Kashmir: A New Approach towards Peace
The Kashmir is under the vicious cycle of peace and violence for a long period of time. This perpetual cycle is also posing serious internal security challenges for India. The government has taken a drastic step towards ending this perpetual cycle by taking steps to abrogate Article 370 and Article 35A.
Approaches towards Enduring Peace
Under this approach, India would continue its current constitutional arrangement with Kashmir and maintaining an unrelenting security posture in the Valley. This is what the current approach until now was.
To maintain this status quo, it requires an extensive and expensive counter-insurgency grid in Kashmir. But this also means India has to live with the current level of casualties and economic costs involved in maintaining our presence in Kashmir.
This approach eventually expects that a war-weary and traumatised population will tire out. This lack of local support caused by weariness will persuade the jihadi separatists and their mentors in Pakistan to back off and the insurgency will fade away.
This approach is what is propagated by the separatist groups. As per their views, India has a very weak legal and moral case in Kashmir. The approach perceives Kashmiris as perpetual victims and the Indian state and its agencies as permanent villains.
This approach propagates conceding to all the demands of Kashmiri separatists, which may range from complete autonomy to outright independence or merger with Pakistan.
But this approach glosses over the views of the people of Jammu and Ladakh and also ignores the repercussions for the idea of India.
The secession of Kashmir may give rise to other sub-national aspirations based on ethnicity, language, and religion. Since the narrative is driven on religious line and Islamist ideology it would seriously impact Hindu-Muslim relations in the rest of the country.
This assimilation approach is based on the belief that the separatist sentiment and the militancy in the valley draw sustenance from the constitutional arrangements, namely Articles 35 A and 370 which define the state’s relationship with India.
The propagators of this approach advocate dismantling this structure. Since these Articles have frozen the demography and politics of the state and skewed it in favour of the separatists from the Kashmir Valley.
Challenges in Implementation
But the implementation would see large scale violence and further annihilation towards India. Further, there are similar arrangements in other parts of the country which restricts the rights of non-natives (scheduled areas). The departure from the long-standing arrangements would portray India in a bad light in the international forums and may picture India as an aggressor.
Genesis of Article 370 and Article 35A
As India agreed for partition and gained independence on 15th August 1947, the princely state of Jammu and Kashmir, under the rule of the Dogra ruler, Maharaja Hari Singh, chose to maintain the state’s autonomy and wanted both India and Pakistan to recognize it as a princely state.
But in turn down of events, the Jammu and Kashmir forces could not avert an invasion by the frontier tribesmen supported by the Pakistani Army in the state’s border town of Domel. The Maharaja turned towards India for help in desperation.
India provided a conditioned help and the Instrument of Accession was signed. This instrument of accession entrusted upon India the defence, communication, external affairs and such other ancillary functions on behalf of the State of Jammu and Kashmir.
Article 370 incorporated these provisions in Part XXI of the Indian Constitution. Though Article 370 was ‘temporary, transitional and special’ in nature, no attempts were made to repel it. Article 370 was aimed at safeguarding the identity of the people by decentralizing governance which would enable them to harmonize their aspirations with that of the nation as a whole. Some of the important provisions under Article 370 are:
- Jurisdiction of the Parliament: The Parliament’s power to make laws for the state are limited to only those matters in the Union and the Concurrent list which are related to the terms of the Instrument of Accession.
- Part IV (Directive Principles of the State Policy) and Part IV-A (Fundamental Duties) of the Constitution do not extend to J and K. The state has its own set of DPSPs which are not enforceable by the court.
- Right to property is a fundamental right in the state. Only permanent residents have the right to property and to vote. Permanent residents have special rights with respect to education, public employment, acquisition of immovable property etc.
- Emergency provisions: A National Emergency which has been declared only on the grounds of external aggression can be extended to the State. The Governor’s rule can be imposed in effect of the breakdown of the Constitution of the J and K. But since 1964, Article 356 regarding President’s Rule was also extended to the State. However, the Centre does not have the power to declare a financial emergency under Article 360 of the Constitution of Indi
- An amendment to the Constitution can be extended to the state only by the means of a Presidential order.
Article 35A was inserted into the constitution via the Constitution (Application to J&K) Order, 1954. It was issued by the then President Rajendra Prasad under Article 370 on PM Nehru’s advice.
Article 35A allows the state legislature to define the permanent residents of Jammu and Kashmir. In pursuance of the order the constitution of Jammu and Kashmir at the time of its adoption in 1956, defined a permanent resident as someone who was a state subject on May 14, 1954, or who has been a resident for 10 years and has lawfully acquired immovable property.
Article 35A was also a point of controversy owing to the fact that it deprives the state’s female residents of property rights if/when they marry an ‘outsider’. The provision also extends to children born of any such women.
Changes Proposed by the Government
- The President Ram Nath Kovind has promulgated the Constitution (Application to Jammu and Kashmir) Order, 2019, stating that the provisions of the Indian Constitution will henceforth be applicable to J&K. Together with withdrawing the some of the special provisions it amends Article 367 of the Constitution to add clause 4.
- The presidential proclamation says: “All the provisions of the Constitution shall apply in relation to the state of Jammu and Kashmir.”
- A separate Union Territory will be created for Jammu & Kashmir with legislature keeping in view the prevailing internal security situation, fuelled by cross-border terrorism in the existing state of Jammu & Kashmir.
- A separate Union Territory for Ladakh together with Leh region will be created but without legislature to fulfil long-pending demand of people of Ladakh to give it a Union Territory status to enable them to realise their aspiration.
- Clause 3 of Article 370 empowers the President to issue a notification at any time that Article 370 has ceased to exist. But President can do so only after the recommendation of the Constituent Assembly of Jammu and Kashmir. Since the Constituent Assembly of the state was dissolved in 1956, the legislative assembly as its successor holds the powers to make this recommendation.
- As the state of Jammu and Kashmir is under President’s rule. As per the Constitution, when a state is under the President’s rule, it is Parliament that has the powers of the state assembly. The parliament will now recommend the President for altering the special status.
- Also, the President is bound to refer the bill to reorganise the state to state only after referring to the State Assembly. Since the state of Jammu and Kashmir is under President Rule, the provision has been bypassed.
Article 367: Clause 4
For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir:
- References to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;
- References to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;
- References to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and
- In proviso to clause (3) of article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.
The Constitution (Application to Jammu and Kashmir) Order, 2019 comes into force “at once”, and shall “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954”.