–Written By Akhil Saxena
Campus Law Centre, University of Delhi
The people were living their not so normal lives, the valley bore a zestful look, streets were being flooded with tourists and pilgrims were being the torchbearers of employment for the youth. The valley had just recouped from a sudden dismissal of the government and subsequent imposition of governor’s rule, the future looked frenzy. Then came the government’s decision to revoke A-370 and A-35A. The historic decision as many perceive was accepted with applauds and chest-thumping speeches, thus deciding the fate of the Kashmiri’s in a jiffy. Kashmir has been under lockdown since this historic decision of the government. Heavy mobilization of the army and crippling the state communication system, is the government’s way to neutralise the voices of the voiceless. The government is fearful, the militants backed by the Pakistan military might want to alter the peace that was prevalent in the valley. Or a mobilization like we saw after Burhan Wani’s encounter might affect the peace (aman) that the government envisages. The ban on media and reporting, imprisonment of all the political figures, no means to contact the dear ones, state judiciary failing to decide on cases pending before it, Supreme court taking time to decide on the rights of Kashmiri’s, has killed the democracy which India lived for, fought for and laid its freedom struggle upon. To understand the repercussions, one has to look back to the times when India gained Independence. The princely state of Jammu and Kashmir ,was ruled by Maharaja Hari Singh ,a hindu ruler ,who governed over majority Muslims.The times changed drastically when Pakistan was carved out and it became a bone of contention between the two nations who had gained Independence recently. Maharaja Hari Singh was left with no choice but to seek help from India when invaded by the Afridi tribe, being helped by the Pakistani army. The instrument of accession was signed and J&K was given special status as promised. The decision to include Article 370 in the constitution of India before it was adopted, despite protests from notable members of the constituent assembly like Ambedkar, was taken to smoothen the integration of Jammu and Kashmir with the rest of India. “Temporary” was the word added to convince the public and politicians that Kashmir and India shall get married with consent, a plebiscite had to take place. As we look on, the situation on the ground never laid down the path for a peaceful merger.
LEGAL ASPECT Media’s way to portray the said decision has been distraught and ill-informed. Little do people know that A-370 has not been abrogated but The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by President Ram Nath Kovind “in exercise of the powers conferred by Clause (1) of Article 370 of the Constitution” has been used to withdraw the special provisions it earlier enjoyed. The concurrence of the constituent assembly was required as mentioned in the article. Devoid of a state government, a constituent assembly did not even feature in the picture. This provision was amended and “constituent assembly ” was replaced with “legislative assembly”. As the Assembly is in suspension, the president recognizes the concurrence of the Governor as the concurrence of the legislative assembly of Jammu and Kashmir. Thus the legal hurdles were being overcome by amending the constitution, paving a way to achieve a goal mentioned in the Modi government’s manifesto, which seldom has happened in the past. Some people argue, “Wasn’t the said provision temporary in nature and had to be done away with?”
The Supreme court has many times reiterated the word “temporary” in the headnote notwithstanding, Article 370 was not temporary. The Supreme Court in SBI v Zaffar Ullah Nehru (2016) observed that the federal structure of the Constitution is reflected in Part XXI. The court also said that J&K has a special status and that Article 370 was not temporary. The court referred to Article 369 of Part XXI that specifically mentions five years; no time limit is mentioned in Article 370. The court observed that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir. Article 35A empowers the Jammu and Kashmir legislature to define the permanent residents of the state, and their special rights and privileges. It was enshrined in The Constitution of India with a Presidential Order. Since the complete Constitution applies to Jammu and Kashmir, including the fundamental rights, the Article 35A stands unconstitutional. With Kashmir’s special status repealed, people from the rest of India would have the right to acquire property in Jammu and Kashmir and settle there permanently.
Kashmiris fear the move would lead to a demographic transformation of the region from majority-Muslim to majority-Hindu. According to some constitutional experts, this act of the Modi 2.0 is bound to face legal hurdles, when it comes up for hearing in the Hon’ble Supreme court. The constitution of India is based on the principle of cooperative federalism. India’s Supreme Court in State of West Bengal v. Union of India (1962) attached the highest importance to an “agreement or compact between states” as an essential characteristic of federalism. In-State Bank Of India vs Santosh Gupta (2016), the apex court accepted the presence of this compact for Kashmir. Article 370 was an essential facet of India’s federalism because, like the compact in the United States, it governed the relationship of the Union with Jammu and Kashmir. And the Supreme court has held federalism to be a part of the basic structure, which cannot be amended or diluted. The judiciary has to walk a fine line here. It might strike the said act as unconstitutional citing colourable exercise of power,”what you cannot do directly,you can’t do indirectly.”
INTERNATIONAL RAMIFICATIONS The government has been instrumental in winning support across party lines, depicting clearly, either you are with us or against the majoritarian mandate of the people. Who in this world’s largest democracy can afford to upset the mandate of the people, after all, “We the People” have voted for another stint of Modi government. But what can be termed as a victory for India is a big diplomatic win. While our Prime Minister is busy expanding diplomacy,trade and culture, Pakistan concerns are reduced to the size of POK.Despite Pakistan’s repeated attempts to internationalize the issue, bring Kashmir to the table and turn the world’s focus which is already suffering from wars, climate change, persecution of religious minorities and terrorism, towards Kashmir, has been thwarted because of influential diplomatic maneuvers. Barring China, which has less of breathing space here, since its house has been on fire for a very long time now (pro-democracy protests in Hong Kong), every other country has reacted in unison, terming Kashmir as an internal matter of India. Even though every major superpower is supporting India, believe it or not, its the vested interests that are compelling them to reiterate what India wants them to.
WHO TO BLAME? It will be wrong to blame one government for the unprecedented violence in the valley. The previous governments have played an equal part. A number of Presidential Orders were issued against the letter and spirit of the Instrument of Accession. By the Presidential Order of 1954, almost the entire Constitution (including most constitutional amendments) was extended to Jammu and Kashmir. Ninety-four out of the 97 entries in the Union List are today applicable to Jammu and Kashmir as to any other state. The state has been on the boil for decades now, maybe this government is right, special status discriminates, the real question is ,” Did A-370 alone create such a discrimination,and A-371A -J is in consonance with the principles of equality? ”
Maximum government, minimum governance? The voice of dissent has been silenced completely. The right to react, right to protest has been snatched away. Supreme Court is witnessing the developments, but the flag bearer of justice is being a mere spectator when article 21 of many are being ravished.The public is happy, media houses are glaring. While Jammu and Kashmirreels under the subjugation of the majoritarian view, world’s largest democracy lost a golden chance to integrate the long disputed territerritory.tory. WAY FORWARD: The way a society responds to the developments taking place in the valley is always seen as a marker of the health of a democracy. When problems are complex ,good governance requires effective methods for people’s participation. We all need to introspect our thought process and how we perceive everything that has been happening in and around. Maybe this action bears the fruit the government has been selling to the general public, or maybe it fails miserably like demonetisation, which was being termed as a landmark decision in controlling the militancy and cutting off the revenues altogether. Maybe the right approach could have been integrating the kashmiri students into the mainstream, maybe the right means could have been treating them with compassion and not put them under the lens to prove their nationality, maybe the confidence-building measures could have been given a chance, maybe the sorry state of economic affairs in the state could have been looked upon. Maybe our beloved former Prime Minister Vajpayee was right with his approach to winning over the hearts of our fellow Indians, with Insaniyat, jamhuriyat and kashmiriyat. Maybe the peace will find its way in the valley,a big maybe lingers as we see ..