Pradeep Gupta
16th March, 1846, when Mahraja Gulab Singh executed the treaty of Amritsar with the British giving birth to the princely State of J&K, 26th October, 1947 when Maharaja Hari Singh signed the instrument of Accession signifying union of the State with the dominium of India and 5th August, 2019 when Article 370 was repealed are epoch making events in the history of Jammu & Kashmir. Sheikh Mohammed Abdullah, supported accession to India. Based on parleys with him Article 370 was incorporated in the Indian Constitution that people of India gave themselves on 26th November, 1949.
The impugned Article restricted applicability of the Indian Constitution to the State. Based on what is called the ” Delhi Agreement” the exceptions and modifications subject to which the Constitution of India applied to the State of J&K were laid down in the Constitution( Application to Jammu & Kashmir) Order, 1954 issued by the President with the Concurrence of the State Government in exercise of powers conferred in him by clause (1) of article 370. Subsequently from time to time additional provisions of the Indian Constitution were applied to the State following the same procedure.
Same window in the Indian Constitution has now been used by the Central Govt in pursuance of its Notification dated 5th August, 2019 to supersede the Constitution (Application to Jammu & Kashmir) Order,1954 as amended from time to time and to repeal Article 370 in exercise of powers conferred by clause(3) of said Article. Simultaneously all the provisions of the Indian Constitution have been applied to the State. Repeal of the impugned article has also thrown away Article 35-A that saved State Laws granting special rights and privileges to the permanent residents of the State in the matter of employment, acquisition of immovable property and settlement in the State. This will remove gender discrimination caused by Article 35-A and enfranchise the Stateless West Pakistan refugees and Valmiki samaj besides providing reservation for ST’s in the State Assembly. By substituting “Constituent Assembly” by ” Legislative Assembly” perennial ambiguity in the Article has also been removed.
Article 370 has fanned separatism right from its inception. It has been used as a tool by the political parties at the helm in the State to retain power by always keeping the pot boiling and dangling the carrot of ‘Azadi’ to allure their vote bank. Repeal of Article 370 was the core ideological agenda of the Jansangh and the successor BJP right from the beginning. Its Repeal has always been promised in their election manifestos. By repealing the Article the party has fulfilled the promise made to the electorate. The step has been widely welcomed in the Jammu an Ladakh regions. Response of the people in valley is one of disbelief because the mainstream political parties have continuously promised them the mirage of pre-53 position, autonomy and even pedalling soft separatism. The government of India over years has made strenuous efforts to find a solution to the problem by offering to hold talks with whosoever mattered. But this was perceived as a weakness and responded with arrogance. So much so that the separatist leaders literally shut doors on the face of Indian parliamentarians when they arrived at their door step to confabulate. Even initiatives taken by government of India to normalize relations with Pakistan came to a naught. When all options have failed, repeal of Article 370 was clearly the only option to bring about complete integration of the State with rest of the Country. Keeping in view the emerging geopolitical situation in our neighbourhood, the action has come not a day too soon. There is real danger of out of work Talibans spilling over to the valley when the US forces exit from Afghanistan. Pakistan is rubbing its hands with glee and eagerly waiting to stoke the flames of separatism in the valley. Therefore, an urgent need to politically secure the State and plug all security loop holes. The mainstream political parties in the valley have clearly been overtaken by the turn of events. So is the case with leading opposition party in the country. On the other hand support received on the issue from US, Russia, UN and neutral stance taken by Islamic countries is heartening.
While abrogation of Article 370 is on expected lines and appears to enjoy overwhelming support of the Parliament, the Country as well as Jammu and Ladakh. The bifurcation of the State into two UTs in pursuance of the J&K Reorganisation Act, 2019 has come like a bolt from the blue. It is being argued that this could not be brought about without ascertaining the views of the Legislative Assembly of the State. In a strict legal sense there is no flaw in the procedure followed since the State Assembly stands dissolved and the State being under President’s Rule powers of the State Legislature are exercised by the Parliament as per Article 356 of the Constitution . The requisite Bills/ Resolutions stand approved by the Parliament in its sittings held on 5-6 August, 2019. Formation of UT for Ladakh has fulfilled a long pending demand of the people of this remote and strategically located region. Although the UT is without a Legislative Assembly, continuation of the self governing Hill Councils for Leh and Kargil districts provide an avenue to the people of the region to manage their own affairs.
There is subdued response to the re-organisation proposal in the Jammu region since UTs have limited Legislative and executive powers viz a viz full fledged States. This is the first instance that UTs have been carved out of a full fledged State. In the Statement of ‘Objects and Reasons’ appended with the J&K Reorganisation Bill it is stated that a separate Union Territory for Jammu and Kashmir is being created in view of prevailing internal security situation fuelled by Cross border terrorism. The subjects of ‘Police’ and ‘Public Order’ being directly with the Central Govt in case of UTs, Govt of India feel that they will be better equipped to handle the problem of militancy in the State. The Union Home Minister has assured that the status of the Statehood will be restored once the situation normalises. Let this happen sooner than later.
The people of the valley are shell shocked by the new developments and severely discomforted by the security restrictions currently in place. The dramatic events of previous week are not an occasion for exultation. There is urgent need to reach out and assuage the people in the valley and assure them of a safe and dignified future and rights and opportunities equal to those enjoyed by other citizens in the country. Let the new dawn be a harbinger of peace and prosperity in the entire State.
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