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Sunday, Dec 08, 2019

Revocation of Article 370 could trigger a sense of betrayal in Kashmir | Opinion

If the intention was to remedy a constitutional error, the people most affected should have been consulted first.

opinion Updated: Aug 08, 2019 08:49 IST
Wajahat Habibullah
Wajahat Habibullah
Article 370 has governed the accession and relationship of the princely state of J&K with India under the Indian Constitution. Mainstream political leaders from Kashmir have warned that revoking the Article will mean breaking that relationship. The separatists have been dismissive, holding that it had already been rendered meaningless through repeated amendments, thus sparking conflagration.
Article 370 has governed the accession and relationship of the princely state of J&K with India under the Indian Constitution. Mainstream political leaders from Kashmir have warned that revoking the Article will mean breaking that relationship. The separatists have been dismissive, holding that it had already been rendered meaningless through repeated amendments, thus sparking conflagration.(AP)
         

In one fell swoop, President of India Ram Nath Kovind declared that all provisions of the Constitution shall now apply to the state of Jammu and Kashmir (J&K), thus nullifying Article 370 using the same article — and ending the special autonomous status that the state had enjoyed since the promulgation of the Constitution. Under Article 370, J&K had its own constitution, with the President of India empowered to decide which provisions of the Indian Constitution would be applicable within the state — but only with the assent of the state.

The Jammu and Kashmir Reorganisation Bill 2019 bifurcates the state into the Union territories (UTs) of J&K, and of Ladakh. While the UT of J&K will have a legislature, the UT of Ladakh will be without one. While UTs have, in the past, been upgraded to states, never has a state been so downgraded, thus consummating the accession of J&K to India in a manner different to its inception.

Article 370 has governed the accession and relationship of the princely state of J&K with India under the Indian Constitution. Mainstream political leaders from Kashmir have warned that revoking the Article will mean breaking that relationship. The separatists have been dismissive, holding that it had already been rendered meaningless through repeated amendments, thus sparking conflagration.

A devout Muslim, the unchallenged Kashmiri leader of the time, Sheikh Abdullah (Baba-i-Qaum — father of the community/nationto his people) faced a clear choice in 1947; he could join a Muslim nation, or choose a secular one, in which Kashmiris would be secure in their distinct identity. The Kashmir freedom movement aimed to rid Kashmir of despotism; it worked parallel to the national movement, but was not part of it. Despite efforts by Hari Singh’s prime minister, Ramchandra Kak, in eliciting the Sheikh’s support for Independence, the latter stood steadfast in his demand for an end to the monarchy. Visiting Srinagar between June 18 and 23, 1947, India’s then Viceroy, Louis Mountbatten urged Singh not to make a declaration of Independence. He conveyed Vallabbhai Patel’s message that “the States Department were prepared to give an assurance that, if Kashmir went to Pakistan, this would not be regarded as unfriendly by Government of India”. But then, the state faced an uprising by Poonchi troops of the British Indian Army’s decommissioned Sixth Punjab Regiment, followed by a military rout of state forces by frontier tribesmen on October 22, 1947. The Maharaja turned in desperation to India.

According to the 1941 census, 77.11% of the state’s population was Muslim, 20.12% Hindu, and 1.64% Sikh, which made Pakistan claim the state. But by taking recourse to a military invasion by tribesmen, it virtually lost its case, certainly in the eyes of Kashmiris standing against them. India’s case, however, rested on the public will. The Sheikh declared on record that, of the options before him, true freedom was to be had only within the Indian Union. The constitutional guarantee for this was actuated by Article 370, which, when read with Article 369, provided temporary powers to Parliament to make laws for the state.

Under subsection 3 of this Article, the president can revoke 370 only on the advice of the Constituent Assembly (CA) of the state. The CA was dissolved in 1957, and replaced with a Legislative Assembly — which was dismissed last year, after the Bharatiya Janata Party-Peoples Democratic Party coalition collapsed.

Importantly, the current Presidential Order modifies Article 367, with “Constituent Assembly” to be read as “Legislative Assembly of the State” and the state government construed as the governor. This has enabled the president to abrogate Article 370, with the consent of the governor deemed the consent of the state. The constitutional validity of these measures are for the apex court to ponder. But if it is claimed that these measures are indeed designed to benefit the people, why then was it necessary to bring them before Parliament so surreptitiously, with the leaders of mainstream parties under house arrest, and Kashmir in lockdown?

If the government wanted to rectify a constitutional error, or remedy an anachronism, as claimed, did it not follow that the democratic compulsion demanded placing the proposal before the public which is the most affected — the people of J&K — before brining it to Parliament? Instead, Kashmir reeled under unprecedentedly intense security measures. We must conclude that it was, therefore, common knowledge that such an endeavour meant riding roughshod over Kashmiri public opinion already beset with widespread disaffection. If it is believed that placing the remaining of the state under the Union government will help effectively address the ongoing violence, this is contrary to the conclusions based on experience. A study by the Narasimha Rao government brought governor’s rule (1990-96) to an end, in realisation that without the support of the public, which the governor’s rule had failed to win despite studied effort by a series of outstanding governors, battles could be won but not the war. The present initiative will only lead to a feeling of betrayal among a section of our people, and a foreboding of worse to come.

Wajahat Habibullah , a retired civil servant, has served as Chief Information Commissioner, and Chairperson of the National Commission for Minorities
The views expressed are personal

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