Who abused Article 370 and how?

By K.N. Pandita

Recent constitutional and administrative reforms in J&K have caused some concern and apprehensions to the Muslim population of the State especially the Valley. Their main argument is that the law makers had understood the necessity of granting J&K a special status in the Indian Constitution.

Let us debate the issue impartially. What according to Kashmir leadership made J&K special or different from other princely states of India in 1947? India declared she was a secular state. The JK Constitution accepted secularism as the political principle of the State. Therefore religion does not make it a special State. However, notwithstanding this, what exactly lay at the bottom of the concept of “special status” was the religious factor. No amount of hypocrisy can disprove it.

In strategic terms, the entire Himalayan foothill states, Kashmir and eastwards, are of strategic importance because most of these have common border with China. None of the Eastern States was granted anything like one to J&K.

J&K has a long border with Pakistan. So has Rajasthan and Punjab. These states were not given a special status on the count of strategic factor.

J&K has its peculiar culture which is a hybrid of Hindu, Islamic, Sikh and Buddhist cultural traits. True, but name a single region in the Indian Union which can claim to have unadulterated cultural ethos. Entire India is a mosaic of cultures and languages, and J&K cannot claim uniqueness.

The last and perhaps the most accepted justification by the law makers in granting J&K a special status was that a Muslim majority state could face pressures from the Indian Union with a Hindu majority. Well, the answer is that religion does play a significant role in the politics of our country. If special status was provided to the State to safeguard the interests of the State Muslim community from the pressures from Hindu majority of the Indian Union, the same principle should apply to the small Hindu, Buddhist and Sikh minority in the State. Surprisingly and selfishly, the State Constitution does not recognize any community in J&K as a minority community. In a very clever way, the government of the state absolved itself of the responsibility of caring for the minority communities in the State. Hence we find that the logic of majority syndrome is not acceptable as a reason for special status for the J&K.

Article 370 giving J&K a special status was incorporated into the Indian Constitution in 1949 as a result of majority vote in favour of the measure. There were some dissenting voices also. It means the opinion of the majority of parliament members voting in favour of the proposition had to be respected. By the same analogy, 2/3 majority in the Parliament passed a resolution on 5 August 2019 endorsing revocation of two clauses of Article 370, and, as a consequence, rescinding of Article 35-A. It also endorsed by majority vote the presidential order of bifurcation of the State and creation of two Union Territories of Ladakh and J&K. It shows that the constitutional propriety has been strictly adhered to. We fail to understand why the opposition failed to make note of this fact. Did they expect the government to use two different yardsticks while dealing with identical subject?

We all know that Article 370 was called a temporary measure. The hue and cry raised by the opposition now means that in the eyes of the opposition it is not temporary and is of immense importance to the State. Fine, if that is the case, why did not the Congress regimes make it a permanent Clause of the Constitution when it had landslide majority in the parliament? It did not even once try to convert it from temporary to permanent status? This clearly shows that some political parties that were interested in perpetuation of uncertainty about the Article 370 had vested interests which they served by cultivating a particular constituency or a vote bank.

Obviously, the real and the only purpose of keeping the temporary provision intact for seven decades was to allow the majority community to dictate terms and have the upper hand in every walk of life including the developmental programs in the erstwhile State of Jammu and Kashmir.

Though there was resentment among the minorities of the State against the continuance of this highly controversial constitutional provision, yet in the larger interests of peace and tranquility in the country and the region, they reconciled to the perpetuation of the Article 370 and its clandestine enclosure called 34-A.

The fault did not lay in Article 370. It lay in how the article was misused. The State government made discrimination of non-Muslim communities and the other two regions of the State as the target of their communal policies. Communal agenda was carried out very subtly. For example, knowing that there were discrepancies in the delimitation of constituencies or that Gerrymandering had been resorted to, the State government got a bill passed banning review of delimitation till 2026.

Successive State governments were subtly pursuing the Greater Kashmir concept and the Chenab Valley identification is its one manifestation. The law that deprives a daughter from state subject-hood after her marriage with a non–state subject husband is another example of blatant discrimination. The molding and reframing of rules, regulations, procedures and practices in a way that only the Muslim majority enjoyed its benefits had become an instrument with the local governments. Partiality in admission to professional institutes, distribution of scholarships, harassment of outside students and overlooking promotions in the case of non-Muslims or partiality in their postings etc. these and a hundred other ways were invented to give the non-Muslims a second or third class treatment. All these atrocities were resorted to by taking a cover under Article 370.

It will also be noted that the blatant violator of Article 370 was the State government itself. During the regime of Mehbooba Mufti, once in reply to a question, she said that 4-5 thousand Rohingyas have come to the State and they were staying in Jammu. This was a blatant understatement because actually nearly 30-40 thousand Rohingyas who had crossed into West Bengal were allowed (actually guided and piloted) to come and settle down in Jammu and not Kashmir. They were provided identification cards, ration cards, accommodation, aadhaar cards and many other facilities. As against this the refugees of 1947 partition, who came to Jammu and have been living here ever since have not been given PR so far. They are not recognized as citizens of either India or J&K State. This comparative study explains that the State would not care a fig for the constitutional provisions where the interests of the Muslims were involved. The militants who had gone for training to PoK, stayed there long, married there had children and returned to the valley along with entire tribe and were given state citizenship, amnesty, jobs, sustenance allowance and many more facilities. Was it not a blatant violation of the special status of J&K? The Mufti government wanted to apply ointment to the wounds of the militants. But for the exiled Pandits she had the cryptic remark that they can go back to their homes.

This was the Kashmir where Gandhi had seen a ray of hope and this was the Kashmir which Nehru called the crown on the head of secular India. In Nehru’s secular India, entire Kashmiri Pandit community has been living as refugees in their own country for last thirty-two years. This is the freedom which was brought to the Kashmiri Pandits by our great freedom fighters against colonial rule.

All this fully justifies the reformative and visionary steps which the Modi government took to stem the rot in the State. Given the seventy years of communal history of NC or Congress or PDP, it should be clear that the defunct State of Jammu and Kashmir will never be revived. It has international ramifications which, to be precise, is taking back the part of the state still illegally under the occupation of Pakistan and China. Sensible and out-looking Muslims everywhere in Kashmir, India, Pakistan or anywhere in the Muslim world will concede that the Modi government has pre-empted the conspiracy of turning Kashmir into an Islamic theocratic State.

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