Article 370 and 35A

As an Indian (v/s Pakistani) I am delighted on de-operationalsing of article 370 in J&K, but as a citizen (v/s State), such action (by state) invokes fear in me. What has been written is a purely philosophical and theoretical thought, fully devoid of any political, military or diplomatic consideration on which such decision has been taken. Writing is also only a perception, not judgmental,  nor declaring support or opposition to move by government.

First let us accept article 370 has not been removed, what has been done is to abrogate special power to Kashmir granted under article 370. Though no one in future will dare to reverse it but theoretically things can be undone. Article 370 was inserted in the Constitution's twenty-first part that proclaimed it to be "Temporary, Transitional and Special Provision". Article 370 provided for a special status to Jammu and Kashmir, and Clause 3 of Article 370 empowers the President to declare the special status granted to Jammu and Kashmir under the Article inoperative anytime.  Earlier special status was granted to it through the Presidential Order of 1954.The government has only revoked the special status to Jammu and Kashmir through Presidential Order of 2019. Article 370 stays very much as part of the Constitution and cannot be repealed or abrogated without a constitutional amendment in accordance with Article 368.

The decision is a brazen negation of our solemn historical obligation to the people of Kashmir codified in the Instrument of Accession and a “constitutional monstrosity.” I believed that Clause (3) of Article 370 cannot be used to emasculate the core of the constitutional guarantee and, such an interpretation is, therefore, a legal impossibility. Further, sovereign guarantee (written/ oral) is supposed to be highest in contract, but if the same is not to be honored (and there apparently to be no remedy available against it, as it is available when two private parties breach the contract.) by state what a great plight of affected citizens. Now onwards, in future, should citizen have faith in state promises and agree to do or not to do certain things? What is the guarantee that promises made today will be honored in future? However, it is not that it has happened first time; Indira Gandhi did the same in case of Privy Purse (abolished pocket money promised to ex- kings and princess at the time of merger with India) and removal of fundamental right of property (of every citizen) from constitution.

Act is being celebrated like full integration of Kashmir in India, but same celebration was done when, following Dehli agreement, article 35 A was inserted in constitution in 1954 (today it was considered a road block to integration) and it was then believed that barring what restrictions are there by way of 35A, Kashmir is now fully integrated with India.  (Remember King Hari Singh then had sought continuation of special privileges for his people on the lines of a 1927 law that denied outsiders the right to own property in the state. Article 35A, making a distinction between the permanent residents of Jammu and Kashmir and the outsiders, will also cease to have any effect. However, it remains part of the Constitution as annexure of the Constitution.) Further this process of integration with India (or in the eyes of Kashmiri, encroaching on their rights) was a continuous process since 1950 (in 1960, Power of Election Commission and Supreme Court extended to JK, in 1964 post of Prime Minister and Sadar-e –Riyasat gone and CM and Governor came into existence and so on) and nothing path breaking has been done.

Second, we are celebrating now “One India One Constitution” but such variation is available to many other states also under article 371. Sikkim has different power (RBI do not have power over Bank of Sikkim). In Nagaland, even some districts too have autonomous councils. Further Nagas are demanding, separate Flag and Constitution as per or under Naga accord of 2015 (Not made public). Goa still continues with Uniform Civil Code (enacted by Portugal’s). Many Hilly state or area and Tribal areas do have 35A like restriction about sale and purchase of land. Indians require special “permit” to enter many states and parts of territory. So why pick only Kashmir for abrogation of article 370, probably because it gets support from Pakistan and population is Muslim.  Further, will above things/ privileges will stay or will also be abolished? 

Third point, while popular national sentiment leans in favor of the decision for its utility as an integrating force, and we all (outside JK) are celebrating abrogation of article 370, but think about the method used for it, the constitutional legitimacy of the process is in question. Replacing Assembly by Governor (by amending article 367) to know will of power (as required under 370) is fraught with danger, it is precedent and centre can apply this method to any other state also. Further article 2 of constitution, which enables reorganization of state and used till date to upgrade union territory to a full state (India being a union of states under the Constitution) has been used and interpreted to make a full state as union territory. End of federalism. (We are seeing this trend in many bills passed, like new Motor Vehicle act, which may be well intentioned but a draconian law, fortunately many state are opposing or diluting the act). God forbid if such situation be fall on our state, what will be our reaction?   By invoking Article 370(3), the government has cleverly bypassed the amendment route. The process of amending the constitution is meant to be difficult to ensure the country is not run by the whims and fancies of one individual. Indians are rejoicing today because those whims and fancies are in line with an overwhelming majority of voters, but if the Supreme Court allows the government to set this precedent, they will soon come to regret it. India cannot dream of becoming a mature democracy unless constitutional morality is etched into the national psyche. It might be sleepwalking into authoritarianism again, but the world is watching.

Another aspect, of historical importance, by the principle on which partition was done, should J& K (Muslim Majority state) be with India at all?  We blame Nehru, for Kashmir problem, but why not credit him for taking JK on Indian side, in spite of being Muslim State and well connected ( geographically, and reason for cease fire in 1948) with Pakistan ?  Making article 370 a temporary one, can we assume it was Marketing tool used by Nehru to trap Kashmiri on our side. Similarly, overlooking parliamentary system of joint responsibility, we credit Sardar Patel for all good and blame Nehru for Kashmir, is it justified? We also wrongly compare Hyderabad (encircled by India from all side) situation with border state JK situation. Can we compare today’s powerful India with newly independent, weak broken and partitioned India of 1947, wherein newly created UN (post world war)having hope of resolving world disputes peacefully. First time, only by 1971, at the time Bangla Desh war, India could exercise its sovereign will and stood against world pressure. Next ideally, post partition; both should have lived like two brothers after family partition. India need not (interfered in Pak affairs and) have created Bangla Desh etc. Both have become a joke in world community, like two quarrelling family in a colony.  This is also diverting attention from real issues of citizen and putting heavy burden on economy by way of security spending.  It is surprising/ shocking that, most of the problem that existed in world in 1950’s has been solved except that of India-Pakistan.

We also take pride that whole world is supporting us. Is it real? Is it support for India or they do not wish to speak their mind under economic consideration, so as not to lose India’s vast market.  Further,  some say it is internal matter of India, some say it is bilateral matter of India. USA is ready to mediate in it and China supporting India. Turkey and Malaysia is also supporting Pakistan. US senate committee and UK PM expressing, concern over situation prevailing in JK. Will this step, will have unintended effect of making a bilateral issue (as per Shimla Agreement, excluding international groups) to an international issue? (We are inviting foreign MPs to visit JK to explain our position) Further, what is price of international support, by way of relaxation in trade policy or defense purchase and so on? A poor citizen will never come to know. 

We also proclaim and hope that such action will restore peace in area, same hope we entertained after Bangla Desh creation but it gave rise to hatred against India in Pakistan among new generation. Like that time, through this new flash point we have given legitimacy to Pakistan and Kashmir terrorist (to fight against India on the pretext of India having broken promise to Kashmiri people) and can increase conflict in the area. Earlier we had a few terrorist to deal with now we will have to deal general public of JK (which is aggrieved by this decision and feels humiliated).

Above narration were, center ( Govt) v/s state ( Govt) and India v/s world and so on. Now, again come to the question of citizen v/s State (power). Our constitution says it is “by people, for people, of people”, but slowly it is being converted as “by state, for state, of state” (You can replace state with any ruling party). Just see how over the years AADHAR has been converted from a welfare enabler provision to a surveillance tool. This honesty / transparency is being expected only from citizens. State continues to opaque and becoming more opaque- (amendment to RTI act (curtailing power of citizen to know state’s activity), amendment to FCRA (exempting political parties from any scrutiny about donation from abroad) and launch of electoral bond (the identity of donor cannot be ascertained now) both protecting political parties from expected transparency. What should be private is made public and what has to be public affair is made secretive or pushed under carpet. LONG Live Democracy.

Apart from democracy, what about economy? With present order’s over emphasis on non economic issues ( like 370, Ram Mandir, NRC and UCC and so on),  and security, where in expenses ( on law and order and security) will go up, what will be fate of economy and economic progress ? As a Citizen I am concerned. While Congress after 70 years rule became too cautious and static, BJP on the other hand due to lack of experience (or being passionate on the above issues) taking steps without understanding full consequences. Just remember side effects of Demonatiasation and GST,where in, intended result not achieved but unintended has happened. Same is happening in Assam over NRC also. We are forgetting that it is our economic power which has prevented other countries to speak against us on our move in Kashmir.  But now shall we miss the bus to become great power, like many earlier- USSR, Brazil, Turkey etc. just because of a misstep. It will be irony of history that the steps taken to show India as strong nation make it weak.   

Lastly but not the least, to conclude, if we feel Kashmiris are Indian we should have empathy for their plight and hardship for last three months. Else, if we are celebrating the act, we are only victor of their land.