Article 370 from the lens of ‘citizen outsider’

Arvind Jasrotia
After seven decades of living in Independent India, the ‘citizen outsider’ in the erstwhile State of J&K read with delight the decommissioned Article 370 of the Constitution of India when the President, on the recommendation of Parliament and in exercise of his powers under Article 370(3) read with Article 370(1) of the Constitution issued the declaration to the effect that that all clauses of Article 370 would cease to be operative, except the clause to the following effect:
All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu & Kashmir notwithstanding anything contained in any law, document, judgment, ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement.
Displaying legislative acumen and novelty, clause 4 was added in Article 367 of the Constitution to bring changes to reference of Sadar-i-Riyasat of J&K as the Governor and Government of J&K as the Governor of J&K acting on the advice of Council of Ministers. Suffice to say that the Government adopted the same path as adopted by the Congress Government in 1952 and 1962 by amending the provisions of Article 370 through a notification.
Thus the parts of Article 370 that granted the erstwhile State of J&K asymmetrical and special treatment were withdrawn and confined to the dustbin of the history thereby realigning the political landscape of the country. The move was justified on the premise that Article 370 was the root cause of terrorism in J&K, had ruined the state, stalled its development, prevented proper health care and education, blocked industries and more importantly stalled integration of the region with the rest of India.
A snapshot of constitutional and political history of J&K unambiguously reveals that Article 370 was (ab)used by the mainstream Kashmiri polity by indulging in legislative (mis) adventurism and filtering the constitutional provisions and socio-economic welfare laws with such ‘exceptions and modifications’ as to facilitate their own interests while simultaneously thwarting development in the Jammu and Ladakh Regions. The separatists elements in Kashmir, and the political parties extending them their support allowed propagation of their ideology, while central and state governments remained mute spectators. The simmering discontent in Jammu and Ladakh regions reflected the legitimate expression of feelings due to hostile discrimination since decades coupled with neglect and apathetic attitude of the powers at the centre. All along, New Delhi’s focus had been the elite political class in the Valley and value judgments on them were made applicable to whole of Jammu and Kashmir. To confound the problem further, the ‘so called’ politically correct writers and media journalists sensed J&K, sitting in their ivory towers at Delhi, and educated Indians about Kashmir problem through a platform devoted to separatists’ leaders to voice their dissent. The political patronage and financial assistance granted by the Centre benefited only the few elite political families in Kashmir to the disadvantage of ordinary common man whose genuine grievances were not addressed as there was a complete lack of transparent, accountable and good governance leading to utter discontent amongst the masses.
Quite ironically, living in independent India as her cherished citizens, there were few categories of people in the erstwhile state of J&K who were contemptuously treated as ‘citizen outsiders’. First category comprised of West Pak Refugees (WPRs) who migrated to J&K in the wake of partition in the year 1947. Justice eluded WPRs who were in the State of J&K for more than seven decades. Their existence and identity was incessantly held in breach within the realm of a State of their own country. Caught in the labyrinth of being a citizen of India and Non-Permanent Resident in the State of J&K has not only produced consequences from a socio-political, legal and economic perspective, but also created problems that have had inevitable repercussions on the extensive catalogue of human rights. The WPRs were denied acquisition to immovable property, permanent settlement in the state, recruitment to state services, right to state scholarship and voting rights in state elections, to name a few. As WPRs strived for the acknowledgment of their basic civil, political, social, cultural and economic rights, their succeeding generations continued to be handicapped at the hands of inflexible code of laws governing the State of J&K, thereby reducing WPR to the status of a ‘citizen outsider’ who had become invisible in the political and economic landscape of the State that destiny chose for him to seek refuge and settle post partition. Article 35-A of the Constitution of India provided immunity from constitutional scrutiny based on Part III of the Constitution to any law enacted by the State Legislature of J&K for defining the classes of persons who are/shall be the ‘Permanent Resident’ of J&K and conferring on them rights and privileges or imposing restrictions on non-permanent residents. Even the Apex Court showed helplessness to the denials and deprivations faced by WPR community and lamented in Bachan Lal Case thus:
All that we can say is that the position of the petitioner and those like him is anomalous and it is up to the Legislature of the State of J&K to take action to amend legislations…the petitioners have a justifiable grievance… We do hope that the claims of the persons like the petitioner and others to exercise greater rights of citizens will receive due consideration from the Union of India and the State of J&K. We are, however, unable to give any relief to the petitioners…
The second category of ‘citizen outsider’ was the Valmiki community who was brought to the erstwhile State of J&K in the year 1957 under promise of being made permanent resident of the State and made to do manual scavenging to overcome sanitation crisis. While relaxing the PRC conditions for Valmiki community, a clause was inserted in J&K Civil Services Regulations that made them eligible for being appointed as Safai Karamcharis throughout their life without any promotional avenues. Denied of voting and residential rights because of Article 370 and Article 35A, the Valmiki community represented a sordid saga of human suffering and serious case of violation of human rights.
The third category of ‘citizen outsider’ was the Gorkha community whose ancestors had shifted from Nepal decades ago to fight alongside Dogra Army. They were also deprived of PRC in the State and consequential rights and privileges.
The Fourth category of ‘citizen outsider’ were the women residents of J&K whose right to acquire, hold or inherit immovable property in the State of J&K was made contingent upon their marital status. Sense their plight when the PRCs were issued to them with an endorsement as being ‘valid till marriage’. Recall the haste with which the then government introduced J&K Permanent Resident (Disqualification) Bill, 2004 in the State Legislature to set at naught the full bench judgment of J&K high Court laying down that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of the State of J&K. The proposed bill was passed in the Legislative Assembly within a record period of six minutes from the state of introducing the bill to its voting. Thanks to women activists’ intervention, the bill didn’t get approval from the legislative council thereby dying its natural death.
Last but not the least, the Fifth category of ‘citizen outsider’ was the Kashmiri Pundits community who were forced to flee from their homeland Kashmir in the backdrop of an insurgency and rising Islamism. Their ‘mass exodus’ was accompanied by severe human rights violations including right to physical safety, security and liberty and access to basic humanitarian services. Living in rehabilitation camps at Jammu and elsewhere since then, Kashmiri migrants have experienced economic, social and emotional trauma as well as adjustment difficulties.
The abrogation of Article 370 and removal of bar created by Article 35A has brought cheers to the four categories of ‘citizen outsiders’ mentioned above as they now become entitled to their basic civil, political, social, cultural and economic rights while range of efforts are being initiated by the government for the relief and rehabilitation of the Kashmiri Pundits as well as other displaced population so as to instill a sense of hope and optimism amongst them.
(The author is Professor of Law at the University of Jammu)


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