I am writing this article as an act of hope and not as a message of despair.
It was on 5 August last year that Articles 370 and 35A were scrapped from the Constitution of India. With this, the limited autonomy that the state of Jammu and Kashmir enjoyed was gone. The separate Constitution of J&K became a nullity. The state was downgraded to a Union Territory.
In my view, the right thing to do would be to request the Supreme Court to deliver its verdict on the question of abrogation of Articles 370 and 35A. In case the court overrides its earlier judgments and upholds the abrogation of these Articles, the right thing to do would be to include the State of Jammu and Kashmir in Article 371 of the Constitution. That has been done in the case of northeastern states. Why can’t similar treatment be given to the people of J&K, a region that also has the special ethnic and historical character that northeastern states do?
A mistaken premise
A couple of questions arise. Was the government of India’s decision lawful? Was it necessary and beneficial?
The justification offered for the legality of this controversial decision was the alleged temporary character of Article 370. Further, it was claimed that its abrogation would strengthen the bonds between the people of J&K and the Union of India.
The mistaken premise of the temporary character of Article 370 was based on the marginal note of this Article read with its Clause (3) that postulated that this Article could be amended and even deleted under certain circumstances.
This premise was mistaken for at least three reasons. First, it is settled law that marginal notes do not indicate or define the substantive meaning of a clause.
Second, Clause (3) prescribes that any change in Article 370 or its deletion could be effected only on the recommendation of the Constituent Assembly of J&K. That Assembly, after adopting the State Constitution, was dissolved in 1956. Prior to that, through presidential orders in 1952 and 1954, it was decided that Article 370 would continue with the extension of various provisions of the Constitution of India to the state of J&K. The illegality of deleting Article 370 by recourse to its Clause (3) is manifest.
On 12 October 1949, Sardar Patel made the following statement in the Constituent Assembly of India: “We have made special provisions for the continuance of the relationship of the state with the Union on the existing basis.”
N. Gopalswamy Ayyangar, while referring to India’s commitment to hold a plebiscite in “Kashmir”, said in the Constituent Assembly: “We have also agreed that the will of the people, through the instrument of a Constituent Assembly, will determine the Constitution of the State as well as the sphere of Union Jurisdiction over the State.”
Most importantly, the Supreme Court in Sampat Prakash vs State of J&K held in 1969 that Article 370 could be removed only on the recommendation of the Constituent Assembly of J&K. The Article had become permanent because the Constituent Assembly did not make any such recommendation before it was dissolved.
Statehood and alienation
It is rather unbelievable that the State of Jammu and Kashmir was downgraded to a Union Territory. According to Article 3 of the Constitution of India, a state cannot be made a Union Territory. The popular perception in both regions of J&K is that this step was punitive in nature. The Centre may be considering the restoration of statehood to J&K. However, the feeling of hurt and humiliation will persist for a long time.
The real and core issue is the restoration of Articles 370 and 35A. The avowed claim that their abrogation will enhance nationalist feelings in J&K does not seem to fructify on the ground. On the contrary, alienation has deepened in silence.
An act of betrayal
One may recall that last year, when controversy arose in the wake of requiring permanent residency certificates from residents of northeastern states, the Centre was prompt and wise enough to allay their fears and assure them that their ethnic and traditional, cultural and political identity would be preserved. Why shouldn’t the same wisdom be displayed with respect to the residents of J&K? Article 371 is a special constitutional provision to accommodate and reconcile special identities within the national identity and polity.
The US, the oldest and most robust democracy, permits dual citizenship to its residents, who enjoy national citizenship and state-specific citizenship. The strength of a nation-state depends not on imposing a straight jacket constitutional formula on all its residents, but by accommodating their respective identities and needs through flexible and pragmatic constitutional provisions and devices. That is what we should expect from the government of India. The irony is that even mainstream politicians of J&K were detained under the Public Safety Act. The message construed here is that of an act of betrayal.
(This article was first posted on ThePrint)
The author is former Deputy Chief Minister of Jammu & Kashmir. He was the advocate general in the state between 1987-89. He was one of the co-founders of PDP and is a Padma Bhushan awardee. Views are personal.