Indian Defence Review

Ms.  Tharoor explained the ordeals which she had experienced when she wanted to buy a property in the valley in 2006-07. She told her interviewer how she was denied permission to buy land as she is married to a non-Kashmiri. She even told how chief minister Omar Abdullah had tried to help her out but had alerted her that her son might not able to inherit the land!

Whatever the critics of Modi may say, the fact, however,  remains that if there are certain rules or laws in Jammu and Kashmir that are not in tune with the laws prevailing in the rest of the country, it is precisely because of the Article 370, whether directly or indirectly. In its essence, the Article 370 limits on the legislative power of the Union over Jammu and Kashmir. There are strict limits to what Parliament can legislate for the state.  The state has a separate constitution and a separate flag, something no other state has. The tenure of its Assembly is six years, whereas in the rest of the country it is five years. An Indian citizen who is an ordinary resident of Jammu & Kashmir is not allowed to contest elections here. Even the Supreme Court has only appellant jurisdiction here as it is not vested with the jurisdiction of a Federal Court and can only hear cases on appeal. These provisions give a large measure of autonomy to the state.

The Article 370 article specifies that except for “Defence, Foreign Affairs and Communications”, (matters specified in the instrument of accession) the Indian Parliament needed the State Government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. Of course, similar protections for unique status exist in Himachal Pradesh, Arunachal Pradesh, and Nagaland and under Article 370 certain safeguards are  envisaged  for the backward regions of some states such as Maharashtra and Andhra Pradesh  in the  matter   of development  and  also in the matter of employment  opportunities  and educational facilities for the residents of that area. But the difference lies in the fact while the Parliament amend these laws on its own, in Jammu and Kashmir nothing can be done without the consent of  its Assembly.

However, it must be noted that the  incorporation of Article 370 in the Constitution of India was purely a temporary measure and that it was incorporated in a specific situation that no longer remains valid. In fact, when in the wake of aggression from Pakistan on October 24 1947, the then Maharaja Hari Singh signed an “Instrument of Accession” on October 26, 1947, he had empowered  the Union of India to have absolute jurisdiction in respect of three subjects namely defence, foreign affairs and communication. The idea was to save Kashmir from Pakistan. The Maharaja and the Government of India were clear that as regards the full integration was concerned, the final decision would be taken through the “Constituent Assembly” of Jammu and Kashmir, and that till then the state will have a special status as enshrined in Article 370.

Some historians argue that the Maharaja would not have minded the unconditional accession with India but for Nehru. The then Indian Prime Minister wanted the power to be handed over to late Sheikh Abdullah, not to the Government of India as such. And it was on Abdullah’s request that it was agreed that the State’s Constituent Assembly would take the final decision on the accession. Be that as it may, after the execution of the Instrument of Accession, the Constituent Assembly of Jammu & Kashmir on November 17 1956 “adopted, enacted and gave to themselves (the people of Jammu and Kashmir) a new constitution which they called the Constitution of Jammu & Kashmir” and made a written commitment in the Preamble to its newly framed Constitution that “Jammu & Kashmir is and shall be an integral part of the Union of India.”

As historian Suryakrishna Pillai rightly argues, “There was no question of retaining Article 370 in the Constitution after the Constituent Assembly acting on behalf of the people of Jammu & Kashmir finally decided that Jammu & Kashmir was an integral part of India. The matter ended there for good and the only task left before the Centre was, and still is, to amend the Constitution for abrogating Article 370 and to repeal the constitution of Jammu & Kashmir which grants special status to that state.” But unfortunately, the Nehru government “evolved the obnoxious and unwise policy of appeasement of Muslims in the Kashmir valley and thus committed the blunder of making a non-issue an issue. It is also true that the subversive elements were active even at that time, both in Pakistan and India, but who prevented the then Prime Minister Nehru to crush them with the help of the armed forces which were always at his disposal. Nehru went on committing one blunder after another. Even today the Centre is pursuing the same cowardly and conciliatory policy towards the enemy”, according to Pillai.

The most important reason cited in favour of the retention of the Article 370 is that but for it India will not be able to retain a Muslim majority state. But if that is so, how come Christian majority- North eastern states and the Sikh majority-Punjab do not have special Articles for themselves? The question is also not related to the principle of secularism, something that the “secularists” point out whenever the question of abrogating this temporary Article arises. In fact, contrary to the spirit and content of the Indian Constitution, there is no mention of the word of “secularism” (or for that matter socialism) in preamble of constitution of Jammu and Kashmir. And it is well known how the non-Muslims in the State have been suffering in the state over the last few years.  The real problem in Kashmir today is the growing “Islamisation” of the Valley, which, in turn, makes any negotiated settlement of the Kashmir issue almost impossible. An “Islamic Kashmir” will have nothing to do with India, whether there is Article 370 or not.

Over the years, Kashmir has been witnessing what Bangladeshi scholar Abu Taher Salahuddin Ahmed says are three principal trends – Indianness, Kashmiriness and Muslimness. The Indianness has been propagated by the federal forces, be it the Central Government or national parties such as the Congress and the BJP. However, the problem in the State is due to the tussle between those believing in Kashmiriness and those loyal to Muslimness.

Kashmiriness is an offshoot of the much-talked about Kashmiriyat, which, while co-existing with Indianness, talks of inclusive or composite identity, binding all groups together and not offending any section. No wonder why despite being a Muslim-majority area, beef-eating, until recently, was virtually non-existent in the Valley.    Of course, some scholars now point out that there were always differences between Muslims and Hindus (essentially Kashmiri Pundits) in their interpretation of the concept of Kashmiriyat. But undeniably, the concept did promote coexistence. Majority of the Kashmiri Muslims, therefore, had no problems with the Hindus or for that matter with the Buddhists.  And, the key factor to the success of Kashmiriyat was the fact that the overwhelming majority of the Kashmiri Muslims believed in Sufism or what is said the “Rishi tradition” that believed in saint and shrine worships. Of course, it was greatly facilitated by the fact that as was the case in other parts of the subcontinent, Muslims were essentially converts from the fold of Hinduism.

In contrast, the “Muslimness” always advocated the exclusive concepts in the Valley. Promoted by the Wahhabi and Ahl-i-Hadith sects, this school relies more on the authority of the Quran and Hadith and is totally opposed to the concept saints and shrine worships. This tradition or school has always been in minority in Kashmir, but has been there always. It was behind organisations such as the Muslim Conference and the Kashmir Jamaat (KJ).

Needless to say that almost all the separatists and terrorists, including the so-called moderate elements like the Hurriyat Conference, belong to the school of Islamness. They have nothing to do with India. No amount of appeasement will ever impress them to stay with India. They believe in the theory of “Kashmir for Muslims” and their essential argument is that they cannot co-exist in a Hindu-dominated India. Viewed thus, the separate treatment of Jammu and Kashmir through Article 370 has increased the distance between the state and rest of the country, not brought them closer.

In fact, as political analyst Prashanth Vaidyaraj argues,  Article 370 has not been beneficial to the people of the state themselves either.  “As the People representation act does not apply to the state, the center has no power to enforce delimitation of the constituencies in the state. As a result, even though Jammu has more population, has a larger area and more voters, Kashmir has more assembly seats. While Kashmir has 47 assembly seats, Jammu has only 37. If proper delimitation takes place Jammu should have 48-50 seats and Kashmir would have 35-36 seats. There is no record of the number of OBC’s in the state. Mandal commission report has not been implemented and hence the backward classes here have no reservations in various fields. Deprived sections of the society like SC/STs did not have any reservation in J&K till 1991. Though in 1991, they were provided reservation in employment and education they still do not have any representation in politics and in the state assembly. It’s surprising that the Dalit and ‘Bahujan Samaj’ leaders have been silent on this”.

Vaidyaraj also has a valid point when he says that “It’s worth noting that the per-capita subsidy provided to J&K is 16 times more than West Bengal and 12 times more than Bihar. Allocation of financial resources for the Kashmir valley varies between 65-69 percent, whereas both Jammu and Ladakh divisions put together get about 31-35 percent. J&K also gets special employment packages and prime ministers packages regularly but there is no accountability as none of this information is made public or is available under J&K’s RTI Act”.

This brings to the last point in this essay whether the Article 370 can be abrogated by the Government of India? As has been pointed out earlier, the Article in strict sense of the term died the very moment the Constituent Assembly of Jammu and Kashmir was wounded up in 1950s. According to Pillai, Article 370, which according to part XXI of the Constitution of India, was a temporary, transitional and special provision ought to have been firmly annulled either by invoking Presidential power under Clause (3) of the same Article or through constitutional amendment under Article 368 read with Article 355. When the Instrument of Accession was executed on October 26, 1947 and the Constituent Assembly acting on behalf of the people of Jammu & Kashmir accorded final sanction to the said accession on November 17, 1956, the Kashmir chapter was closed for ever. “Why a closed and concluded matter was made a subject of controversy again? Clause (3) of Article 370 of the Constitution of India clearly states, ‘Notwithstanding anything in the foregoing provisions of this article the President may, by public notification, declare that this article shall cease to be operative only with such exceptions and modifications and from such date as he may specify’”, he argues.

Siddharth Singh is Editor (Views) of the Mint newspaper has also a way out. He writes: “In May 1954, the President used his powers under Article 370 to extend a number of provisions of the Constitution of India to J&K. Among these was a proviso to Article 368—the feature that allows amendments to the Constitution—which limited its applicability to J&K. That is a red flag waived against any attempt to repeal Article 370.

“Again, this is a questionable interpretation. The order is mere executive order that applies to J&K and is not a constitutional amendment. It has no bearing on what exists in the Constitution and what can be amended. There are, of course, limitations to what Parliament can amend. In addition, the Supreme Court through the basic features doctrine has imposed limitations on this power of Parliament. The basic features of the Constitution (for example, the secular nature of the Republic and the separation of powers) cannot be changed.

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Article 370—a temporary provision—is certainly not a basic feature and as such there ought to be no bar against its repeal.”

Farooq Abdullah is, thus, wrong that Article 370 is permanent. It depends on the political will of a central government to abrogate it. But he may be right that no central government, even if it is led by Narendra Modi, will dare to do so.