Article 370 went against the idea of Bharat
Under its cover, Pak-sponsored terrorism and separatist forces were fostered.
Government of Bharat’s decision to amend Article 370 and remove 35A, combined with the bifurcation of Jammu and Kashmir (J&K) state into two union territories has surprised, baffled and shocked many. During the debate in Parliament the Opposition parties argued that this move was unconstitutional and against the people of Jammu and Kashmir.
THE CONSTITUTIONAL POSITION
Bharat, at the time of Independence on 15 August 1947, comprised more than 560 princely states. They were given only two options, either to join Bharat or Pakistan. No state was permitted to remain independent by the outgoing British government. The Instrument of Accession to Bharat signed by the ruler of Jammu-Kashmir state, Maharaja Hari Singh, on 26 October 1947 was no different from all the other princely states that acceded to Bharat.
But before the Instrument of Accession was signed, Pakistan army invaded Kashmir in the guise of Kabailis (tribals) to capture forcibly the entire Kashmir that was Muslim majority. Though the state of Jammu & Kashmir was saved with the timely intervention of Bharatiya forces, some territory of the state remained under the illegal occupation of Pakistan, which is known as Pakistan Occupied Jammu & Kashmir, POJK. The process of accession was complete, but as the matter was pending with the UN and some territory was under illegal occupation of Pakistan, the Bharatiya government wanted some time to normalise the situation for implementing the Bharatiya Constitution in totality to the newly accessed J&K state. For this, Article 370 was invoked till things got normal and it was mentioned that it would be temporary in nature. Defence, security, judiciary and foreign affairs were under the Central government and all other matters were to be dealt with by the J&K state Assembly.
But because of Pandit Jawaharlal Nehru’s bias for Sheikh Abdullah and his communal politics, Article 35A was introduced undemocratically, surreptitiously, merely by a Presidential order in 1954, without the approval of Parliament. This was the main culprit and cause of all the trouble that gave the state powers to decide upon who the permanent resident of J&K state would be. This Article was anti Scheduled Caste (SC) and Scheduled Tribe (ST), and discriminatory to women.
The state of J&K does not comprise people living only in Kashmir valley, but also includes people of Jammu and Ladakh regions. The benefits or losses due to Article 370 should be reviewed in entirety and not just be limited to the valley. Under the cover of this Article, Pakistan-sponsored terrorism and separatist forces were fostered to keep the state unstable in the name of religion and politics, warring against the Indian security forces that were brought here to protect the people.
This act of amending Article 370 and removing 35A to extend all the Constitutional provisions to the state of J&K by the Government of Bharat is nothing but fulfilment of the promise given to the people of Bharat.
The Part 2 of the Constitution of Jammu and Kashmir, 1957 mentions in Article 3, titled “Relationship of the State with the Union of Bharat” that: “The state of Jammu and Kashmir is and shall be an integral part of the Union of Bharat.”
“Article 370, Temporary provision with respect to the State of J&K” Section 3 mentions that: “Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify.”
In 1964, a private bill in Parliament to amend Article 370 by a member, Prakashvir Shastri got unanimous support from all the members belonging to various parties. Those who spoke in support of this bill to delete Article 370 included socialists like Ram Manohar Lohia, Madhu Limaye, Hari Vishnu Kamath, Communists like N.C. Chatterjee, Sarjoo Pandey, MPs from Congress like Bhagvat Jha Azad, S.M. Banerjee, K. Hanumanthaiya and four MPs from Jammu & Kashmir. There was a consensus among the MPs that Article 370 was a hindrance in the development of J&K. The MPs, especially those from J&K emphasised that it was a threat to national unity and integrity.
Gopal Datt Mengi, MP from J&K lamented that Article 370 was a “curse” for J&K. He said that “Article 370 does not give us any special status, rather it has made us second class citizens in our own country. It is a wall between India and J&K.” Another MP, Abdul Ghani Goni from J&K, who was also a close associate of Sheikh Abdullah, brought to the notice of the House the hindrances created in the overall development of the state due to the implementation of Article 370. He unhesitatingly said that “the then Prime Minister of J&K, Bakshi Ghulam Mohammad had moved for abrogation of Article 370, but the Central government was not agreeable to it at that time. I do not know whether the Central government is under the influence of the West or wants appeasement policy towards Pakistan…they want to please their neighbours at our cost.” Adding to the above points of discontent one more MP from J&K, Syed Nasir Husain Samnani, asked the House the reasons for not abrogating Article 370. He asked what the fault of the people of J&K was that Article 370 was not abrogated: “We, the people of Kashmir never demanded that we should be treated differently. We do not want Article 370. I want to end this curse in my lifetime, for my safety, for my children’s safety, for the safety of our future generations.” In spite of such historical support, the bill was not passed because it was a private members’ bill. Citing some technical issues, Congress wanted a better method to abrogate Article 370.
In 1994, the Congress-led government under the leadership of P.V. Narasimha Rao, in Parliament of Bharat passed a historic unanimous resolution that J&K state is an integral part of Bharat and the only outstanding issue is to get back POJK from Pakistan. This shows that the removal of the temporary Articles 370 and 35A was a national consensus. That is why though a major opposition party, Congress opposed the move of the present government officially, there were rumblings and divisions in the opinion of the Congress party itself.
All these facts make the Constitutional position clear that Article 370 was always temporary in nature and had to go some day. This decision will help all the residents of J&K to join the nation in its journey towards development, prosperity and democratic practices. Under the alibi of special status, which continued to be temporary even after 70 long years, benefits of reservation in education and jobs were deprived to Scheduled Castes and Scheduled Tribes. Because of the restrictions in purchasing land, no investors were ready to invest in establishing premier educational institutions, multi-speciality hospitals, and industries, depriving the people of J&K facility of quality education, health services and job opportunities for the youth.
TAKING DEMOCRACY TO J&K
Article 370 was a temporary provision and our Constitution makers were clear about it. Still, under the guise of special status, only politics was played. The misuse of Article 370 led to the insertion of 35A through a Presidential Order, without any parliamentary approval. This provision created many Constitutional anomalies and deprived J&K from the real taste of democracy and governance.
This deadly combination of Articles 370 and 35A, dynastic politics, nepotism and communalism was in play, misusing the large amount of funds allocated by the Central government for development of the entire J&K state. A major chunk of the allocated funds was surreptitiously routed to benefit largely a few dynastic families and some separatist groups resorting to terrorism. In other Indian states, there is a Constitutional provision to appoint a Lokayukta, a judicial authority to oversee utilisation of government funds and curb corruption in the system. This special status of J&K prevented the appointment of the Lokayukta, lest all the political corruption and misuse of the allocated funds got exposed.
The RTI Act also has been helpful in curbing corruption and misuse of power in Bharat.
This will bring RTI Act and Lokayukta to check corrupt practices by administration, helping clean and smooth governance.
This decision has put all women at par with men in regards to choosing their life partners. Under the cover of special status, injustice was done to the women in J&K. A man from J&K can marry any woman from outside the state, but if a woman marries a person from outside of J&K, she will be deprived of any rights in her ancestral property.
The decision has also removed the injustice suffered by 25,000 Gorkhas living in the state.
Gorkhas settled in Jammu & Kashmir in the 19th century. A majority of them were soldiers who fought in the ranks of Maharaja Ranjit Singh of Punjab, who ruled J&K till 1846. This proves that they were staying and serving the people in Jammu & Kashmir even before 1846. Article 35A had deprived these people of rights as they were not given the Permanent Resident Certificate.
This historic decision will help 22,000 families of West Pakistan refugees to live a dignified life as free citizens of Bharat. Even after more than 70 years, these West Pakistani refugees were bearing the brunt of being refugees and cannot be a part of the national mainstream.
The Valmikis, who belong to the Scheduled Castes, were brought to work as sweepers from Punjab in year 1957. Nobody among the 15,000 Valmikis today, however educated, are entitled to do any job other than as sweepers. Now, all this inhuman injustice that was shielded under the draconian Article 35A, undemocratically put into practice, is undone.
This important decision has kindled hope in Kashmiri Pandits to end the life of living as refugees in their own country and opened the option and possibility of resettling in their ancestral land. The darkest day in the history of India and humanity was violent and forcible expulsion of Kashmiri Pandits peacefully living in Kashmir valley and greatly contributing to the economy of the state. Only because they were Hindus nobody raised this issue of blatant violation human rights.
The people of Ladakh, mostly Buddhists and Shia Muslims, were remotely connected with Jammu and Kashmir region because of its special topography and extreme climate. This area was subjected to neglect and stepmotherly treatment by the incumbent governments. They had a long standing demand for separate union territory, which has been granted and all people cutting across political identities are happy there.
During the discussion in Parliament some leaders termed 5 August as a dark day for Kashmir. Actually, the surreptitious introduction of 35A in 1954 was the dark day for the state of J&K. Moreover, a darker day in the history of J&K was in 1989 when peaceful, wealth creating Kashmiri Pandits, Hindus, were forcibly ousted from the valley, after being terrorised at gunpoint. 5 August can be a dark day for only those who have indulged in dynastic politics and patronised and commercialised terrorism in the name of Islam.
The incumbent BJP has all reasons to take this much needed and long awaited step to remove the Constitutional anomaly as it has always consistently put forth its stand regarding this temporary provision of J&K state. The founder of Bharatiya Jan Sangh, the party which eventually became BJP, Dr. Shyamaprasad Mookerjee led an agitation for the complete integration of J&K. He was jailed and died there in suspicious circumstances. The BJP has always demanded and promised the abrogation of Article 370 if voted to power. In this recent election also the incumbent BJP had clearly mentioned that if voted to power they will take measures to abrogate this temporary provision. The people of Bharat have given them stronger mandate to fulfil the promises given in their manifesto.
In 1953, RSS passed a resolution and supported the movement led by J&K Praja Parishad for “complete integration of J&K state with India”. Since then RSS has passed resolutions innumerable times and occasionally conducted people awareness campaigns throughout the country about the anomaly of Article 370, a temporary provision. The last resolution passed by RSS was in 2010, where it stated: “Article 370, which was included in our Constitution as a ‘temporary and transient provision’, instead of being abrogated, continues to be a tool in the hands of the separatist and secessionist elements.”
As usual, much has been said unfoundedly about RSS and its misconstrued communal agenda. What RSS thinks about Muslims in India is very clearly elaborated in an interview of M.S. Golwalkar, Shri Guruji, the then Sarsanghachalak of RSS, given to a senior journalist Saifuddin Jilani in 1972.
I reproduce an excerpt here for the benefit of readers.
“Dr Jilani: Much has been said about ‘Indianisation’ and a lot of confusion has arisen over it. Could you please tell me how to remove the confusion?
“Shri Guruji: ‘Indianisation’ was of course the slogan given by Jana Sangh. Why should there be such confusion? ‘Indianisation’ does not mean converting all people to Hinduism.
“Let us all realise that we are all the children of this soil and we must have our allegiance to this land. We belong to the same society and share common ancestors. We also share common aspirations. Understanding this is ‘Indianisation’ in the true sense.
”Indianisation does not mean that one should be asked to quit his religious system. We neither said this, nor are we going to say so. Rather we believe that a single religious system for the entire human society is not suitable.”
During a recently held lecture series, Dr Mohanji Bhagwat said, the Sangh works for the feeling of fraternity and the only basis for this fraternity is “unity in diversity”. “The world terms this traditional thought process as ‘Hindutva’. That is why when we say our nation is a ‘Hindu Rashtra’, it, in no way, conveys that we don’t need Muslims. The day it will be said that Muslims are not required, it won’t remain ‘Hindutva’.” And there is no need to say separately, that this applies also to the state of J&K that inherits thousands of years of civilisation like the rest of Bharat.
After two weeks of this historic decision, I had a chance to visit Jammu, Srinagar, Kargil and Leh as part of my routine travel plan. I got a chance to interact with some local people. The people of Kargil and Leh were happy about getting the UT status, which was their long standing unanimous demand. I met one Muslim advocate from Zanskar valley who was earlier with People’s Democratic Party (PDP), but was expelled for supporting the demand of UT for Ladakh. In Jammu and Srinagar, I was asked a common question by locals as wouldn’t it have been better if Jammu and Kashmir were made two separate UTs instead of one. I replied that that would be wrong as it was against the very idea of Bharat and an endorsement of the idea of Pakistan that Hindus and Muslims cannot live together. It is the idea of Bharat that irrespective of religious or other diversities we have a long tradition and history of living together in harmony. That is the very idea of Bharat.
Dr. Manmohan Vaidya, Sah Sarkaryavah, RSS
The Article was first published in https://www.sundayguardianlive.com