K.N. Pandita
Jammu and Kashmir issue was at the top of BJP’s agenda from day one of Modi-02 government. The reason for BJP to pull the carpet under the feet of the coalition government was its dark foreboding that Jammu and Kashmir were made to gravitate to theocratic propensity. This apart, the historic decision taken on August 5, 2019, was precipitated by an alleged understanding between Trump and Imran Khan during latter’s visit to Washington. Curiously, Imran Khan calls the scraping of Article 370 “a slap by the Indian government on the face of Trump.” He means to provoke Trump against India for her parliament’s sovereign act.
Eager to extricate the US from Afghan imbroglio as early as possible so as to familiarize his candidature for the second presidential term, Trump appears to have agreed to barter away the Indian territory of Jammu and Kashmir in return for Imran’s promise to bail him out. The two day-dreamers have a tremendous capacity of making a laughing stock of their selves.
A couple of things need to be taken note of. Soon after Imran’s return from a meeting with President Trump, there was a sudden escalation of tension and firing along the LoC. Several attempts of infiltration were made by the fidayeen within a short span of one week. Simultaneously, a special Pakistani official delegation left for the US to sell the idea of mediation on Jammu Kashmir to the US lawmakers and think tanks. At the same time, China also issued a statement endorsing mediation by third party in Jammu Kashmir. Exclusion of India and President Ashraf Ghani from the Afghan negotiating group indicated that Trump’s had succumbed to pressure from Pakistan.
Much ahead of Modi’s Kashmir Mission these developments converged on deepening of tension between the two countries soon after Imran’s return from Washington. Much noise was raised by marginalized valley leadership, particularly by two former chief ministers, Mahbooba Mufti and Omar Abdullah, that Kashmir’s identity will be eroded by revoking Article 370 of the Indian Constitution. However, under the Governor’s vigilant eye neither the Indian intelligence nor administration could go napping. The decision of surgical operation of the festering wound had to be taken in time.
Observers speculated various options which Prime Minister would be concentrating upon. His primary concern was that doing away with Article 370 should in no case harbour constitutional impropriety. Knowing that the matter was very sensitive, he had to keep the cards close to his chest. Much did the traditional valley leadership try to sniff a clue here or there they could not succeed to obtain any idea what the government was really up to. After burning the midnight oil on studying even the minutest aspect of the move, final approval was given by the Prime Minister for tabling the resolution. .The reaction of the opposition, the fall out of carrying the motion and its broader repercussions, everything was meticulously taken into account, This also explains the reason for the army chief and senior commanders in J&K to pay recurring visits to the borders and forward pickets to ensure that all security measures were in place and the jawans were keeping a high morale.
The most crucial part of the story could be if the Home Minister planned to make a big adventure of revoking Article 370, how it would be brought about without jeopardizing constitutional propriety. The proceedings of tabling the resolutions went on like this:
Union Minister for Home Affairs, Shri Amit Shah, introduced two bills and two resolutions regarding Jammu & Kashmir (J&K) in Lok Sabha. These were as follows:
1. Constitution (Application to Jammu & Kashmir) Order, 2019 {Ref. Article 370(1) of Constitution of India} issued by President of India to supersede the 1954 order related to Article 370.
2. Resolution for Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)}
3. Jammu & Kashmir (Reorganization) Bill, 2019 {Ref. Article 3 of Constitution of India}
4. Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019 {Home Minister withdrew the Bill from both Houses as the provisions of this act would become applicable to J&K once article 370 gets repealed and the laws of Union of India become applicable there}
Article 370 (3) provides President of India has the powers to amend or repeal the article by issuing a notification, based on a recommendation of Constituent Assembly of J&K. President of India signed the Constitution Order 2019 on August 5, 2019, regarding Article 370 (1), under which all the provision under article 4 would be applicable to J&K. J&K constituent assembly would be read as J&K Legislative Assembly. Similar changes to article 370 have been done in the past as well. Now since President’s rule is in force in the state, implementation of article 370 has ceased to exist as the President of India issued the notification in this regard, after this House passed the resolution.
After issuing August 5, 2019 orders all orders or amendments issued under the same clause in 1954 stand revoked. In 1954, the then Congress government had taken recourse to the same clause and had brought in Article 35-A. The Home Minister did not propose any amendment to Article 370. In terms of legalities, the President of India signed an order on the morning of August 5, 2019, now called Constitutional order 272. Both Houses of the Parliament have approved through a majority vote the revocation of Article 370 in the Constitution. In another bill which also stands passed by both the houses, J&K has been bifurcated into two Union Territories, one of Ladakh and the other of J&K.
Notably, Modi government has also amended Article 367 and added Clause 4 to it which now includes Jammu & Kashmir in general category along with other states. Earlier, it was not included in the category of states referred to as ‘the said states’ in this Article. But now it is also a part of the ‘said states’. Jammu and Kashmir are now like any other state when it comes to applying Constitutional provisions. The power which was vested in Legislative Assembly of the State is now vested in the Governor (read Lt. Governor). Earlier the assembly used to recommend to the Governor and the latter used to recommend further to the President of India. But now like any other State, the council of ministers will give advice to the Lt. Governor. Constituent Assembly is now to be read as Legislative Assembly. Thus the compulsion to have Constituent Assembly to scrap Article 370 is not required.
Two issues were brought forward by the Modi Government in Parliament. Clause 2 and 3 of Article 370 were scrapped. According to these clauses, the recommendation of Assembly was required to scrap Article 370. But now only Clause 1 remains. Two Union territories have been carved out. Ladakh is a Union Territory without assembly. It will have two Hill Councils and a Lieutenant Governor. Jammu-Kashmir has been made a Union territory with an Assembly. The Governor as the administrative head continues to perform his role.
Abrogation of Article 370 puts an end to psychological confusion among the people of the State that somehow they were not part of the national mainstream. It fomented separatist thinking among them. The champions of separatist ideology profiled themselves as the keepers of the conscience of the masses of people. The dream of azaadi is gone once for all. Restrictions on sale -purchase of an immovable property will be lifted. Also, the condition of obtaining permission for establishing industries in J&K will also go away. Owing to freedom of investment the prospect of industrial and agrarian development of J&K become very bright. Corruption, discrimination and the dynastic rule will come to an end and good governance is expected to change the mindset of the people misled by selfish leadership for too long a period. The anomaly of two flags, two constitutions and two presidents is resolved. All laws passed by the parliament will be directly applicable to the Union Territories of J&K and Ladakh.
A question may be asked. In what way does the revocation of 370 benefits the region of Jammu which has suffered discrimination and deprivation for seven decades? In fact, the root cause of discrimination of Jammu region will be found in the flawed delimitation of voter constituencies. The general belief is that the population quantum of Jammu region has been manipulated. The delimitation Act that disallows revision of the delimitation of constituencies till 2026 has been the real source of deprivation of Jammu region. Now that the existing delimitation Act has become null and void as J&K is a union territory, delimitation of constituencies is provided in the bifurcation bill. It will be implemented first and only then election to the legislative assembly will be held. As these lines are being written the delimitation process has begun with the Election Commission taking initial steps towards that end. Consequently, it is highly advisable that eligible voters get their names registered with the Election Commission of the Union Territory of J&K and Ladakh. That is the way how the decades-old discrimination and deprivation of Jammu region will be removed and the people will enjoy the benefits of equal partnership in the development of the region.
This also brings into focus two connected concerns. One is conceding to the 1947 partition refugees who came to J&K their political right to Indian citizenship, a right that has been denied to them so far. As residents of a Union Territory, they have the natural right to citizenship besides the right to voting for the legislative assembly. Again the PoK refugees who have obtained the PR can also claim their share in the 24 reserved seats for the people of PoK as laid down in the constitution of the erstwhile J&K State. If that Constitutional provision is null and void, even then they do qualify for enjoying the political right to franchise.
The second unresolved matter pertains to the Hindu minority (Kashmiri Pandis) hounded out of the homes in the valley in 1990. Their voting rights have not been denied but the conditions for casting their vote have been made very complicated and almost forbidding with the result that a large chunk of their vote remains uncast. Of course, with J&K as the new Union Territory, they will shed the nomenclature of “migrants” but what about their electoral constituency? They will justifiably ask for 4-5 “constituencies in exile” till the time they are resettled in their places of origin. The issues of these displaced persons since 1990 are multiple like: genocide, threatened the community, IDPs. Displacement compensation, relief and means of subsistence, restoration of illegally seized properties, right to cultural heritage, and return and restitution in the valley etc in a way that satisfies them. These are administrative and not constitutional issues and they got piled up over the three decades because the government of the State or the Centre had no will at all to care for the displaced community just because the Pandits are not any party’s vote bank owing to their numerical insignificance. We believe that Article 370 of the Indian constitution and the Constitution of the erstwhile J&K State both were responsible for all that befell this small religious minority. With the State constitution gone, the way is paved for addressing their concerns. Hopefully, the follow-up administrative action to the new status of J&K will take care of their concerns including concentrated restitution in the valley together with its adjuncts.
Finally, abrogation of Article 370 has liberated the people of Jammu, Kashmir and Ladakh from seventy years of dynastic and hegemonic rule and widespread corruption and nepotism. Their isolation has come to an end and now they are headed to the national mainstream. A vast prospect of all-round development opens up for all people of the two union territories. At long last, the festering sore of Jammu, Kashmir and Ladakh has come under the surgeon’s knife. It will take the wounds some time to heal. Jammu, Kashmir and Ladakh are now fully and finally integrated into the Indian Union.
(The author is the former Director of the Centre of Central Asian Studies, Kashmir University)
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