Saturday, September 26, 2020
 
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Post Article 370: No Quick Results, Long Road Ahead
Straight Talk



K B Jandial



One year after the historic “abrogation” of controversial temporary Article 370 of the Constitution of India by the Parliament with two third majority, one doesn’t find any euphoria in the downgraded UT of Jammu & Kashmir, even in Hindu majority Jammu region. At national level, the anniversary is overshadowed by the bhoomi pujan at Ramjanmabhoomi at Ayodhya which created much greater euphoria pan India than the “scrapping” of contentious provisions in Article 370. Bifurcation of the State into two UTs whose boundaries were extended up to Tibet by Maharaja Gulab Singh didn’t go well with any section of the population except Leh. It is viewed as political disempowerment. Whether the anniversary of “abrogation” of Article 370 really deserves celebrations, a debatable issue but it does call for introspection on realisation of the intended objectives that guided this critical constitutional move.


It is wrong to say that J&K integrated with rest of India only after amendment of Article 370. J&K was integral part of India by virtue the instrument of accession signed by Maharaja Hari Singh on 26th October, 1947 and the fact reinforced by Article one of Indian Constitution whose First Schedule reflects J&K as one of the Indian States at Sr no 15 and the preamble & Section 3 of J&K Constitution. This is the constitutional position statements to the contrary by some political leaders notwithstanding. What the new Article 370 has done is to emotionally integrate J&K with Indian nation. Subject to the verdict of the Apex Court on the vires of this amendment, this is the biggest gain of this move. But again it is mainly restricted to Jammu and Ladakh and not in Kashmir where the people by and large are either resentful or indifferent even after one year.



The constitutional move of August 5-6 of 2019 involving amendment of the provisions of Article 370 on the recommendations of the Parliament has extended to J&K State all provisions of the Constitution of India amended from time to time, but not with any “modification & exceptions”. This expression was used in the original provision of Article 370 that empowered the President to extend the provisions of Constitution to J&K with the concurrence of State Government with “modification & exceptions” and this is how another controversial Article 35A came into being through Constitution (Application to Jammu and Kashmir) Order 1954. Neither the order of 1954 nor the President’s power exists now. And with this goes Article 35A which protected brazenly discriminatory State Subject law. This is the first immediate gain.


Ideally, J&K should have been like any other State of India like Punjab, Haryana, UP etc in respect of Govt jobs and purchase of property for which its founder Syama Prasad Mookerjee laid down his life. But the Govt, later on brought in Domicile law which again barred “outsiders” from competing for Govt jobs as hitherto. Unlike HP it didn’t come up with one policy but made this Domicile Law for Govt jobs only, law for sale & purchase of land is yet to come even after one year. So, the “outsiders” cannot yet buy property here despite making a big issue of full integration. In a way, a few restrictions of State subject law have come back with relaxation for some categories.



But this doesn’t dilute its positive aspect. Long awaited justice has been done to West Pakistani Refugees settled on State land and Harijans brought from Amritsar fifty sixty years ago by Jammu Municipality for cleanliness who have been residing here for decades but deprived of State Govt facilities available to permanent residents like admission in Govt educational & technical institutions, scholarships, jobs, voting in Assembly & civic body elections. The appalling discriminatory State Subject law was not true copy of Maharaja Hari Singh’s notification.The Constituent Assembly of the State deliberately omitted one important Class III of Maharaja’s notification of 1927 which said that other persons would also be State Subjects if permanently residing within the State, “who have acquired under a rayatnama any immovable property therein or WIZO may hereafter acquire such property under an ijazatnama and may execute a rayatnama after ten years continuous residence therein”. While this clause was not adopted but the State Constitution provided another window in sections 8 & 9 which empowered the legislature to define or alter the definition of Permanent Residents. But the successive State Govts including the alliance Govt having sizeable Jammu representation chose not to use this provision & kept hanging this issue including issue of inheritance by children of women married to non-State subjects. Was this not done merely because the beneficiaries were mainly non-Muslims? Had this been done by the State Govt, most of the anger against Article 370 would have been eased long back but Kashmiri leadership always saw threat to Muslim majority even though the number of beneficiaries wasn’t more than a lakh in the past.


The Domicile law has some intriguing provisions also; some of which created concerns in Kashmir and Umar Abdullah too spoke about it. First of all, Domicile should have been granted to those identified non- PRCs categories only if they are still residing in the UT but it included those had lived. One category made eligible is those who has studied for seven years in any educational institution and appeared for 10th/12th class examination in the State? Who are these people?


Using Article 370, Kashmir was fed with a sentiment that State’s “Accession was conditional” as it acceded to India with only three subjects projecting J&K as a separate entity with little control of Delhi. This willfully erroneous perception was created by selectively interpreting clause (1) (b) (i) of Article 370. In fact, it only limited the “legislative power of the Parliament” to three subjects in Union & concurrent lists and had nothing to do with Accession. Moreover, the subsequent provisions in sub clause (ii) of Article provided mechanism for extension of other Articles of the Constitution to J&K with concurrence of State Govt. The framers of this Article, including Sheikh Abdullah knew it that other constitutional provisions too were beneficial for the people of J&K and consciously, a mechanism was placed in Article 370 to extend provisions in due course of time. Apart from the politics of Article 370, how it was possible that constitutional provisions and laws made by the Parliament with participation of MPs from J&K were good for 134 crores of Indians but not for over a crore people of J&K. Isn’t it intriguing?



While Jammu & Ladakh remained by and large happy over constitutional changes but Kashmir has a different picture. While Kashmir didn’t protest spontaneously the people were sore over it. Fed up from Kashmir’s mainstream leaders, people were “happy” that they were behind bars.



Dr. Farooq Abdullah and Umar Abdullah have started speaking out recently, seeking restoration of Special Status after keeping quiet for some time after release, fueling speculation of some “understanding with the Centre” but Umar discounted it. Abdullahs have demanded restoration of special status and statehood but luckily restrained themselves from crossing the red line, leaving the fight to the Supreme Court. Demand for restoration of special Status and Statehood is not anti-national and in fact, it should be debated publically and expose the vested interest for depriving the people by obstructing progressive provisions like 73rd & 74th Amendments and benefits of scores of central schemes and programs.

With almost all mainstream political leadership under detention, Kashmir had political vacuum nearly for a year. Even the separatists were not active and Syed Ali Shah Geelani finally called it a day by disassociating from Hurriyat Conference. He made it public his dismay over internal inertia in post Article 370. Mirwaiz Omar Farooq too remained passive. These are significant developments.


While some analysts attribute lack of public protests to detention of political leadership Umar Abdullah attributed it to “protest fatigue”. But it was more than that. People preferred to remain within homes and by and large, avoided violence. Security forces were deployed in good strength in 2010 & 2016 turmoil during political Govts but angry and motivated people thronged the streets and indulged in violence, shedding blood all around. Protest is either spontaneous or engineered. Yes, politicians were not on the scene and these could not be engineered. Modi Govt has checkmated them. It was a good portent for Kashmir especially when Pakistan and few local politicians were expecting blood to spill on the streets of Kashmir in the aftermath of abrogation of Article 370 but the people didn’t oblige them. But it should not be taken as acceptance of this constitutional change. Seventy years of accumulated venom and abhorrence cannot be expected to be soften in just few months especially when the process of “winning the mind & heart” of people has yet to start. It’s a long journey and the Govt have to move cautiously. Social media is putting out data to show how little involvement of Kashmiri bureaucrats is in decision making including at Advisors level.


Finding political vacuum, a new outfit with realignment of political forces- APNI Party has come into existence with the blessings of the Central Govt. Within a week of its existence, it succeeded in reversing a MHA’s notification reservation for Domiciles in 36 hours and made all Govt jobs reserved for Domiciles. Released top leaders too have yet to reach out to their cadre or even held any Party meeting. Some leaders are still detained.



One year is too small a period for Kashmir to adjust to new constitutional changes. With revival of mainstream political activities, Govt has to be on guard in months ahead especially in view of Pakistan trying to exploit the occasion. The Govt has already slapped curfew in Kashmir for 4th & 5th August.



The past recruitment was usually marred by favourtism, nepotism and corruption and often reflects regional & communal bias. Ending this system is yet another challenge. Initiative has been taken to rationalize it to ensure free, transparent and non-discriminatory system by notifying Jammu and Kashmir Appointment to Class-IV (Special Recruitment) Rules, 2020. About 10,000 posts of Class-IV have been advertised and written test will have primacy in the selection as there will be no interviews. But nothing has been done at higher level posts. For the last one year, no recruitment had taken place through PSC which stood reconstituted recently. Youth have every reason to be restive before or after constitutional changes.



It would be wrong to be complacent over increased successes in anti-militancy operations and elimination of top brass of militants. The flow of local youth joining the ranks of militants, even 42% less as compared to the previous year is still a matter of concern. The Govt needs to look at the situation beyond military option and think of outreaching all mainstream political forces of Kashmir especially those having international reckoning at a time when Pak-China are out to isolate India. Rising above their petty political interest, Modi Govt must encourage political process and overcome the existing trust deficit due to “abrogation” of Article 370. The suspicion of “changing demographic character” of UT in the garb of Domicile law must be addressed.



(Author is a retired IAS officer) feedback: [email protected]





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