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Disequilibrium : THE UGLY AND INCONVENIENT TRUTH

Same song, different verse. The time for polemics over how Pakistan is fighting a proxy war with non-state actors in Kashmir or how Kashmiri separatists are speaking a lingua franca of their Pakistani handlers or how all this is built on a time tested boilerplate of anti Indianism is over. These are realities, which we have to deal with here and now. Wasting breath and mind space over the ugly truth is long gone. It is broken and it needs fixing. Things are not going to normalise as in the past, youth upsurge is the new normal and we have to reset ourselves. This understanding has to penetrate our beings quickly for we have to evolve a considered response. Nothing is sacrosanct anymore, which means we go directly with the scalpel to the nub and attack the malignancy – in this case Article 370. I am treading on dangerous ground here akin to walking on eggshells, but it is time to begin the process of abrogation of Article 370 if we are to save Kashmir. Kashmiris want their sub national identity, let us look at another mechanism to give it to them, this Article enshrined in our Constitution needs a quick fix solution.
Kashmir is a multi layered problem, one that resembles an onion is every way – the more you peel, the more the tears and greater levels of pungence. Its complexity has many facets – a controversial accession, Mohd Ali Jinnah’s maddening obsession that Kashmir would be the showpiece of his theological state which he had managed to carve out of the vast swathe called India plucked from under the Congress leadership’s noses, a promised plebiscite, which became almost a fait accompli to Maharaja Hari Singh signing the Instrument of Accession under duress as Pakistan stampeded Afridi raiders in a premeditated operation titled Gibraltar, an erroneous reference to the United Nations by an effete Jawaharlal Nehru under pressure from Lord Louis Mountbatten, the possibility of the recapture of large parts of what is now Pakistan Occupied Kashmir by the Indian Army in a defiant retaliation, which a pacifist Nehru once again rejected since he wanted to follow due process and the matter was in the United Nations. All things being equal, there is no greater clause that has prevented the integration of the state of J&K into the Indian Union in all these bloody and violent years than the debatable Article 370. Shyama Prasad Mukherjee’s clarion call stands to reason even today – “Ek desh mein do Vidhan, do Pradhan aur Do Nishan nahi chalenge, nahi chalega,” given that J&K had its own constitution, PM and flag. Subsequent agreements have made some changes and diluted its character and charter, but the core of Artcle 370 remains intact and the single biggest imponderable in integration of the Indian Union and the state of J&K.
The sub national identity that Kashmiris are now using as a refuge to practically wage war against the Indian state has its roots in the same Article 370. What it has done is sequestered Kashmir and Kashmiris, predominantly a Valley within the larger State – 135 km long and 32 km wide – from keeping the balance of power in their favour. It has prevented mobility, for no Indian can reside and acquire property in Kashmir unless he is a state subject. No migration is allowed, which enables someone from the rest of India to settle down in the state. Once mobility of people was prevented, the Sunni dominated Valley was happy to pursue its own identity. For years, the ministry of home affairs and Intelligence Bureau, in conjunction with RAW managed to manipulate the system, install pro India nationalist candidates as CMs. But with the cold slithery pipes of the internet sending out messaging and communication on the rising graph of Wahabi political Islam, which has replaced religious Islam, the rules of engagement have altered. India and its intelligence has been caught out on the dramatic events which have followed home grown
terrorist Burhan Wani’s killing. Almost overnight the mood of indignation has turned into open defiance and the troika of warring separatists Syed Ali Shah Geelani, Mirwaiz Farooq and Yasin Malik have found traction. India has missed this rapidly changing underlying current of separatism and equally missed the winter lull to make a breakthrough in Kashmir by bringing in all stakeholders including the despicable anti nationals led by Geelani to the negotiating table. With all these opportunities missed and the rising mercury in Kashmir now resulting in open targeting of democratic institutions, the integration process has suffered innumerable setbacks.
When Sardar Patel expressed his misgivings, this is what Nehru had to say on Dec 27, 1947: “Gopalaswamy Ayyangar has been especially asked to help in Kashmir matters. Both for this reason and because of his intimate knowledge and experience of Kashmir, he had to be given full latitude. I really do not know where the States Ministry (Sardar Patel’s ministry) comes into the picture except that it should be kept informed for the steps taken. All this was done at my instance and I do not propose to abdicate my functions in regard to matters for which I consider myself responsible. May I say that the manner of approach to Gopalaswamy was hardly in keeping with the courtesy due to a colleague.”
The Sardar thereupon resigned and the matter fell in Gandhiji’s lap to bring the two warring colleagues together. During this period, V Shankar, IAS was the personal secretary to Patel and had maintained a record of all events. It is clear from these records that Nehru finalised the draft of Article 370 along with Sheikh Abdullah without even informing Patel. Thereafter it fell to Gopalaswamy Ayyangar to get the draft passed in the Constituent Assembly discussions. The proposal was torn to shreds by an angry Constituent Assembly, as also the Congress Party Executive.
This accident of history continues to haunt India and Kashmir for it has become irrevocable and only a strong PM can ensure its revocation.

Indian Defence Review records the events as they unfolded:
Nehru, who was abroad at the time, swallowed his pride and rang up Patel and requested him to get the Article 370 approved; It speaks volumes of Patel’s loyalty to a colleague that despite his own and others misgivings, he managed to convince the members of Constituent Assembly and Congress Party Executive. But to V Shankar he said “Jawaharlal Royega”. V Shankar, in his record has described the meeting of the Congress Executive Committee “The meeting was one of the stormiest I have ever witnessed barring the party meeting which discussed the proposition relating to Rajaji becoming the first President of Indian Republic. The opinion in opposition to Gopalaswamy’s formula was forcefully and even militantly expressed and the issue even brought in the sovereignty of the Constituent Assembly to draw up the Constitution without being tied down to the apron-strings of the Kashmir State Constituent Assembly. In such a situation even Maulana Azad was shouted down.
The Party was in uproar. The Sardar had to plead that because of the international complications, a provisional approach alone could be made leaving the question of final relationship to be worked out according to the exigencies of the situation and mutual feelings and confidence that would have been by then created. Once the Sardar had taken charge, all opposition to the draft was silenced” And how Nehru responded to this great act of loyalty on part of Sardar? On 24 July 1952, after Sardar was no more, Nehru made a detailed statement on Kashmir in the Parliament on slow integration of Kashmir into India Union and mentioned that “Sardar Patel was all the time dealing with these matters.” Even Gopalaswami Ayyangar was dismayed at this blatant lie and mentioned to V Shankar “It is an ill return to the Sardar for the magnanimity he had shown in accepting Panditji’s point of view against his better judgment.”
History has recorded these unfortunate events and it cannot be over written.
Firstly the Central Government can make laws only with concurrence of the State government, practically giving it the Veto power. Article 352 and 360 for declaration of national and financial emergency respectively cannot be applied in Kashmir. While a citizen of India has only Indian citizenship, J&K citizens have two citizenships. Anti Defection Law is not applicable to J&K. No outsider can buy property in J&K state.
The beneficial laws such as Wealth Tax, Gift Tax & Urban Land Ceiling Act and intermarriage with other Indian nationals do not operate in J&K State. Even Article 356 under which President of India can impose his rule in any state cannot be enforced in J&K without consent of the Governor who himself is an appointee of the President. State of J&K can refuse building of any cantonment on any site or refuse to allot land for defence purposes.
The constitution clearly says it is a temporary provision, its revocation is tricky – Under section 3 of Article 370, it was provided that the article can be removed or changed only on the recommendations of Constituent Assembly of J&K and that is why it was called a temporary provision. Since the Constituent Assembly on July 14, 1954 decided that the Article 370, which was temporary in nature, shall remain in force and therefore it became permanent feature of the Indian Constitution. It became un-amendable after the Constituent Assembly ceased to exist after 1957.
A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh, the subsequent series of Presidential Orders have made most Union laws applicable to the State. In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.
The last and important question and present matter of debate, can Article 370 be abrogated? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review, which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended. J&K Constitution was framed under the authority of the Article 370 and Instrument of Accession. If the Article 370 goes then the effect of section 3 of J&K Constitution under which J&K is part of India will also go. Now suppose this argument is countered by Union of India saying even if there is no section 3 of J&K constitution, the State is still part of India because of the Instrument of Accession. But in that case Union of India will face serious problems because Governor General of India Lord Mountbatten, while accepting Instrument of Accession, pledged as soon as the situation after the raid from the Pakistan side (in 1947) becomes normal, people have the right to express their wishes, whether or not to accept the accession and in that case J&K people will have legitimate right for plebiscite.

Hence Article 370 is more likely a contract having perpetual succession between Union of India and state of Jammu and Kashmir. The amending provision of constitution of India, under article 368 therefore, having no significance regarding Article 370. Any attempt to amend or abrogate Article 370 will prejudice the very nature of accession of Jammu and Kashmir to India and the state will have absolute authority to decide the fate regarding whether they have to continue accession with union of India or claim for independent state.

Article 370 of the Constitution of India

Temporary Provisions with respect to the State of Jammu & Kashmir

1. Notwithstanding anything in this constitution:
(a) The provisions of Article 238 shall not apply in relation to the State of Jammu & Kashmir
(b) The power of Parliament to make laws for the said state shall be limited to
(i) Those matters with respect to which the Dominion Legislature may make laws for that State and
(ii) Such other matters in the Said Lists as, with the concurrence of the Govt of the State, the President may, by order specify

1. Explanation. For the purposes of this Article,
the Government of the State means the person for the time being recognised by the President as Maharaja of Jammu & Kashmir, acting on the advice of the council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifty day of March 1948
(c) The provisions of Article (1) and of this Article shall apply in relation to this State
(d) Such of the other provisions of this Constitution shall apply in relation to that State Subject to such exceptions and modifications as the President may by order specifyProvided that no such order, which related to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (1) shall be issued except in consultation with the govt of the State.

Provided further that no such order which relates to matters other than those referred to in the last proceeding proviso shall be issued except with the concurrence of the government of the State.
(2) If the concurrence of the government of the of the State referred to in para (ii) of Sub Clause (b) of Clause (1) be given before the Constituent Assembly for the purpose of framing the Constitution of the State is concerned. It shall be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding the anything in the foregoing provisions of the article, the President may, by public notification, declare that this Article shall cease to be operative only with such exceptions and modifications and from such date as he may notify.
Provided that the recommendation of the Constituent Assembly of the State referred to in Clause (2) shall be necessary before the President issues such a notification.

In October 2015, the Jammu and Kashmir High Court checkmated the temporary provision aspect by describing Article 370, which gives special status to the state, as a permanent provision of the Constitution that cannot be “abrogated, repealed or even amended”. The High Court observations gained significance as an RSS-backed think tank had challenged the constitutional validity of Article 35A in the Supreme Court. A Division Bench of the High Court comprising Justice Hasnain Massodi and Justice Janak Raj Kotwal held that Article 370, though titled as a “temporary provision”, has assumed place of permanence in the Constitution. The court said the Article was beyond “amendment, repeal or abrogation” as the Constituent Assembly of the state did not recommend its amendment or repeal before its dissolution. The High Court observation came in connection with petitions filed by general category government officials to challenge government orders promoting officials junior to them under the Reservation Act and Rules. The Constituent Assembly of Jammu and Kashmir didn’t make any recommendation on amendment or repeal of Article 370 before its dissolution on January 25, 1957, the court added. “Resultantly, Article 370, notwithstanding its title showing it a ‘temporary provision’, is a permanent provision of the Constitution. It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available,” the court observed.
Conversely, in another landmark judgement, the J&K High court in the Division Bench ruling was given on July 16, 2015 in the case titled Santosh Gupta and another etc versus the State Bank of India and others. In this judgement, it was held that various key provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (here and after referred as “SARFAESI”) were outside the legislative competence of Parliament, as they would collide with Section 140 of the Transfer of Property Act of Jammu and Kashmir. The said central Act has been held to be inapplicable to banks such as the State Bank of India, which are all Indian banks.
Aggrieved by this judgement, State Bank of India filed a civil appeal in the Supreme Court, which was accepted on December 16, 2016 by the Division Bench comprising of Hon’ble Justice Kurian Joseph and Hon’ble Justice RF Nariman. In the judgement the Supreme Court has held that the approach of the state High Court was not in consonance with the established law enshrined in the Indian Constitution as well as in the J&K State Constitution. In para no 40 of its judgement, the Supreme Court has held, “The High Court judgement begins from the wrong end and therefore reaches the wrong conclusion.” Furthermore in para no 41 it is held, “It is rather disturbing to note that various parts of the judgement speak of the absolute sovereign power of the State of J&K, which is contrary to the relevant provisions of the Indian Constitution. It is the Indian Constitution, which is only sovereign and the J&K State Constitution is subordinate to it.” In order to buttress its view, the Supreme Court has referred to the preamble of the State Constitution which in clear terms recites that we, the people of the State of J&K, having solemnly resolved, in pursuance of the Accession of this State to India, which took place on October 26, 1947, to further define the existing relationship of the state with the union of India as an integral part thereof. There is no reference to Sovereignty in the State Constitution. It is also relevant that the Supreme Court has reminded the State High Court that the residents of J&K State are first and foremost citizens of India. Indeed, it is recognised by Section 6 of the J&K Constitution also. Section 3 and Section 147 of the J&K Constitution impose bar to introduce any Bill in the State Legislature having a bearing on the Accession made by the Maharaja of the State with Union of India.
Pertinently, Supreme Court of India in IR Coelho V/S State of Tamil Nadu AIR 2007 SC861 declared that the powers of a constituent assembly and the parliament, which is the creation of constituent assembly are not equal. Which clearly means that the power of constituent assembly can never be exercised by the state assembly as the same is not constitutionally competent. Further, if one analyses section 147 of the Jammu and Kashmir constitution it becomes crystal clear that even if the state assembly has the will to go for such an extraordinary measure it can never do so as section 147 clearly says that no amendment can be made to section 147, section 3 and 5 or to the provisions of the constitution of India as applicable to the state of Jammu and Kashmir, therefore article 370 is one of such provision of the constitution of India applicable to the state, which cannot be amended. Kashmiris themselves believe that section 147 puts all speculation to rest by closing further discussion on the abrogation of the article 370 for it says – Article 147 of Part 12 is about amendment of the J&K Constitution, which states that, “No Bill shall be introduced or moved in State Legislative Assembly to amend or change above mentioned articles 3 and 5.” The 1954 resolution of the constituent assembly was followed by the incorporation of Section 3 in the constitution of Jammu and Kashmir, which reads: “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.” Meanwhile, section 5 of the Jammu and Kashmir Constitution will only operate in areas in which Parliament has no power to make laws for the State.
As recently as January this year, soft separatist leader and J&K CM Mehbooba Mufti labelled the people — including members of her alliance partner BJP — anti-nationals for trying to abrogate special status enjoyed by the state under the Indian Constitution by using the judiciary and creating an atmosphere of insecurity. “If we injured the spirit of Article 370, there won’t be bigger anti-national work than this. Those people, who are trying to do that, are the biggest anti-nationals and we shall fight them,” Mehbooba said, while speaking in Jammu and Kashmir Assembly. Mehbooba said, she was aware of ‘some people’ trying to use the judiciary to harm Article 370 of the Indian Constitution, thereby creating an atmosphere of insecurity in the state and vitiate the atmosphere. “I know there have been attempts made to use the judiciary to try to play with the spirit of Article 370, but they, who are doing it, don’t know they are harming India and its interests,” she added.
Therein lies the rub, for the wounds of 2016 haven’t healed and will not heal. Circa 2017 is unlike 2008 or 2010, let us understand this phenomenon and use that as a base for negotiation. The dialogue obviously has to be within the four walls of the Indian Constitution. That remains its starting point. You can run, but you can’t hide, for the preamble to the constitution of Kashmir opens with the declaration: “We, the people of the State of Jammu and Kashmir, having solemnly resolved, in pursuance of the accession of this State of India which took place on the twenty-sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof.” Self determination, anyone?
We may have come a long way from Plebiscite soon after Maharaja’s decision on October 26, 1947, and even as Article 370, accords special status to the State of Jammu and Kashmir as a federating unit of Indian union, this constitutional position and special status now needs to be recalibrated. In any case, over time, it has been eroded substantively – as many as 47 orders have been made applicable to the state of Jammu and Kashmir from 1956 to 1994. Similarly out of the 97 union subjects 94 have been made applicable to the state of Jammu and Kashmir. Of course, one has to give Kashmiris space to pursue their own identity, equally they need space to govern and space for autonomy to pursue their aspirations.
This needle on the clock cannot be turned back. Time for the PM to show statesmanship and sagacity.
@sandeep_bamzai

This post was syndicated from mydigitalfc.com - Home. Click here to read the full text on the original website.

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