The penchant for rabble-rousing

By K.N. Pandita

In early August complete hartal for two days was observed in the entire Muslim belt of J&K State. Kashmir Valley is used to strikes in past decades but Sunday strike had one peculiarity. It was prominently noticeable in the Chenab Valley Muslim belt. That indicates deviation of this region from its known behaviour to calls from valley leadership in the past.

It is after a long time that the region has witnessed a strike of this magnitude with protesting crowds swarming in rallies and marches in almost all towns dotting the entire region called “Greater Kashmir”. It is for the first time after the holy relic theft episode in 1962 that all factions, identities, groups and political parties in the region have come together in unison to show solidarity for a particular cause which appears of political nature but carries strong communal underpinnings. Participation of Sikh community in Kashmir in rallies like this also in the past is the ploy for survival in not a very congenial atmosphere. Compulsion for survival has not to be confused with conviction.

Both factions of the Hurriyat, JKLF, Jamat-i-Islami, Ahl-e-Hadith, Wahhabis, Salafis, pro-Pakistanis, pro-ISIS, NC, PDP, Congress and many other fringe groups, one and all, forgot for a while their long and frozen rivalries. They came together in unison to denounce attempts of watering down Article 35-A of the Indian Constitution. The NC patriarch, true to his word, not only walked in the footsteps of the Hurriyat but also went further and rubbed shoulders with his arch political rival, the PDP chief. No violence was reported from anywhere. This should dispel the erroneous concept that Kashmiri leaders and social figures are seldom capable of forging unity on an issue they consider vital to the interests of majority community of the region.

These demonstrations were to oppose any move to abrogate Article 35-A of the Indian Constitution. As A.G. Noorani puts it in an article published in the Dawn, “Article 35-A of India’s constitution says that no law for Jammu & Kashmir, existing or future, shall be void as being violative of the fundamental rights if it touches “permanent residents” or confers on them “special rights” on government jobs, acquisition of immovable property, settlement in the state or rights to scholarship or other forms of government aid. The Supreme Court is asked to declare it void for violation of “the basic structure of the constitution”. This doctrine only applies to constitutional amendments. It cannot apply to the constitution itself. Article 35-A was inserted into the constitution in 1954 by a presidential order made under Article 370 on J&K’s autonomy”.

The petitioner has sought the views of the Supreme Court on the validity and feasibility of this Article in the light of various other constitutional provisions like the Constitution, the Directive Principles of State policy, the Charter of Human Rights and the proviso related to checks and balances. In all known democracies, the Constitution is subject to amendments and reviews and that imparts the element of dynamism in its democratic veins.

It has to be noted that the Constitution of the State of Jammu and Kashmir nowhere mentions about the inviolability of Article 370 nor is there any mention of Article 35-A that the State’s special status (a la Article 370) will not be abrogated.

The point is that those who protest against abrogation of Article 35-A indirectly concede State’s accession to the Indian Union as valid because their protest is against partial erosion of the Constitutional proviso. In that sense all those who came out in a multitude to make a show of protest are admittedly pro-accession. This also is the view of the Supreme Court. Had it not been so the court would have dismissed the petition in its first hearing on the plea that Article 35-A is above judicial review and outside the ambit of parliamentary and judicial reach? Even the President of India has to keep his hands off the Article… We can ask, “Is it an Act framed by human beings or is it the gospel truths come down from the heaven?” No democracy in the world guarantees untouchability of its constitution.

Obviously, political parties and groups of all hues have united to bring pressure on the Supreme Court to reject the petition. The Constitution of India disallows any attempt or mechanism undertaken to influence the Supreme Court, particularly when a case of sensitive nature is pending before it for hearing. The Supreme Court does not go by public claptrap and protests; it goes by what the law says. Suppose ten million Indian citizens bring out demonstrations and protest rallied demanding the SC abrogate both Article 370 and 35-A, will the SC succumb to these demonstrations and set aside the law of the land?

Separatists, secessionists and political parties of all hues (excepting the BJP), civil society organizations¸ bar association and a host of other social groups or organizations have strongly supported the strike. Their contention is that Article 35-A reinforces Article 370 as the link between India and the State of J&K. They call it a bridge between India and the State and abrogating the Articles means breaking the bridge meaning separation of the State from the Indian Union. It is further argued that through the Instrument of Accession Maharaja Hari Singh had given only three heads in the control of the Indian Union, namely defence, communication and foreign affairs.

It is true. But it is also true that the Indian government never asked the State Government to implement various laws passed by the Indian parliament as long as Article 370 was in force. It is the State government that approached the Indian government for extending a large number of Acts passed by the parliament to the state and also obtained the endorsement from the State legislative assembly. Sheikh Abdullah appointed a three-member committee to examine and report which of the Union laws were arbitrarily imposed on the State so that these are vacated. The report of the Committee was that out of 198 laws passed by the parliament 196 were adopted by the State government with the concurrence of the legislature and the two remaining pertained to very minor matters about local taxation.

Thus we find that it is the State government that has eroded the clauses of the Instrument of Accession signed by the ruler of the State. It is unjustifiable on the part of political class to bring the onus to the doorsteps of the Union government.

Addressing this discourse without bias, it has to be understood that we are following a democratic dispensation in our State. It means that the state cannot remain static and frozen where it was way back in 1947. Every dynamic State, particularly a democratic one, must deliver so that it is able to win the confidence of the people at large. Winning the confidence is possible only when people see and feel that the standard of life is improving. It is unrealistic to think that the State and life have to remain static for all times.

It is to be noted that the State Government is the foremost culprit in throwing Article 370 and the spirit of the State Subject law to winds by allowing thousands of foreigners from Burma called Rohingyas to settle in Jammu in a bid to change the demographic complexion of Jammu region. They have been provided all such documentation as entitles them to claim state citizenship. This stands in dark contrast to the treatment meted out to lakhs of refugees from PoK since 1947. The discrimination on religious basis is eloquent and self-speaking.

Finally, it has to be said that Nehru was the architect of Article 370 against the wishes of many Congress leaders including the Father of the Indian Constitution Dr. Ambedkar who had told Sheikh Abdullah that he was not going to make another Pakistan in India. It is also true that Nehru had told the parliament in a cryptic remark about Article 370 that “ghiste ghiste ghis jaega.” The petition before the Supreme Court is not of abrogating any of the two Articles. It asks the Supreme Court to adjudge the legal and constitutional validity of Article 35-A. If the SC finds it valid, it says and if not, it must go. There are no two opinions about it.

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