Unravelling the Discourse on Kashmir

Government of India’s decision to alter the constitutional status of Jammu and Kashmir and break the state into two centrally governed territories has attracted applause as well as criticism. The decision has been challenged before the Supreme Court. A five judge constitutional bench will determine the constitutional validity of the Presidential Orders and the Reorganization Act in October.  But a lot remains to be discussed and clarified with respect to the past, present and the future of Jammu and Kashmir’s constitutional position, politics and the multifarious approaches of understanding these.

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To begin with, one needs to understand that there was nothing ‘special’ about the constitutional status of Jammu and Kashmir. The association of the word ‘special’ with the state of Jammu and Kashmir should have been revisited long back, at least in the academic circles. The only thing that was ‘special’ and rightly so, was the Constituent Assembly’s response to the wishes of the erstwhile Maharaja of Jammu and Kashmir, recognition of the State’s history and political inclination of the masses.

The inclusion of Article 370 in the Indian Constitution was representative of the fact that India’s federalism was accommodative and alive to political, geographical and historical realities. This should have never been understood as an aberration to the federal scheme, but hailed as an act which trusted India’s commitment to democratic ethics.

Kashmir and parts of Jammu have been under restrictions, with a massive crackdown on communications, for more than a month now. The atmosphere within the state and particularly Kashmir remains suffocating. While everyone in the country debates ‘Kashmir & Article 370’ the people and the media of Kashmir remain gagged. What contributes to the agony and pain of the people is that the discourse is one sided and misinformed.    

In the current atmosphere the central government has been elevated to the stature of a ‘guardian angel’ for the people of Jammu and Kashmir, seeking to pull out the State from ‘backwardness’, ‘miss-rule’ and ‘family raj’. The Government has made assertions about lack of jobs & industry, absence social justice legislations and even low land prices. These assertions have been rebutted in and outside the parliament by opposition leaders, civil society members and sections of the media. While the ‘backwardness’ is debated, nobody can deny Delhi’s love for the two families who have never left any stone unturned to further Delhi’s interest in the State.

What is most unsettling is that these mainstream parties, which have always been there in support of Delhi, risking their own credibility amongst the masses, have now been equated with the separatists. With numerous political leaders & workers, including leaders of trade and business organizations detained, the government seems to have questioned their political choices. This may change the political landscape of Kashmir which may not necessarily guarantee peace and stability in the region.

While change of leadership in Kashmir may have been on the Government’s agenda, altering the constitutional position of the State wasn’t the only way it could have been done.

The Temporary Nature of Article 370

Everyone seems to be beating the drums about how a temporary provision of the Constitution survived seven decades. Article 370 was enacted with the Constitution of India and came into force in 1950. It was placed along with the temporary and transitional provisions, because it vested the responsibility to finalize the state’s constitutional relationship with the union, on the Jammu and Kashmir’s Constituent Assembly, which was yet to convene.

Extension of provisions of the Indian Constitution with necessary modifications in their application to the state of Jammu and Kashmir was to be done with concurrence of the state’s Constituent Assembly, for matters that were beyond the scope of the Instrument of Accession. A temporary power was also given to the State Government to allow extension of provisions that fell within the three broad subjects provided in the Instrument of Accession. Justice A.S Anand also pointed out that the ‘temporary’ provision doesn’t mean that the article can be abrogated, modified and replaced unilaterally.

The second facet of the temporariness, is based on the amenability and revocability of the Article. The provision itself provided for the process to modify it or cease its operation. The role of the state constituent assembly was again pivotal in this regard, as its recommendation for either modification of the article or rendering it inoperative was required.

Therefore the provision had become permanent over time, particularly after dissolution of the State Constituent Assembly. It remained a ‘temporary and transitional provision’ perhaps because successive governments at the centre used it conveniently to extend provisions of the Constitution of India and other Central Statutes to the state of Jammu and Kashmir.   

Permanent Residency and the State Constitution    

Jammu and Kashmir is not the only state which had specific provisions for the permanent residents or domiciles. Other states also have such provisions, which are enacted upon legitimate exercise of powers. J&K had a local set of laws that protected the interests of the permanent residents by reserving for them, the right to buy immovable property, access to government jobs and scholarships. This was in the form of two notifications issued by the then Maharaja. The importance of these laws was recognized through the Delhi Agreement of 1952 and given protection through Article 35A, which formed part of the 1954 Presidential order, now superseded.

These notifications had come about only after an agitation led mostly by Kashmiri Pandits, Dogras and the affluent Muslims, who urged the Maharaja to protect interests of the local residents, in light of outsiders setting in the State during the 1920’s.

Article 35 A was a recognition of these concerns, which perhaps remain true for all isolated hilly communities.  It merely protected the state laws on employment, acquisition of immovable property, scholarships or other forms of aid. If a state law existed on these subjects, it was protected from challenge on the grounds of discrimination, but beyond it the protective umbrella of Article 35A did not exist.

The High Court of Jammu and Kashmir also looked into the Permanent Resident Law from the angle of gender equality. The court observed that Article 35A talks of protection from any challenge, to the state laws on permanent residency, by a Non-Permanent Resident on the ground of inequality. The court made it amply clear that Section 10 of the Constitution of Jammu and Kashmir guarantees ‘right to equality’ and therefore the question of absence of inter-se equality does not exist.

Even then if there were concerns with regard to the definition of ‘Permanent Residents’, the same could have been addressed. The Constitution of Jammu and Kashmir provided the State Assembly power to amend this definition.

The State Constitution & Flag

Concerns have also been raised with regard to the state having its own constitution. The call for ‘one nation one constitution’ flows from a flawed understanding of federalism. In a federal structure there exists a division of powers between the federal government and the federal unit. In the case of Jammu and Kashmir the division of powers was elucidated by the Instrument of Accession.  Justice Nariman observed in Santosh Gupta’s case, that the State of Jammu and Kashmir has its own separate Constitution and it is through this Constitution that the State is governed in all matters, except those which have been “surrendered to the Union of India”. Therefore reflecting that the power has been given to the Union of India and not the other way around.

The judgement proceeds to point out that the Constitution of Jammu and Kashmir and the Constitution of India do not share equal status, as the State remains an integral part of the Union of India, something that the Constitution of Jammu and Kashmir explicitly provided for.

It was through this Constitution of Jammu and Kashmir, that the Instrument of Accession was ratified. It declared in the preamble that, the Constitution will further define the relationship of the State with the Union. It provided under section 3 that Jammu and Kashmir ‘is and shall be’ an integral part of India, a claim that has been questioned by many in Kashmir. The Presidential orders of August 5 and 6 blatantly disregard this relationship that was based on consent, at least of the Constituent Assembly of the State.

Similarly the State Flag of Jammu and Kashmir was a reminiscent of the struggle years of oppression. It symbolized the sacrifices of the people and in the words of Mir Qasim ‘the unity of the peasantry and the working class’. Bringing the flag down while unilaterally breaking commitments of the past doesn’t look good for a nation that prides itself of being the world’s largest democracy. There was absolutely no reason for anyone to feel insecure about either the state Flag or the state Constitution. They weren’t representing a sovereign state, and neither were they claiming to be superior to the Tricolour or the Indian Constitution.

What does the change mean to the people of Jammu and Kashmir

There is confusion and chaos in most parts of the state. People are apprehensive about what will happen next. People are thinking if there is more to come. But it is important to analyse whether or not this changes anything on the ground; whether or not this brings peace and development and more importantly whether or not it integrates people of Jammu and Kashmir with the union.  

One needs to understand that the change affects only those, who believed that Jammu and Kashmir can share a constitutional relationship with the Union of India on the terms of the Instrument of Accession. It affects people who believed that the state could be a part of the Union with some autonomy. It affects everyone who argued for accession. But it certainly does not matter to individuals and political organizations who have been arguing to the contrary since 1947. The change in Jammu and Kashmir’s constitutional status does not perhaps mean a thing to people who have questioned the instrument of accession in the first place. For people who thought that the state flag and the State Constitution furthered a unionist agenda, Article 370’s absence does not make a difference. Therefore what is clear is that we may lose the unionist voice from Kashmir. 

One also needs to take note of the response from Jammu and Ladakh. Many, including the BJP leadership, are apprehensive about the fallout of this change. BJP leaders from Jammu and Ladakh seem to have now awaken to the need for protecting the interests of region. Some have suggested that the State could bring a law to protect agricultural land, while some are now urging for tribal status to Ladakh in order to protect its distinct culture. One fails to understand how the opposition to the protection offered by Article 35A goes hand in hand with such demands.

Article 370 and the Presidential Order of 1954, which provided for Article 35A, were negotiated, debated and discussed. These were remarkable features of the India’s federal character and represented the ideals of self-determination and democracy. These provisions signified anything but a ‘historical wrong’.

(The author has a Masters in Law and is currently working as a Legal Research Fellow in New Delhi )

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