Kashmir : A turbulence of Article 370

Vedchetan Patil

Law is a mere puppet of politics, politics is beyond law and much beyond the horizons of politics, imbedded deep within the existence of mankind limited by its humane virtues and qualified by its own perceptions about ‘right’ and ‘wrong’, moral and immoral slouch the principles of human rights, free will of people and relations between the different sections of society.

Article 370 of the Indian Constitution is one such example of the product or compromise of the complications of relations of Kashmir with the entire sub-continent. Its roots are deep within history of sub-continent and is a convulsed product of hindu-muslim relations, it is a product of trembled nascent Indian State and newly born Pakistan, shudder of a indecisive Maharaja Hari Singh and dedicated Kashmiri leader Sheikh Abdullah whose opportunism partly failed in the wake of international politics and geo-strategic location of Kashmir.

Kashmir, aptly described as the paradise on earth was subjected to such conflict in which every power on this planet has either interfered to further demean the position of India or Pakistan, directly or indirectly, or has offered to resolve the issue, but to the surprise of none the issue of Kashmir remains unsolved till date.

Immediately after the Transfer of Power, the Pak forces under the guise of jihadis and Azad Kashmir forces launched attack on the western and northern fronts of Kashmir and in such circumstances to protect his own interests and his state from falling to Pakistan, the then Maharaja Hari Singh signed Instrument of accession with India to seek intervention from India to stop the invading forces. Thus the accession of the state of Jammu and Kashmir was legal in totum both in fact and substance.

Invading forces on one front, opposition of various forces within like those of Sheikh Abdullah, and indecisive approach of both Maharaja Hari Singh and Indian State, in a hasty decision a condition was put on the Indian State to allow Kashmir to retain autonomy and because the Instrument of Accession was signed in such circumstances, the Government of India assured the people of the State that an elected Constituent Assembly will frame a Constitution for the State and will determine the nature and extent of application of other provisions of the Indian Constitution over the State. Article 370 only incorporates these assurances.

Thus, while remaining within the framework of Indian Constitution the State of Jammu & Kashmir virtually attained an autonomous status not enjoyed by any other state of the Republic of India. However, the Constitution-makers envisaged the day when the need of the temporary provision would end and the Article 370 stands abrogated. But this step was to be taken not at the behests of any extraneous authority, not even at the demand of the Indian public opinion, however united or strong on the subject, but at the express wish of the people of Jammu and Kashmir.

To understand the issue at hand it is important to understand the dynamism of the entire state of Jammu and Kashmir and its constituent elements.  J&K as on date is comprised of Jammu Province, Kashmir Valley, Leh and Ladakh on Indian side and on the Pakistani side it is Pakistan occupied Kashmir comprising of Gilgit Baltistan which share their culture and language Purki with the areas like Kargil and Drass on Indian side and then there is self celebrated Azad Kashmir which is a mere protectorate cum puppet of Pakistan and enjoys no free will but than that of the supremos of Pak establishment.

There is a momentum of separatism in the Kashmir valley per se which strongly defends Article 370 to keep the momentum of their Islamic identity and jihad alive to achieve the end of Separate Kashmir from India. In areas like Kargil and Ladakh Article 370 is largely advocated to protect their native business, culture and peace and beauty of the valley. The question of POK and Azaad Kashmir is not subject matter of this article.

There are definitely advantages and dis advantages of Article 370, while A. 370 grants special status to the State and limits the Union’s powers over the state only to the matters of Defense, Communications and Foreign affairs and ancillary matters listed in Instrument of Accession. For all other matter Union needs State Government’s concurrence to enact laws. It also limits the rights of the citizens of India to buy any property in the State. Article 370 is often daubed in the eyes and psyche of Kashimiris as a proof of acceptance of dispute of Kashmir by India. Needless to say, one of the reasons and main advantages of Article 370 is to protect the Kashmiri identity and culture from getting polluted by the ongoing industrial development in the rest of India. It is indeed very difficult or say next to impossible for any non-kashmiri to start a business in Kashmir, which in turn affects the employment opportunity and development of Kashmir. Kashmir cannot self sustain, neither in terms of administration, food production, defense and this is a proven fact, it needs no certificate from either of the three sides of dispute.

Article 370 not only limits the powers of Union and citizens of India but also seriously affects the powers of kashmiris per se.

In notifications issued as far back as 1927 and 1932, the state created various categories of residents – with some being called permanent residents (PRs) with special rights. Though the law did not discriminate between female and male PRs, an administrative rule made it clear that women could remain PRs only till marriage. Post marriage the women are required to seek a fresh PR card. And hence if a woman marries a person who is not Kashmiri PR, she automatically loses her own PR status.

In 2004, the J&K High Court, in the case of State of J&K Vs Sheela Sawhney, declared that there was no provision in the existing law dealing with the status of a female PR who married a non-resident. The provision of women losing their PR status after marrying outside the state, therefore, did not have any legal basis. This decision was historic because it corrected an administrative anomaly and brought relief to women who married outside the state.

A People’s Democratic Party government, led by Mehbooba Mufti, passed a law to overturn the court judgment by introducing a Bill styled “Permanent Residents (Disqualification) Bill, 2004’. This was not Mufti’s solo effort. Omar Abdullah’s party, the National Conference, backed this Bill and got it passed in the assembly. But it did not ultimately see the light of day for various reasons

The question also arises, how would our relations with Pakistan will be affected if the Article 370 is revoked. And can A 370 be revoked?

Article 370 itself incorporates that any amendment or modification cessation of operation of Article 370 can be declared by Public Notification by the President only after the recommendation of Constituent Assembly of Kashmir. As a matter of fact, the Constituent Assembly of Kashmir is dissolved. What remains now is the Legislative Assembly. Art. 147 of the Constitution of Jammu and Kashmir states that no Bill or amendment seeking to make any change in the provisions of the constitution of India as applicable in relation to the State; shall be introduced or moved in either house of the Legislature.  Hence, in effect, Legislative assembly of Kashmir cannot be treated as Constituent Assembly. This is exactly the legal problem in revoking Article 370. The only option is to freshly elect a constituent assembly for Kashmir and then revoke Article 370. But the moment a fresh Constituent Assembly is elected it will beget unprecedented political problems and this is one of the main reasons, we are maintaining the status quo.

Another question  is how will it affect our relations with Pakistan. Indeed, it might storm the policy makers to large effect as any change in the Kashmir politics or the establishment thereto, is a plausible cause in itself, which can be effectively galvanized by the establishments such as Army or ISI in Pakistan to gather a war momentum. But as long as Indian establishment is concerned, we have to treat this as a internal matter and no importance is required to be given to Pakistan as any change in Article 370 would legally be limited to the Kashmir on Indian side and not on POK or Azaad Kashmir unless the citizens on the other side create a momentum to integrate in the Indian side. There is no legal requirement for Indian Government to persuade Pakistan or to seek its opinion, except for the obvious political reasons.

Existence of article 370 is that barrier between the Indian State and its subjects in Kashmir which not only limits the legal access of Indian state in Kashmir but also limits the psyche of Kashmiri people in calling themselves full fledged citizens of India. In recent past we have witnessed the exodus of Kashmiri Pandits at the behest of Islamist Jihadist. This exodus has further helped the jihadist to create the muslim pockets, which were then utilized to accelerate the Jihad on the name of Islam. Small pockets of islamist establishments have been created which are meticulously kept isolated from entering in the Indian main stream to keep the issue burning. Question is considering the positive aspect of A. 370 of protecting the Kashmiri identity and culture. For how long do we as an Indian state or as a fellow Kashmiri intend to remain in the darkness of old facets of our lives which are veiled by the shadow of our own self inflicted notions of protection. In past 67 years the dynamics of entire Indian Politics has changed. Our culture has changed, our Indian way of thinking has changed, our methods of worship has changed, from a rural establishment we are slowly shifting to urban society, from agriculturists we are slowly shifting to industrial and service based economy. Then why should Kashmiris even after 67 years of independence still depend upon tourism for the bread and butter which otherwise lasts only for 3-5 months in the valley. For protection of nature, the only step which needs to be taken is to protect nature by enacting certain laws and not by limiting the psyche of the Kashmiri citizens. Union cannot go on spending on Kashmir for the development of roads, cities and education, etc, and disallow her own citizens any access in the valley for political reasons. In the past there has been hue and cry that Kashmir belongs to muslims and hence hindus must be ousted. Point is land belongs to whom? From thousands of years hindus have been settled in Kashmir and entire Indian sub-continent, slowly with Islamic invasion, muslims have come to India and settled, many hindus were converted to islam some by choice some by force. But now over a period of time, after the brutal inhuman partition of India in 1947 all of us are part of Indian state, which is secular. Will it be right on India’s part to oust the Muslims on the pretext that Muslims are outsiders and this land was always inhabited by Hindus. The answer is simplicitor no. And today as fellow Indians we can proudly and firmly answer to the above question as ‘no’ because in our culture and muslim culture we have devised a way of homogenization, a blend which has given birth to new Indian identity. It is indeed even after living in separate colonies in every city, there was no barrier of any article like that of 370, hindus were free to inhabit in muslim colonies and so were the muslims. Not only Hindus and muslims but also North Indians and South Indian were always allowed to homogenize. Everything from marriage to business was permitted by a canopy of well established laws. There was no legal psychological barrier and hence today we have evolved to a fresh nascent blend of society, with some baggage from the past. But we have progressed to a positive end is an undisputable narrative. Same shall be the story of revocation of Article 370, there will be problems, but unless you homogenise the populations, how do you allow progress. Civilisations change, adopt to the new culture, there will be influx and outflux of ideas and culture, a new definition of Kashmiriyat will evolve perhaps in the same narrative as that of India.

The most practical and workable solution to resolve the Kashmir issue is to strengthen our position internally, negotiate from the stronger side, with due respect to the human rights and identity of other parties, integrate the Kashmiris psychologically, a momentum has to be created in the Heart’s of Kashmiris that there progress lies in revocation of 370, the fear psychosis which is incepted into the hearts of Kashmirs about revocation of 370 has to meticulously, gradually and systematically waned. The narrative will be more or less like that of FDI in India, when we adopted the policy of globalization in 1991, there was similar fear psychosis narratives like that of 1000 East India Companies to take over Indian sub-continent were spread. But ultimately, today we live in one of the fastest developing nation because we opened up to the outer world. The same shall be the story of J&K. Initially the opposition has to controlled by strong political will and gradually the change will be accepted.

As Lt. Gen (Retd) Ata Hasnain says, “There are external, internal and external-internal dimensions to the situation that need to be understood. The external dimension is highly dynamic, contingent on the situation in Afghanistan and Pakistan, besides the peripheral areas. The attempts to ideologically establish radical roots in the region should concern us most. That is what drives radicals in Pakistan to continue targeting Jammu and Kashmir. It is important to remain engaged with Pakistan’s moderates and ensure that radical ideology is not allowed to dominate the future narrative — that is the common ground the two prime ministers have for the time being. China’s entry and interests in the AfPak region have to be taken into account while formulating our responses.”

At the matrix we need to understand, that Kashmir is not a legal problem it a political problem which has to be peacefully resolved through the most persuasive puppet of Politics and that is Law.

This article was first published in Flair Talk Magazine (A publication by All India Reporters) as Cover Story for the July 2014 edition. 

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