“Abolition of Article 370 : An experiment to resolve the chaos in the valley”

union territories of jammu and kashmir and ladakh

Well, current work in process legislative developments in reference to the state of J&K may not guarantee an absolute resolution of the Kashmir conflict however in many ways it’s a loud and clear message from the Lal-Qila to Lal-Chowk, the 70 old year status quo has had to end. The move could at best be an experiment by New Delhi, be that as it may, is a hallmark of Modi-Shah’s style of approaching the gravest internal issue the nation has been grappling with since our liberation from the colonial rule. Since the intense security build up began in the valley along with tourist evacuation advisory over the last week, speculation indulgence surged and in the absence of any response from the central government, as usual Kashmiri based main stream politicians whose shops are imminent for shut down, promptly seized the opportunity to spearhead a fear mongering campaign and Congress acted as the satellite station in Delhi. Since the intervening night between 4th & 5th of August followed by country’s home minister rising in the Rajya Sabha which many prefer to call as virtual surgical strike on Kashmir by Amit Shah and what has been unfolding thereafter is available in the public domain, so little mention needed.

A section within proponents of the development with a kind of hawkish mind frame choose to term it as a decision by which India stamps it authority over Kashmir which may be unwarranted, yet government of the day deserves its due credit for such a bold initiative which was never been imagined by any previous regime including several non-congress government(s) in the centre. In fact, in 90s during VP Singh govt which was supported by BJP, the insurgency in the valley was at its peak so let’s be careful, it’s not a binary between BJP and Non-BJP. Opponents to the reorganization of J&K state says abrogation of Article 370 was in BJP’s manifesto and hence they have done it not that as a party it cares about common Kashmiris. Let’s extend benefit of doubt to those who are selling this story and seek clarification do they subscribe to the views of Congress and left that “Kashmir is actually a good problem to have”. These parties actually endorse the idea of romanticizing the blunders committed in the past and masquerade as the only genuine savior of innocent Kashmiris.

Strangely in spite of our sovereignty has persistently been challenged by certain vested interest groups operating from inside on the abatement by an enemy neighbor and the same was allowed to continue just for political expediency of vote bank politics, obsession for appeasement and most prominently lack of will power to resolve the monstrous problem. Instead the strategy to execute anti national activities were facilitated openly and the nation was misled by referring to the restrictions imbedded in the legal architecture behind the J&K accession (i.e. Instrument of Accession, Letter from the Governor General attached to instrument, J&K Constituent Assembly, J&K Constitution etc.) to India by successive governments post-independence.

Quick background on much talked about Article entangled in endless controversy

Article 370 of the Indian constitution was an article that gave special status to the state of Jammu and Kashmir. The article was drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After the J&K Constituent Assembly later created the state’s constitution and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution. This article along with Article 35(A) defined that the J&K state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to resident of other Indian states. As a result of this provision, Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.

Article 370 embodied six special provisions for Jammu and Kashmir:

  1. It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
  2. Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.
  3. Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
  4. The ‘concurrence’ was only provisional. It had to be ratified by the State’s Constituent Assembly.
  5. The State Government’s authority to give ‘concurrence’ lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.
  6. The Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly.

Once the State’s Constitutional Assembly convened on 31 October 1951, the State Government’s power to give `concurrence’ lapsed. After the Constituent Assembly dispersed on 17 November 1956, adopting a Constitution for the State, the only authority provided to extend more powers to the Central Government or to accept Central institutions vanished. This understanding of the constitutionality of the Centre-State relations informed the decisions of India till 1957, but that it was abandoned afterwards. In subsequent years, other provisions continued to be extended to the State with the ‘concurrence’ of the State Government

It’s no argument that military operation is the only resolution to the Kashmir conflict but the truth to be acknowledged is simply to keep nurturing a mess created earlier without anticipating its repercussion was seldom in the best interest of the nation. The constitutional provision which actually alienated more than integrating Kashmir with the rest of India was ironically celebrated as a step by Nehru govt to give a special status to the people of J&K. Not venturing into further analysis on the topic being matter of wide public debate.

However, what is forthcoming from this monumental decision to abrogate article 370 which technically may be seen as J&K got stripped of its special status. It’s not just that, but creation of the 8th & 9th union territories by reorganizing the state of J&K, current government actually redraws J&K map. This also paves way for greater integration, letting Indian laws apply to J&K, doing away with state flag, separate constitution & anthem, removing the anomaly in inheritance entitlement in the eventuality of a Kashmiri woman marries outside J&K, same law of property ownership across India so on so forth. Not surprisingly the lobbys did not get consulted and had no clue of what so ever before the precise execution of such a terrific planning are making noise from the roof top that it’s a betrayal by New Delhi and the interest of people of J&K have been impaired. To build on the narrative they further say there was no persuasion and no pre-consulting rather it was thrust on them and secured the 2/3rd majority in the upper house by coercive tactics.

Take away for a common Indian,

  1. One state should not and cannot be different from another. We must not have 2 kinds of states (Principle of Equity)

 

  1. Supremacy of Indian Constitution & Laws framed there under

 

  1. Primacy of Central Government in accordance with the spirit of cooperative federalism

 

  1. All round development of erstwhile J&K State by identifying the real areas of concern and addressing in a targeted manner

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