecting the
identity of the Kashmiris, but the state saw a migration of almost
525,000 people towards the territories under Pakistani control and
about 226,000 towards India. In PoK, no such concern was exhibited
towards protection of the Kashmiri identity, and over the last six
decades, a massive influx of people from other parts of Pakistan has
been encouraged, for settlement in the region. In the early 1980s,
the Sheikh Abdullah government passed the Resettlement Bill (now Act
and under judicial review of the Supreme Court), to resettle those
who migrated to Pakistan and their descendants to return and reclaim
property and citizenship rights in J&K. This matter was taken to
the Supreme Court, after massive protests by both the Congress and
Bhartiya Janta Party (BJP). Though under judicial review, the Act
exists, and does gross injustice to the cause of Kashmiri identity,
because the demographics in PoK are no longer what they were sixty
years ago. And indeed, if this were to be implemented, then what
about the rights of those who came in from Pakistan, or the Kashmiri
Pandits in exile? Ironically, a Pakistani woman getting married to a
Kashmiri will get this status. On the other hand those who migrated
from West Pakistan, and despite living in the state for more than six
decades, are denied their fundamental rights as citizens of the
state11.
In addition, there is the Kashmiri Pandit community which has seen
mass exodus 1990 onwards; very legitimately, their concerns about
their resident status remain one of the biggest questions facing any
settlement of the J&K issue.
Here again, what does the
vexatious Article 370 have to offer? If we were to assume PoK being a
foregone conclusion, then the state of J&K as it stands today on
the Indian side of the LoC can no longer justify the provisions of
this article, because the fundamental rights of a large section of
people residing in the state or having been forced to leave, both
have to be ensured and restored. However, if we optimistically hope
to see the state of J&K in its original form, then those who
argue in favour of Article 370 will not have any means to justify the
change in demographic patterns in PoK.
For those who argue about the
erosion of Article 370, it is important to remember that Presidential
Orders have served to provide the same benefits that underprivileged
sections in India enjoy. Herein the inequalities arising due to
deprivation of rights to such underprivileged sections come in to
play. If Article 370 were to be restored to its original form, the
entire gamut of reservations to Scheduled Castes (SCs), Scheduled
Tribes (STs) and Other Backward Classes (OBCs) in education and
employment would get rolled back. Would that not be a regressive
move? Without entering any debate about reservations as such, it
suffices here to agree that certain sections of society need some
reservation to enable them to reach some semblance of equality with
the more privileged lot.
In the run up to the
Parliamentary Elections of 2014, the BJP's Prime Ministerial
candidate Narendra Modi made some remarks about the lack of status
afforded to women in J&K12.
Though factually inaccurate, and which was gleefully pointed out by
his opponents, the fact remained that his remarks raised the bogey of
Article 370 once again. In this instance, it was at the national
level, opening up a debate about whether it was time for Article 370
to be revisited and possibly revoked13
(Joshi 2014).
Certain special rights have
been granted to the citizens of the state pertaining to permanent
settlement, acquisition of property, employment, scholarship and
forms of aid. For instance, only permanent residents of the state are
allowed to acquire property. Though both males and females are PRs,
females lost their PR status upon marriage, till as late as 2002. In
that year, a J&K High Court judgement by a full bench, one judge
dissenting, forced the government to rescind this unequal provision,
making women eligible to remain PRs and continue to enjoy the various
rights of a PR14
(Puri nd). Yet a measure of the resistance to any change can be found
in the then People's Democratic Party (PDP) government introducing a
Bill titled PR (Disqualification) Bill 2004, which even found
political backing from its arch rival the National Conference party.
The Bill was passed in the lower house of the Assembly; fortunately
it did not see fruition in the upper House. This gives rise to a
debate on gender bias inherent within the provisions of the article.
The positive correlation
between Article 370 and the inequality in the state is evident from
these ramifications of the article. What was incorporated to
ostensibly protect the rights of the people of J&K, seems to have
evolved in a way to create the mythical hydra. In its present form,
Article 370 seeks to create inequality in a society which is already
reeling from its effects.
Argument 4: Politics over Article 370 are only a manifestation of
seeking limited political leverage from the ongoing debate.
Due to the politically charged
atmosphere, Article 370 finds a mention in various fora. These can
largely be viewed as bids to gain political ground or create
political space for parties seeking media attention. Alternatively,
with a mention of Article 370, political parties try to popularise
their respective agendas and polarise their respective
constituencies. Usually such political statements are made without
reference to the fact that
J&K is not a homogeneous entity; Jammu has a majority Hindu
population and Ladakh comprises Buddhists and Shia Muslims. That
Article 370 is grossly incompatible with the full integration of J&K
with the rest of India tends to get overlooked by political rhetoric.
The fact that a concurrence is required for every decision of the
Centre by the state government effectively serves as a veto. Other
facts such as Article 352 and 360 (declaration of national and
financial emergency) not being applicable to J&K, citizens having
dual citizenship etc are all lost in the political din. Article 356
for imposition of President's rule cannot be enforced in J&K
without the consent of the Governor.
To get an idea of the extent
to which Article 370 is misinterpreted to suit the interests of the
state government (and not the people), a landmark judgement by the
National Human Rights Commission (NHRC) in the case of the custodial
death of a rickshaw puller, Mohan Lal in police custody due to
torture, highlights the issue very well. In an order dated 19th
August 2009 the
NHRC directed the State Government to pay a sum of Rupees Five Lacs
(500,000) to the next of kin of the deceased rickshaw puller Mohan
Lal. However, the state government refused to comply with this order.
On 28th October
2010, the state government answered, challenging the jurisdiction of
the NHRC to pass such orders due to Section (2) of the Protection of
Human Rights Act, 1993 which specifically excludes the operation of
the said Act in J&K because it relates to entries enumerated in
List II of the VII Schedule of the Constitution of India. On 27th
December 2010, the NHRC set this contention of the state government
aside, with a detailed justification of its order15.
The facts mentioned above
indicate the level to which Article 370 is deliberately
misinterpreted. However this gets covered up in the political
rhetoric which accompanies any mention of the article. As brought out
in the Argument 3 above, the mere mention of Article 370 by the BJP's
Prime Ministerial candidate Narendra Modi, set in to motion a
cacophony of voices across the political spectrum16.
Immediately after the Parliamentary elections, with the BJP now in
power, statements both in the print and digital media set the issue
afire. Having promised the abrogation of Article 370 in its
pre-election promises, the BJP found itself answering these
statements. Official positions of various parties were now solidified
keeping in view the upcoming state elections in J&K. The ruling
NC which stood on the wrong side of an anti-incumbency wave sought to
right some of the wrongs perceived during its six year term by
reiterating its stand on Article 370 being a matter of faith to its
party ethos. The NC's Omar Abdullah (then Chief Minister of J&K,
and grandson of Sheikh Abdullah) had a veritable war of words
including over social media with the Minister of State, Dr Jitender
Singh as also Ram Madhav, senior leader of the Rashtriya Swayamsevak
Sangh (RSS), a right wing organisation and considered to be the hand
behind the success of the BJP with its right wing Hindu agenda1718.
Much before this round of war-of-words started, the BJP had been
expressing the fact that Article 370 was being used as an excuse to
stop gainful legislations of India to the common man in J&K19.
Not to be left behind, the Congress too put forth its point of view
via Dr Karan Singh (son of the erstwhile Maharaja, and now Member of
Parliament from the Congress), desperately trying to balance the
political equation as well as the opinion on the street20.
A stark example of how
politics makes for strange turn of events, unfolded thereafter.
Mehbooba Mufti, leader of the PDP, daughter of now late Mufti
Mohammad Sayeed, is now the Chief Minister of J&K, after the
demise of the Mufti. In an interview with the Editor-in-Chief of the
Tribune, Mehbooba Mufti categorically denied any possibility of an
alignment with BJP in the elections21
(Chengappa 2014). In another part of the same interview, she was
asked about the issue of abrogation of Article 370 being raised by
the Modi government. Her reply was in the negative, saying, “I
do not think they can do it...this is the relationship on which
accession is based...feel that there is no place or space in this
huge and great democracy for the people of Jammu and Kashmir to live
with dignity and honour, and we are being disrobed, then we may have
to revolt”.
As things stand, post the
elections, the PDP aligned itself with none other than the BJP, and
this coalition is still governing the state. The BJP has not changed
its stance after the coalition being formed; indeed it still seems to
be waiting to get its majority in parliament before taking the
abrogation of Article 370 to the next level22
(Firstpost 2015).
July 2016 onwards the state
has been virtually afire, with massive protests and stone pelting
taking a vicious turn. The main political parties both at the state
and the Centre are still busy doing lip service while the man on the
streets is left to fend for himself. No one is discussing the nuances
of what Article 370 has done to the state. There is no mention of the
status of refugees, mere political posturing on issues of rights of
the people, and generally a procrastinatory feeling in the air. Hence
the argument that Politics derived from Article 370 are merely
seeking to gain leverage from the debate-of-the-month, polarise
constituencies, and create political space. It means nothing to any
of them beyond that.
Conclusion
Article 370 was envisaged as
an instrument to protect a vulnerable people who were unsure of their
identity and culture; in the same instance it intended to assure
autonomy to create space in governance and empower people to decide
their future. As can be seen from the arguments above, this
delegation of power has remained mired in the clutches of only a few
and the very basis of the autonomy granted is challenged due to the
lack of accountability in public life. In the larger context of
India, whether it is the refugees from Poonch, Mirpur and
Muzaffarabad, or the case of Kashmiri Pandits in exile, the state has
failed to provide a mechanism for redress23.
The extreme case of discrimination cannot be justified in terms of
any reasoning offered by Article 370 or those who advocate it.
Instead of empowering the people to decide their own future and fate,
the article risks this very underlying reason for its incorporation
in the first place, and has been abused without any qualms24.
Therefore, the argument that it is the erosion of Article 370 and not
its creation that is helping separatism bloom, stands without merit.
It is these factors which make a strong case for revocation of
Article 370 to be taken at the highest levels without further delay
and discord.
Akbar, M J, 2002. “Clause 7,
Article 370 and a Three Nation Theory” in Kashmir:
Behind the Vale, Roli
Books, New
Delhi, First Edition, pp 135-137.
Bhattacharjea, Ajit, 1994.
Kashmir: The Wounded
Valley, South Asia
Books, p. 181.
Chengappa, Raj, 2014. “Lifting
Article 370 will further alienate valley”, in The
Sunday Tribune,
Bathinda Edition, 15th
June 2014, p.13. Editor-in-Chief interview with Mehbooba Mufti,
Member of Parliament and President of People's Democratic Party
(then), currently Chief Minister of Jammu & Kashmir.
Constitution of India,
accessed from
https://india.gov.in/my-government/constitution-india/constitution-india-full-text
. Also read Constitution of India (Updated up to One Hundredth
Amendment 2015), accessed from
http://indiacode.nic.in/coiweb/welcome.html
.
Evans,
Alexander, 1st
March 2002.
“A
Departure from History: Kashmiri Pandits, 1990-2001”
in Contemporary
South Asia. 11
(1), pp 19–37.
Joshi,
Arun, 2014. “What's the Politics behind Article 370”, in The
Sunday Tribune,
Bathinda Edition, 1st
June 2014, p.9.
Korbel, Josef, 1953. "The
Kashmir dispute after six years", Cambridge
University Press,
pp.
498–510.
----. 1966. Danger
in Kashmir, Oxford
University Press, Pakistan, p.153.
Mattoo, Amitabh, 2013.
“Understanding
Article 370”,
http://www.thehindu.com/opinion/lead/understanding-article-370/article5426473.ece
, posted on 6th
December 2013, updated on 29th
May 2014, accessed on 1st
July 2016.
Patel, Sardar Vallabhbhai,
1948. Patel
Correspondence,
correspondence to Jawaharlal Nehru, Vol X, Doc 250, 3rd
July 1948.
----. Vol X, Doc 247, 27th
June 1950.
Puri, Balraj, nd. “Analysis
of J&K PR Bill”,
http://www.pucl.org/Topics/Law/2004/jk-pr-bill.htm
, accessed on 1st
July 2016.
Schofield, Victoria, 2010.
“Special Status” in Kashmir
in Conflict: India, Pakistan and the Unending War,
IB Tauris and Co Ltd, First South Asian Edition, 2010, pp 73-78.
Singh, Karan, 2003. Heir
Apparent- An Autobiography,
Oxford University Press, India, Paperback Edition.
Snedden,
Christopher.
"What
happened to Muslims in Jammu? Local identity, '"the massacre"
of 1947' and the roots of the 'Kashmir problem'", in
South Asia: Journal of South Asian Studies, 24
(2), pp
111–134.
----.
2013.
Kashmir - The Unwritten History, HarperCollins
Publishers, India.
Thapliyal,
Major General Sheru, 2011. “Article 370: The Untold Story”, in
Indian
Defence Review,
Issue Vol.26, Jan-Mar 2011.
Varshney,
Ashutosh, 1992. “Three Compromised Nationalisms: Why Kashmir has
been a Problem”
in
Perspectives on Kashmir: The Roots of Conflict in South Asia,
Westview
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pp.191–234.
Websites/
Online web archives
http://economictimes.indiatimes.com/news/politics-and-nation/pakistan-refugees-seek-domicile-in-jammu-and-kashmir/articleshow/54486629.cms
1
Clause 7 says: Nothing in this Instrument shall be deemed to commit
me in any way to acceptance of any future constitution of India....
Clause 8 says: Nothing in this Instrument affects the continuance of
my sovereignty in and over this State....
2 Capt
Dewan Singh, Former ADC to the Maharaja, in an interview to Victoria
Schofield in Jammu, 1994.
3
“We have decided
to work with and die for India”,
Sheikh Abdullah at a press conference in 1948, after becoming Prime
Minister.
4
Constitution of India, and Constitution of India (Updated up to One
Hundredth Amendment 2015).
5
Korbel, Josef: "Though India accepted the resolution, Pakistan
attached to its acceptance so many reservations, qualifications and
assumptions as to make its answer `tantamount to rejection'.
6
Singh, Karan: “My father was stunned. Although rumours to the
effect that he might be pushed out of the state had been in the air
for some time, he never believed that even the Sardar would advise
him to adopt this course....”
7
Warren Austin, representative of the US at the UN, to the US
Secretary of State, reporting the conversation with Sheikh Abdullah.
8 “In
particular, Sheikh Sahib's manoeuvres to have a separate talk with
Ghulam Abbas fill me with misgivings...the attitude of Sheikh Sahib,
his failure to deal with the communist infiltration in the state and
the dissentions within the National Conference...both National
Conference and Sheikh Sahib are losing their hold on the people of
the valley....”
9
After delimitation of constituencies in 1988, the J&K Assembly
has 111 seats, with 24 reserved for Pakistan occupied territories.
10
Emergency provisions on grounds of internal disturbances cannot be
invoked without state concurrence; similarly the state's name and
boundaries cannot be altered without the consent of the legislature.
13
Joshi, Arun, “What's the Politics behind Article 370”, in The
Sunday Tribune, Bathinda Edition, 1st
June 2014.
14
Puri, Balraj, in an analysis of the J&K PR Bill,
http://www.pucl.org/Topics/Law/2004/jk-pr-bill.htm
.
15
Complete details of the case can be accessed at:
http://www.achrweb.org/ihrrq/issue2/order_extraordinaire.html
16
Modi, Narendra, made a statement with regard to revisiting Article
370 which set of a slew of counter allegations.
http://www.tehelka.com/2013/12/do-women-enjoy-equal-rights-in-jk/
17
“What's
the Politics behind Article 370”, in The
Sunday Tribune,
Bathinda Edition, 1st
June 2014, p.9.
18
Abdullah, Omar reacting to the statement of Madhav, Ram,
http://articles.economictimes.indiatimes.com/2014-05-29/news/50182311_1_article-370-jk-mehbooba-mufti
19 Sitharaman,
Nirmala, Spokesperson of BJP,
http://articles.economictimes.indiatimes.com/2013-12-03/news/44710557_1_article-370-jammu-and-kashmir-jk
21
Question (by Editor-in-Chief): “Would you like to align with the
BJP in the coming Assembly elections?” Answer (by Mehbooba Mufti):
“Not at all. This is the last thing we can think of”.
22
Patra, Sambit, BJP national spokesman speaking to reporters in
Jammu: "As far as the abrogation of Article 370 is concerned,
it continues to be part of the core ideology of BJP, but right now
we don't have enough numbers in Parliament to do away with it ...
but in future when we have the required numbers, we will work
towards its removal".
http://www.firstpost.com/politics/will-work-towards-removal-article-370-enough-numbers-parliament-bjp-2260292.html
23
The issue has been highlighted byAsian Commission for Human Rights
in its India Human Rights Report, October- December 2010,
http://www.achrweb.org/ihrrq/issue2/hindu_and_sikh_refugees.html
. Opposition within India has been brought out at:
http://economictimes.indiatimes.com/news/politics-and-nation/pakistan-refugees-seek-domicile-in-jammu-and-kashmir/articleshow/54486629.cms
.
24
Ibid. The abuse of Article 370 has been brought out here:
http://www.achrweb.org/ihrrq/issue2/Abuse.html
