In our previous two posts, we discussed the Constitutional changes made in J & K on 5th August last year. In this post, Zaid Deva shares his thoughts with me on the road ahead for Jammu, Kashmir and Ladakh. Zaid is a 2020 graduate of GNLU Gandhinagar, and a resident of Srinagar. Our discussion has been transcribed below in a conversational format.
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Varun
Kannan: What was your first reaction when you heard about
the changes that were being proposed in Parliament last year? Personally speaking,
it took me a lot of time to digest the magnitude of the Constitutional changes
that were proposed, and the manner in which they were brought about.
Zaid
Deva: 5th August 2019 was the first day of my final year at GNLU. I
had arrived in Gujarat on the 4th of August, in the midst of
mounting concerns for the future of our State in light of the troop buildup and
restrictions. Little could any of us flying from Srinagar airport have known
that the Kashmir we were leaving would be lost and laid siege to in another few
hours.
It would
be too mild an expression to say that I was shocked upon hearing what had
happened. As Shah
Faesal later pointed out in an interview, ‘[after 1953 and 1987] it
was our generation which had got a taste of betrayal from the Indian State’. For
each generation now, there is a story of betrayal. People still mourn the loss
of what was taken away, and fear what the future holds.
Initially,
like everyone else, I thought that the Modi government had done something new
in terms of the nature and magnitude of the changes that were made or the
methods that it employed. But as I read more, I found that there was actually
nothing novel about the move, and that Modi had only followed the footsteps of
his predecessors – Article 370 was altered through Article 367 before as well,
when the position of the ‘Sadar-e-Riyasat’ was changed to the office of the
Governor, in 1965.
The
Indian Constitution had also been applied in its entirety in 1964 through a Presidential
Amendment Order (albeit retaining the modifications that were present in the Presidential
Order of 1954).
The propaganda
that was unleashed before 5th August was along the lines of - ‘everything
was normal’ and there was ‘no need to panic’; and on 5th August, the
narrative suddenly shifted to the ‘new era of peace, prosperity and development’
that the abrogation of Article 370 would usher in.
This was
reminiscent of the events leading up to and after Sheikh Abdullah’s dismissal as
Prime Minister of J & K in 1953 - when Nehru
assured the general secretary of the National Conference on 8th
August 1953 that ‘there was nothing to worry’. Next day, on 9th August
1953, in a New Delhi engineered coup, Sheikh was dismissed from office and
subsequently arrested. With full backing of New Delhi, Bakshi Ghulam Mohammad
announced large scale developmental programmes and economic concessions sounding
the death knell for the Sheikh’s ‘self-sufficiency’ policy.
Its
evident that the approach of the Indian government towards J & K has not
changed. If 1953 could not resolve the Kashmir dispute, it is unlikely that
2019 will.
Varun
Kannan: Before any of the changes were made, the voice of
the residents of J & K was not taken on board in any manner. Then, during
the course of the year, it became very difficult for the residents to express
their views because of the strict curfew, and the ban on communication networks.
As some of these restrictions have been eased partially, what roadmap should be
followed for the year ahead?
Zaid Deva: When we
discuss the possible roadmap for Jammu, Kashmir and Ladakh post abrogation of
Article 370, history has many lessons for us.
The
accession of the Princely State of Jammu & Kashmir to India in October 1947
must be seen in the correct context. Along with J & K, Mayurbhanj,
Hyderabad and Junagadh had also not joined either India or Pakistan after
partition. Hyderabad and Junagadh had a Hindu majority population and a Muslim
ruler. On the other hand, J&K had a Muslim majority population (around 80%)
with a Hindu ruler.
If we
apply Muhammad Ali Jinnah’s two-nation theory, and as a logical conclusion
after Hyderabad and Junagadh joined the Indian dominion - J&K should have
acceded to Pakistan. But, the J & K National Conference headed by Sheikh
Abdullah had rejected the two-nation theory and later on supported J&K’s
accession to India. So, even though the Instrument of Accession was signed by Maharaja
Hari Singh, credibility was lent by Sheikh Abdullah’s endorsement. The
accession was, of course, envisaged to be ratified by way of a referendum.
Assuming
there were no infirmities with the Instrument of Accession as executed by the
ruler (the J&K Plebiscite Front’s White Paper described the ruler at the
time of accession as a ‘lame duck’)[1]
– the Instrument of Accession only vested the Indian Government with competence
to legislate on three subjects i.e. defence, communications, and foreign
affairs. For all other matters, J&K was envisaged to have complete
autonomy.
The final
draft of Article 370, as passed by the Constituent Assembly, was in itself a
dilution of this condition - as it envisaged extending the federal jurisdiction
to the non-acceded subject matters as well, based on ‘concurrence’ of the state
government (we have seen how this was exploited later on). This was not present
in the initial drafts of Article 370 prepared by the government of J & K,
which sought to restrict the Constitutional relationship to the 3 subjects mentioned
in the Instrument of Accession.
The
J&K Constituent Assembly was convened in 1951 to draft a Constitution for
the State and determine the federal jurisdiction, among other things. A year
before, in 1950, the first presidential order was passed under Article 370 - which
applied provisions of the Indian Constitution corresponding to the subjects
specified in the Instrument of Accession. It is worth pointing out that
citizenship provisions were not applied i.e. the people of J&K were not yet
citizens of India. The customs barrier between India and J&K still
remained. The 195o Order was largely in compliance with the Instrument of
Accession.
The
autonomous status’ erosion by abusing Article 370 (and not the provision’s
erosion itself) started as soon as Sheikh Abdullah was dismissed in 1953 -
beginning with the enactment of the 1954 Order which applied almost all of the
entries from the Union List. The J & K Constituent Assembly adopted the Constitution
in 1956 and was formally dissolved in 1957. Many members boycotted the assembly
arguing that it had lost its democratic legitimacy and representative character
after Sheikh’s dismissal.
Even
after the dissolution of the J & K Constituent Assembly, many Presidential Amendment
Orders were passed which applied almost all consequential provisions of the
Indian Constitution to the State. By 1964, the entire Indian Constitution as it
existed then had been applied. The Instrument of Accession, Article 370 and the
Delhi Agreement of 1952 were all disregarded in this process. By 5th August 2019, Article 370 was nothing
but an empty shell, or a husk.
The
reason for mentioning the historical background is to show that the Constitutional
relationship of J &K with India has been shaky, if not on dubious
foundations - even when we assume that the Instrument of Accession was
perfectly valid. The 2019 Orders only add insult to injury – an illegality
mounted on another illegality.
The
future indeed is bleak. So, when we talk about what we should demand in the
near future – simply stating that the pre-5th August position should be
restored is not enough. The Congress has aligned with the BJP in demanding
restoration of statehood – which really is no demand as this is already on the
agenda of the BJP-led government.
The local
political parties must form a united front against this new phase of Indian
aggression and demand restoration of the autonomous status as it existed in
1950, if not the 1947 position. In the long term, steps should be taken to
demilitarize Kashmir and attempts made to fulfill the long-broken promises. But,
this is only possible when there is a change in policy. 1953, 1987, and 2019
are outcomes of the same mindset. As long as India views J & K as a security
concern which must be dealt with militarily and by employing underhanded
tactics, there will be no resolution.
Varun
Kannan: Coming to the issue of identity – is that not
the biggest fallout of the Centre’s decisions? As a resident of J & K, what
would you say regarding this feeling of alienation and betrayal?
Zaid
Deva: With great hopes and expectations, J & K had acceded to
India. But, as Sheikh Abdullah laments in his autobiography, Aatish-e-Chinar
– “instead of treating us as comrades, they [the Indian leaders] tried to
dominate us and interfered in our internal affairs”. He goes on to say that
‘Nehru was influenced by Machiavelli’s doctrines and practiced them with us
in Kashmir’.[2]
Somehow,
everyone who’s ever supported India has been disillusioned later. From Sheikh
Abdullah to even Bakshi Ghulam Mohammad. After his premiership, Bakshi is
reported to have signed
with his blood a certain vision document prepared by Maqbool
Bhat. Like I said earlier, it is our generation’s turn for betrayal and
disillusionment.
On identity,
I am reminded of what one of my professors told me later in the day on 5th
August last year, that ‘a people’s identity cannot be circumscribed by an
article of a Constitution’. But to answer your question, yes, there is a
sense of loss of identity after abrogation of Article 370. This has been
exacerbated by issuance of domicile certificates to erstwhile non-permanent
residents, under the new domicile policy that was notified in April by the Home
Ministry.
This
feeling of a loss of identity is not restricted to J & K, but also extends to
Ladakh. Recently, the President of the Ladakh Unit of the BJP had resigned, and
this was not even covered in the mainstream media. The Kargil units of Congress
and the National Conference have also demanded reintegration with J & K. The
status of permanent resident-ship under the State Constitution and Article 35A
of the erstwhile Indian Constitution as applicable to J & K substantively
guaranteed better protections. The new domicile rules of course do not offer
similar protections.
With each
passing day, it is becoming clear that the 5th August misadventures
were aimed at appeasing BJP’s Hindu votebank and altering the demography of the
erstwhile State.
Varun
Kannan: Coming to Article 35A, do you think the Government
had a strong justification to abrogate it?
Zaid
Deva: There is a good amount of misconception surrounding the scope
and ambit of Article 35A. Article 35A was not a power-conferring clause. The
power to define permanent residents was derivable from the J & K Constitution.
Article 35A merely embedded in the Constitution what was agreed to between
Nehru and Sheikh Abdullah in the Delhi Agreement. The provision was under
challenge before the Supreme Court as well.
Suppose
it had been struck down by the Supreme Court, or if the Indian government had repealed
it by way of an amendment order, the rights of permanent residents would not
have disappeared automatically. The only question then, that the Supreme Court
would have been called upon to answer is this: whether the rights of permanent
residents emanating from the state Constitution gain precedence over the
fundamental rights of Indian citizens who are non-permanent residents?
One of
the justifications given for abrogating Article 35A was that it deprived West
Pakistani refugees from getting the status of a ‘permanent resident’ of J &
K. But, this was not due to Article 35A – as Article 35A itself does not define
who a ‘permanent resident’ is, as I pointed out above. Hence, if denial of
permanent residency for West Pakistani refugees was a problem, that could have
been rectified without abrogating Article 35A.
Another
justification was that the special laws enacted for permanent residents
prevented women from marrying outside the State, as that would lead to the
woman losing her permanent resident rights. But, even this was not true, as the
J & K High Court had clarified in a 2003 decision that a woman
marrying a non-permanent resident does not lose her permanent residency status.
I believe
the debate on Article 35A was engineered in a way which would lay the
groundwork for 5th August. The petitions challenging the provision
in the Supreme Court is a case in point (one of the petitions was filed by a BJP
leader, another by an NGO, which one
writer described as ‘RSS inspired’). That’s why doing away with the State
Constitution became necessary - to obliterate notions of a distinct identity,
and to allow the government to change the demography of J&K unfettered.
Varun
Kannan: Another change made was the repealing of J &
K’s separate Constitution. As per Section 147 of the erstwhile J & K Constitution,
even the Legislative Assembly of J & K did not have the power to repeal
this Constitution in its entirety. Parliament also did not have the power to
amend this Constitution. Doesn’t that automatically make the ‘repeal’ of the
separate Constitution unconstitutional?
Zaid
Deva: Its unclear to me what the status of the J&K Constitution
is, post the abrogation of Article 370. A Constitution which enjoys the
sanction of a Constituent Assembly cannot be nullified by a Presidential Order
or a statutory resolution. We must remember that this Constitution was
independent of Article 370. Its presence or absence did not hinge on Article
370 - as it was framed and adopted by the Constituent Assembly of J & K.
Since the Constituent Assembly did not in any way derive its authority from
Article 370, linking the State Constitution to Article 370 is fallacious.
I think
it is more appropriate to say that the State Constitution has been rendered
irrelevant, or has been superseded by the application of the Indian Constitution.
The new Article 370 states that all provisions of the Indian Constitution shall
apply to J&K - ‘notwithstanding anything to the contrary in the Constitution
of J & K’.
‘Abrogating’
the separate Constitution has more to do with the Government’s stated objective
of “One Nation, One Constitution, One Flag”.
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Varun
Kannan: Was this narrative of “One Nation, One Constitution,
One Flag” meant to fit in with the Government’s claim of having ‘completely
integrated’ J & K with the rest of India?
You also
mentioned in the beginning that even before 5th August 2019, Article
370 was an empty shell or a husk, and had almost been eroded in its entirety.
So, in conclusion, what exactly has the Government achieved by amending Article
370?
Zaid
Deva: This narrative of “One Nation, One Constitution, One Flag”
represents a very regimented vision of nationhood.
In fact
the promise of ‘One Constitution’ has still not been achieved. Under Section 13
of the J & K Reorganization Act, Article 239A of the Indian Constitution
has been applied to J & K. Under this Article, the Parliament can make a
law for establishment of the Union Territory; and even if the provisions of
such a law have the effect of amending the Constitution, it shall not be
treated as an amendment in terms of Article 368. If before August 2019, the
Indian Constitution as applicable to J & K could be amended by an executive
order, now it can be amended by an ordinary exercise of law-making.
At least
as far as Article 370 is concerned, the Government’s claims of repealing it for
‘complete integration’ of J & K were nothing more than symbolic or
ideological. I think the biggest loser after the abrogation of Article 370 has
been the Indian State. It is unlikely that those, however little they may be in
terms of numbers, who supported J&K’s accession to India (or had largely
settled with the status quo), will accept the new political realities. The
ruthlessness with which Article 370 was abrogated only went on to prove what
the detractors of J & K’s accession to India had been arguing for long.
The
dismissal of Sheikh Abdullah’s Government in 1953 defined the course of events
for the next 20 years or so. After 1953, it was a new generation in 1987 which
was betrayed leading to the insurgency lasting up till the turn of the century.
Those who had come to believe in the institutions of Indian democracy - their
beliefs were shattered with the brazen rigging in elections. I am afraid we
might be witnessing the beginning of a new phase of violence after 5th
August 2019.
I would like to thank Zaid for expressing his views so candidly. Zaid has also written a paper on this issue - where he has inter alia argued that the autonomous status of J&K inheres in the State, as the J&K Constituent Assembly designed the State’s Constitutional relationship with the Union.
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