by A.G. NOORANI*
*The author is an eminent Indian scholar an expert on constitutional issues.
Abstract
(“The perfidious betrayal of the people of Kashmir by Jawaharlal Nehru from 1947-1964 was repeated with greater force and deceit by the RSS Government of India headed by Narendra Modi on 5 August 2019. His party, the BJP, a wing of the RSS, had pledged to “abrogate” Article 370 of the Constitution of India which was crafted to guarantee the autonomy of the State of Jammu & Kashmir. He has gone further, still. By abrogation was meant removing the special safeguards for autonomy of the only state which had a Muslim majority. India has done far worse. It has destroyed the State altogether and reduced it in law to what it was in fact, a colony of India.” Author.
In this article, the author has viewed this scheme from three aspects – international, constitutional and political. – Editor)
“And I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion – presuming, of course, that the people of Kashmir do not want it. Are we going to coerce and compel them and thereby justify the very charges that are brought by some misguided people outside this country against us?…
“Do not think you are dealing with a part of Uttar Pradesh, Bihar or Gujarat. You are dealing with an area, historically and geographically and in all manner of things, with a certain background. If we bring our local ideas and local prejudices everywhere, we will never consolidate. We have to be men of vision and there has to be a broadminded acceptance of facts in order to integrate really. And real integration comes of the mind and the heart and not of some clause which you may impose on other people.” – Jawaharlal Nehru in the Lok Sabha on 26 June 1952.
The perfidious betrayal of the people of Kashmir by Jawaharlal Nehru from 1947-1964 was repeated with greater force and deceit by the RSS Government of India headed by Narendra Modi on 5 August 2019.
`His party, the BJP, a wing of the RSS, had pledged to “abrogate” Article 370 of the Constitution of India which was crafted to guarantee the autonomy of the State of Jammu & Kashmir. He has gone further, still. By abrogation was meant removing the special safeguards for autonomy of the only state which had a Muslim majority. India has done far worse. It has destroyed the State altogether and reduced it in law to what it was in fact, a colony of India. It has been made a Union Territory to be ruled directly from New Delhi through a Lieutenant Governor.
The Hindutva regime in New Delhi takes satisfaction at its murder of Kashmir’s identity as a Muslim State in partnership with Jammu’s Hindu majority districts, in a democratic, secular compact. Jammu profited by the special status of Jammu and Kashmir’s autonomy as much as Kashmir did. Buddhist Ladakh has now been ripped off from both and made a separate Union Territory while Kashmir and Jammu are joined as Union Territories. The aim, of course, is eventually to split Jammu Province from Kashmir Province. In that event the Muslim majority districts of the Jammu Province will also demand separation to join Kashmir. No prizes are given for grasping the impact of such a scheme on Kashmir’s people. Only sheer religious hate can explain this venomous scheme which the Modi government has launched. It is the brainchild of Modi’s principal advisor Ajit Doval, the National Security Advisor, who went twice to Kashmir to oversee its enforcement.
The scheme must be viewed from three aspects – international, constitutional and political. Internationally, the most conspicuous result is the burial of the Simla Pact of 1972 which had long been gasping for breath. With its death dies its commitment to an exclusive bilateralism; never credible any way.
Para 1(ii) contains these interconnected promises: “That the two sides are resolved to settle their differences by peaceful means through bilateral negotiations or by any other means mutually agreed between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations”.
The commitment to negotiate in earnest finds a specific elaboration in the last provision, Para 6. It binds “their respective Heads” of Government to “meet again”. One of the problems pending which is specifically cited is “a final settlement of Jammu and Kashmir”. It clearly implies two principles. First, J&K is a pending issue between them and not India’s internal matter. Secondly, it is a live dispute which yet awaits a “final settlement”.
From July to December 1972, both President Zulfikar Ali Bhutto and Aziz Ahmed, the President’s principal aide and Minister of State for Foreign Affairs, publicly and repeatedly pleaded with Prime Minister Indira Gandhi to pay a return visit to Pakistan and resume the negotiations as envisaged by Para 6. She refused. Militancy broke out in Kashmir in 1988.
Kashmir is not India’s internal matter and the barbaric measures which India undertook on 5 August 2019 are legitimately a matter of international concern. Pakistan being concerned the most as a party to the Kashmir dispute since 1947.
If Modi and Doval imagined that the world would shut its eyes, they were swiftly proved wrong. China involved the “relevant” UN resolutions. The United States and Europe voiced their protests. This follows a long record.
“It is an international problem. It would be an international problem anyhow if it concerned any other nation besides India and it does. It became further an international problem because a large number of other countries also took interest and gave advice… We do not want to win people against their will and with the help of armed force, and if the people of Jammu and Kashmir State so wish it, to part company from us, they can go their way and we shall go our way. We want no forced marriages, no forced unions like this. …the strongest bonds that bind will not be the bonds of your armies or even of your Constitution to which so much reference has been made, but bonds which are stronger than the Constitution and laws and armies – bonds that bind through love and affection” – Prime Minister Jawaharlal Nehru in Parliament on 7 August 1952.
On February 25, 1955, Nehru was asked in the Lok Sabha: “In view of the fact that the Kashmir Constituent Assembly has ratified the accession of the State to India, what will be the terms of discussion on Kashmir with the Pakistani Prime Minister?” Nehru replied: “A question like this cannot be solved unilaterally.”
On July 8, 1949 Nehru said that “Kashmir is a world question”. He was all for mediation. Nehru said, on November 12, 1949, at a Press Conference in London, “India continues to suggest that there should be mediation and that this mediation should be under the auspices of the United Nations [U.N.] partly because we want to increase the prestige of the United Nations.”
The United States’ President Donald Trump and French President Emmanuel Macron accepted that all the issues between India and Pakistan are bilateral in nature. The existence of the issue is affirmation implicitly of the issue – Kashmir. Trump said on August 25 that Modi and he had discussed Kashmir “at great length”. Clearly no internal matter is this.
On October 25, 1947 immediately on the morrow of the tribal raid from Pakistan, Nehru cabled to Attlee: “I should like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with wishes of the people and we adhere to this view.”
On October 30, 1947, even after the ruler acceded to India on October 26, Nehru wrote to Pakistan’s Prime Minister Liaquat Ali Khan: “Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision about the future of the State to the people of the State is not merely a pledge to your Government but also to the people of Kashmir and to the world.”
India decided to move the U.N. Security Council on December 31, 1947. Pakistan filed a counter complaint at the Security Council. N. Gopalaswamy Ayyanger said on January 15, 1948 that Kashmir “could withdraw from her accession to India, and either accede to Pakistan or remain independent with a right to claim admission as a member of the U.N.” (227th meeting; U.N.S.C., 1948; p.32).
The talks with the U.N. Commission for India and Pakistan (UNCIP) and UN Mediators, Gen. A.G.L. McNaughten, Sir Owen Dixon, Dr. Frank Graham and Gunnar Jarring had gone through.
But Nehru’s real intentions are revealed in a document. One is his Note to Jammu and Kashmir Premier Sheikh Abdullah which he wrote from Sonamarg in Kashmir on 25 August 1952. He wanted the Sheikh to ditch the plebiscite and finalize the accession. He had, he disclosed, come to the firm conclusion against a plebiscite much earlier in 1948. He wanted an accord on the basis of the status quo.
“We are superior to Pakistan in military and industrial power. But that superiority is not so great as to produce results quickly either in war or by fear of war. Therefore, our national interest demands that we should adopt a peaceful policy towards Pakistan and, at the same time, add to our strength. Strength ultimately comes not from the defense forces, but the industrial and economic background behind them. As we grow in strength, and we are likely to do so, Pakistan will feel less and less inclined to threaten or harass us, and a time will come when, through sheer force of circumstances, it will be in a mood to accept a settlement which we consider fair, whether in Kashmir or elsewhere. Purely from the point of view of India’s national interest, we cannot agree, unless circumstances force us, to see this part of Kashmir State go to Pakistan. There are no circumstances visible that can force us to do this. Pakistan cannot, the UN cannot override our wishes in this matter. …
“It must be remembered that the people of the Kashmir Valley and roundabout, though highly gifted in many ways – in intelligence, in artisan-ship, etc. – are not what are called a virile people. They are soft and addicted to easy living….
“The result of all these considerations is that the only desirable future for the State is with a close association with India, retaining her autonomy in most ways; that Kashmir and Jammu should hold together; that we should consolidate our position in these areas and not care very much for what happens in ‘Azad Kashmir’ areas. … What is required is a firm and clear outlook, and no debate about basic issues. If we have that outlook, it just does not matter what the UN thinks or what Pakistan does.” … (Selected Works of Jawaharlal Nehru, Second Series, Vol. 23, pages 322-30). The people had no soul; no craving for azadi. His contempt for them was profound and unconcealed. Sheikh Abdullah was alarmed.
Since the Sheikh refused to betray his people, he was put behind bars for eleven years on Nehru’s written instructions to his Secretary M. O. Mathai on July 31, 1953. He denied this fact to his daughter, to the President and to Parliament.
A Security Council’s resolution, adopted with Soviet backing, barred unilateral declaration of closure. Read this Resolution of January 24, 1957: “Reminding the governments and authorities concerned of the principle embodied in its resolutions 47 (1948) of 21 April 1948, 51 (1948) of 3 June 1948, 80 (1950) of 14 March 1950 and 91 (1951) of 30 March 1951, and the United Nations Commission for India and Pakistan resolutions of 13 August 1948 and 5 January 1949, that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations,
“1. Reaffirms the affirmation in its resolution 91 (1951) and declares that the convening of a Constituent Assembly as recommended by the General Council of the “All Jammu and Kashmir National Conference” and any action that assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the Assembly, would not constitute a disposition of the State in accordance with the above principle” The UN’s map of South Asia. Legend still declares emphatically: “The final status of Jammu and Kashmir has not yet been agreed upon by the parties.”
Even after the 1965 war, Prime Minister Lal Bahadur Shastri testified: “Almost every country wants that we should somehow settle the question of Kashmir peacefully.” Acharya Vinoba Bhave’s formulation cannot be bettered: “The Kashmir question can be regarded as settled only when India, Pakistan, Kashmir and the world declare it as settled.” Such fundamentals have not changed and cannot change.
Bernie Saunders, U.S. Senator and Democratic presidential contender, says he is “deeply concerned” at the situation in Kashmir and asks Trump – to “speak out boldly” in support of a U.N.-backed settlement (The Hindu, September 2). The European Union’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, “reaffirmed the E.U.’s [European Union] support to a peaceful solution of the crisis in Kashmir through bilateral dialogue between India and Pakistan” (Indian Express, September 2).
China has revived its references to the United Nation’s resolutions that it had dropped two decades ago. Here is a sample of some critical references in the European Union [E.U.] Parliament’s debate on 18 September.
Finnish Minister for European Affairs Tytti Tuppurainen, on behalf of the Vice President: Significant number of troops in Kashmir; arrests and detention of political leaders, students and human rights defenders; encourage India and Pakistan to seek solution respectful of Kashmiri population; concerns over situation on ground specifically in relation to fundamental freedoms.
Train Basescu, Group of the European People’s Party (Christian Democrats) Romania: Situation is alarming and unacceptable; Constant trampling of human rights and two nuclear powers head to head in conflict is concerning.
Maria Arena, Group of the Progressive Alliance of Socialists and Democrats in the European Parliament, Belgium: Recalled Article 370; most militarized region in the world; U.N. reports confirm serious human rights violations; call for international inquiry; E.U. should weigh in heavily; U.N. must help to re-establish dialogue between two countries.
Gina Dowding, Group of the Greens/ European Free Alliance, U.K.: Raids, arrests and crackdowns in Kashmir are truly appalling; Human rights violations must immediately stop, not only in Kashmir but also against Kashmiris everywhere; restrictions on communication; demands India to restore basic freedom.
Richard Corbett, Group of the Progressive Alliance of Socialists and Democrats in the European Parliament, U.K.: India’s recent actions in Kashmir inflamed the already conflict situation and will cost India a fortune; this is a stain on India’s international reputation; only one long-lasting solution: self- determination; time to implement the U.N. resolution; E.U. should use tools like trade to press for that outcome.
Phil Bennion, Renew Europe Group, U.K.: Urge that curfew is lifted, Kashmir government is re-installed, political prisoners are released, access to U.N. observers and agree for independent mediation.
Klaus Buchner, Group of the Greens/ European Free Alliance, Germany: The only way to resolve is to implement the resolution; to prevent war and human rights violations; U.N. needs to step in and if need be send peace mission in agreement with both sides.
Anthea Mclntyre, European Conservatives and Reformists Group, U.K.: Violation of human rights in Kashmir; spoke about use of pellet guns against civilians and the person who died; there can never be any excuse of killing and blinding people; no rationale for India’s action; India aspires to be a permanent member of the Security Council and events in the last month are not the actions of a probable candidate.
Chris Davies, Renew Europe Group, U.K.: Kashmir is a disputed territory; human rights violations in Kashmir; because we are friends of India, we have to ask questions if it’s the right course of action and what are possible benefits; ask the Minister, words so far have been good but what are the possible actions?
Tytti Tuppurainen, on behalf of the Vice President: E.U. will continue to monitor the situation closely; India and Pakistan must make efforts for de-escalation of conflict.
The U.N’s Secretary-General, Antonio Guterres, voiced his concern repeatedly, as has United States President, Donald Trump, and its Assistant Secretary of State, Alice Wells. Pakistan’s PM, Imran Khan’s speech at the U.N. General Assembly on 27 September stirred Kashmiris (Asian Age; 29 September).
Within India, protests and disclosures of wrongs have mounted. Women’s organizations have been foremost in their protests. After a visit to Kashmir, one group reported “harassment by Army personnel” of women. (The Hindu; 25 September). Over 50 Indian scientists and scholars urged Modi to revoke the measures of 5 August, lift the curbs on communications and release the detained persons (The Telegraph; and The Hindu; 22 September). A report entitled “Kashmir Caged”, authored by the celebrated economist, Jean Dreze, Maimona Mollah, and Kavita Krishnan, Secretary of the All India Progressive Women’s Association, exposed the arrests and torture of minor boys. They visited Kashmir from 9-13 August and spoke to the media at the Press Club in New Delhi as Pheroze L. Vincent of The Telegraph reported. Kavita Krishnan gave a detailed expose to the media at Kolkata on 7 September. It was “a military dictatorship”. The laws of 5 August were to go into force on 31 October. The “laws” made on 5 August 2019 deserve universal condemnation.
They go far, far beyond Article 370’s abrogation. This provision represented an accord between Kashmir’s Premier Sheikh Abdullah and India’s leaders. It was negotiated for months – from May to October 1949.
Article 370 embodies six special provisions for Jammu and Kashmir. First, it exempted the State from the provisions of the Constitution providing for the governance of all the states. Jammu and Kashmir was to have its own Constitution.
Second, Parliament’s legislative power over the State was restricted to three subjects – defense, foreign affairs, and communications. The President could extend to the State other provisions of the Constitution so as to provide a federal constitutional framework if they related to the matters specified in the Instrument of Accession of 1947. For this, only “consultation” with the State government was required since the State had already accepted them by the Instrument. But, thirdly, if other constitutional provisions or other Union powers were to be extended to Kashmir, the prior “concurrence” of the State government was required.
The fourth feature is that the State Government’s concurrence was strictly provisional. It had to be ratified by the State’s Constituent Assembly. Article 370(2) says clearly: “If the concurrence of the Government of the State… be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.”
The fifth feature is that the State Government’s authority to give the ‘concurrence’ lasts only till the State’s Constituent Assembly is “convened”. It is an interim power. Once the Constituent Assembly met, the State government could not give its own concurrence; still less, after the Assembly dispersed. Moreover, the President cannot exercise his power to extend the Indian Constitution to Jammu and Kashmir indefinitely. The power has to stop at the point the State’s Constituent Assembly drafted its Constitution and decided finally what additional subjects to confer on the Union, and what other provisions of the Constitution of India should get extended to the State, rather than having their counterparts embodied in the State Constitution itself. Once the State’s Constituent Assembly had finalized the scheme and dispersed, the President’s extending powers ended completely.
The sixth special feature, the last step in the process, is that Article 370(3) empowers the President to make an order abrogating or amending it. But for this also the recommendation of the State’s Constituent Assembly was necessary before the President issued such a notification.
Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution of India which apply to all the other states; namely, Article 368. For, in relation to Jammu and Kashmir, Article 368 has a proviso which says that no constitutional amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under Article 370. That also requires the concurrence of the State’s government and ratification by its Constituent Assembly.
Jammu and Kashmir is mentioned among the States of the Union in the First Schedule as Article 1(2) requires. But Article 370(1)(c) says: ‘The provisions of Article 1 and of this Article shall apply in relation to the State.” Article 1 is thus applied to the State through Article 370. Delete Article 370 and the Union also goes.
Nehru’s Minister, N.G. Ayyangar’s, exposition of Article 370 in the Constituent Assembly of India on 17 October 1949 is authoritative. “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… You will remember that several of these clauses provide for the concurrence of the Government of Jammu and Kashmir State. Now, these relate particularly to matters which are not mentioned in the Instrument of Accession, and it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its Constitution.”
In plain words, Article 370 cannot be invoked after the State’s Constituent Assembly had taken its decision on the Constitution and on the range of federal jurisdiction over the State.
In 1949, no one knew when Kashmir’s Constituent Assembly would be elected. Arrangar therefore said: “The idea is that even before the Constituent Assembly meets, it may be necessary … that, certain items which are not included in the Instrument of Accession would be appropriately added to that list in the instrument … and as this may happen before the Constituent Assembly meets the only authority from whom we can get consent for the addition is the Government of State”.
This was explicitly only for that interim period. Once Kashmir’s Constituent Assembly was convened on 31 October 1951, the State Government lost all authority to accord any concurrence to the Union. With the Assembly’s dispersal on 17 November 1956, after adopting the Constitution of Jammu and Kashmir, vanished the only authority which alone could cede: (i) more powers to the Union and (ii) accept Union institutions other than those specified in the Instrument of Accession. All additions to Union powers since then are unconstitutional. This understanding informed decisions right until 1957. It was abandoned thereafter by Nehru.
On 5 August 2019 three documents, each illegal, were made “law”. One was an amendment to Article 370 by the President’s Order. Another was an Act of Parliament, the Jammu and Kashmir Reorganisation Act, 2019. The third was a statutory Resolutions of Parliament.
The President’s Order is patently unconstitutional. It is made avowedly “with the concurrence of the Government of the State of Jammu and Kashmir”. But no such Government has existed there for over a year, evidently to facilitate this constitutional skulduggery through a stooge, the Governor Satya Pal Malik; the very worst ever.
Article 370 itself defines the “Government of the State” in an Explanation which reads thus: “Explanation. – For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being inoffice under the Maharaja’s Proclamation dated the fifth day of march, 1938.” The Maharaja gave way to the Sadar-e-Riyasat and he to the Governor. Thus, the Governor cannot act under Article 370 singly as “the Government of the State”.
The Modi regime has also scrapped the Constitution of J&K, Article 370 itself does not permit that. It begins by saying that Article 235 will not apply to Kashmir. Article 235 provided till its repeal in Constitution for a uniform for all princely States (Part B of the Constitution). Article 370 limits the President’s power to apply to the State mainly items in the Union and Concurrent Lists; after consultation with the State if they are already comprised in the Instrument of Accession, namely those comprised in defense, foreign affairs and communications. But if they go beyond those the concurrence of the State’s Constituent Assembly is necessary. However, until it was “convened” the Government of the State could give concurrence, but subject always, always to its ratification by the Constituent Assembly [(Article 370 (2)].
Clause (3) to Article 370 is relevant. It says “Notwithstanding anything in the forgoing 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:
“Provided that the recommendation of the Concurrent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”
Article 368 on Parliament’s power to amend India’s Constitution does not apply to J&K unless the annulment is applied to the State by the President under Article 370.
It is a matter of common sense that Article 370 cannot be used, till eternity. It had to end once the Jammu and Kashmir’s Constituent Assembly took its final decision. It was “temporary” only in this sense.
A Union Home Minister, a Prime Minister and a President, referred pointedly to Article 1 of India’s Constitution whereby establishing a “Union of States” applies to J&K only by virtue of Article 370(1)(C). On 1 March 1993 S.B. Chavan pointed out that Art. 370 is “the only link” India has with Kashmir (The Statesman; 2 March 1993). P.V. Narasimha Rao said on 12 June 1996 “Abrogation of this Article is just not possible, unless you want to part with the State”.
Legislative skulduggery emerges very clearly in Clause 2(d) of the Order of 2019. It amends Art. 370(3) to say that the expression “Constituent Assembly of the State” referred to in clause (3) of Art. 370 “shall read ‘Legislative Assembly of the State’.” This is absurd.
A Constituent Assembly is a body wielding plenary constitutional powers as a sovereign body. It itself establishes a legislative assembly with limited powers it defines. Jammu and Kashmir’s Constituent Assembly ceased to exist on 26 January 1957. The Assembly it created in Jammu and Kashmir’s Constitution wields legislative power. It survives still (Article 46). How can you endow it with constituent power to accord its concurrence to the Centre to destroy the State’s autonomy?
Thus, the entire scheme is afflicted with defects and is a nullity. So, in consequence is the entire act which is based on it. The State of Jammu & Kashmir had an identity, a persona, since 1946; domestically and internationally. It has been reduced to a virtual colony by the Order and the Act. Article 370 permitted the Centre to extend legislative powers and constitutional provisions to Kashmir. It does not empower it, even in its hollowed form, to amend the State’s Constitution at all. The Act does just that. It has no power (Section 4) to make J&K a Union Territory. The State’s Constitution is not formally repealed; a new one is imposed by the Act. It has detailed provisions. Uniquely among the princely State, one of the biggest among them will have a Constitution in whose drafting it had no say. Amendments to the State’s Constitution are made freely, explicitly, by some babu in the Central secretariat.
Clause 134(1) says “there shall be an Administrator appointed under Art. 239 of the Constitution of India in the territory of Jammu and Kashmir and shall be designated as Lieutenant Governor of the said Union Territory”. What followed is a detailed Constitution for the State of Jammu and Kashmir.
The Centre can appoint one as Lt. Governor. The legislative Assembly will have no powers in respect of “public order” and the “police”. Parliament will have unlimited powers on J&K and so will the Central Government – unchecked by the State List.
Kashmir’s Legislative Assembly is wiped out. So, is its Legislative Council. Financial Bills cannot be moved in the Assembly without the prior approval of Lt. Governor (Section 36). It will have less power than the provinces of British India under the Government of India Act, 1935.
Part V (Section 59 to 64) deals with delimitation of constituencies. This Act of 103 Sections containing a host of minutiae could not have been drafted in the short period in which the Centre and the Governor were powering out one assurance after another. The build-up of armed forces, the ban on all forms of communication and on movement of people suggest that the Centre feared a popular revolt on its repressive laws. If not immediately, at some time or the other, revolt they will.
There are two so-called “statutory resolutions”. One reads thus, “In exercise of the powers conferred by Clause (3) of article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased to declare that, as from 5th of August, 2019, all clauses of the said article 370 shall cease to be operative except clause (1) thereof which shall read as under, namely: “All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 366 or otherwise.” Kashmir’s Administrative Services are abolished. The IAS alone will govern.
Illegality in the other Resolution is scandalous. “That the President of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this House under the proviso to article 3 of the Constitution of India for its views as this House is vested with the powers of the State legislature of Jammu and Kashmir, as per proclamation of the President of India dated 19th December 2018. This House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill, 2019.”
One illegality is mounted on another. Article 3 of India’s Constitution on the formation of new States and alteration of State’s boundaries applied to J&K with this revealing additional provision:
“Provided further that no Bill for increasing or diminishing the area of the State of Jammu & Kashmir or altering the name or boundary of the State shall be introduced in Parliament without the consent of the Legislature of the State”.
This was in addition to a safeguard promise to all the other States namely, the President had to refer the Bill to the affected State’s Legislature and the Bill could be introduced in Parliament only after the President’s recommendation. In regard to J&K, its “consent” was necessary; for all others “consultation” was all that was required.
What the Second Resolution does is to discard the requirement of consent. “That the President of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this House under the proviso to article 3 of the Constitution of India for its views as this House is vested with the powers of the State legislature of Jammu and Kashmir, as per proclamation of the President of India dated 19th December 2018. This House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill, 2019.”
This is a solemn fraud – The provisos to Article 3 are designed to respect the federal principle. This Resolution turns it on its head. It holds that since Parliament is vested with the powers of Kashmir’s Legislature once it is under President’s rule, it can give its consent to the President as if it was the State Assembly. “This House [of Parliament] resolves to express the view to accept the J&K Reorganisation Bill”.
To sum up:
1- (a) The Order under Art. 370 is made with the concurrence of the Centre’s appointee, the Governor on the pretext that he is the State Government. After 1951 the State Government also lost its interim power to accord consent. It now belonged to the State’s Constituent Assembly;
(b) It makes the State Assembly the Constituent Assembly, which was dissolved in 1957, with retrospective effect. A dead body revived as if it had not died.
2- The Bill reduces the State of Jammu & Kashmir in to the status of a Union Territory. Forget “the basic structure” of the Constitution.
3- The Resolutions cap all this by substituting Parliament for the State Legislature and empowering Parliament to give consent to itself.
These three measures together inflict on the people of Kashmir a humiliation more degrading than the one inflicted on 8 August 1953 by the ouster of Sheikh Abdullah from the office of Premier of J&K. It deepens the divide between India and Kashmir and Kashmir and Jammu and Ladakh. As in the case of the crime of 1953 these measures have won popular jingoistic approval in India but are certain to arouse deep regrets later.
One cardinal factor which successive Governments of India since Nehru have deliberately ignored is the people of Kashmir. They were opposed to the State’s accession to India from the very beginning. The raiders from Pakistan forced Sheikh Saheb’s hands. To Nehru’s knowledge he proposed to a British Minister Patrick Gordon-Walker, accession to both countries. The minutes of the meeting of the Defence Committee of the Cabinet on 25 October 1947 before the accession tell the tale. Nehru the accessionist said: “The question was whether temporary accession would help the people in general to side with India or whether it would only act as an irritant?” Why? Because they were opposed to accession then as they are now, which is why on 26 October the hardliner Gopalaswamy Ayyangar, former Dewan of Jammu and Kashmir, opined “immediate accession might create further opposition.”
On 14 May 1948, Indira Gandhi wrote to her father from Srinagar: ‘They say that only Sheikh Saheb is confident of winning the plebiscite…’ (Sonia Gandhi [ed.] Two Alone, Two Together, Penguin, New Delhi, 2004, pp. 512-18). Five years later even Sheikh Abdullah had abandoned hope as President Rajendra Prasad reported to Prime Minister Nehru on 14 July 1953.
In a letter to Nehru on 1 May 1956, Jayaprakash Narayan reported: “95 per cent of Kashmir Muslims do not wish to be or remain with India”. Nehru had foreseen the danger that the Sangh Parivar posed. At a rally in Calcutta on New Year’s Day 1952, Nehru warned; “If tomorrow Sheikh Abdullah wanted Kashmir to join Pakistan, neither I nor all the forces of India would be able to stop it because if the leader decides, it will happen. So what the Jan Sangh and the Rashtriya Swayamsewak Sangh are doing is to play into the hands of Pakistan … just imagine what would have happened in Kashmir if the Jan Sangh or any other communal party had been at the helm of affairs. The people of Kashmir say that they are fed up with this communalism. Why should they live in a country where the Jan Sangh and the Rashtriya Swayamsewak Sangh are constantly beleaguering them? They will go elsewhere and they will not stay with us. (SWJN, Vol. 17: 77-78).”
The larger objective of the RSS-BJP is to alter the demographics in the Valley by flooding settlers and migrants from across the country and undermine Jammu and Kashmir’s identity as a Muslim-majority State. They feared this would script an unprecedented political revolt.
By the evening of August 4, the Army was taking over the roads leading to the Srinagar airport; there was word that satellite phone numbers were being distributed to police stations and at administrative blocks, and curfew passes were being hastily issued. An all-party meeting at Farooq Abdullah’s residence had culminated in the historic Gupkar Declaration earlier in the day. It had unanimously resolved that “modification, abrogation of Article 35A, 370, unconstitutional delimitation or trifurcation of the State would be an aggression against the people of Jammu Kashmir and Ladakh”. Before midnight, Mehbooba Mufti, Omar Abdullah and Sajad Lone had been placed under house arrest. The mobile phones and Internet connection were taken down and landline facilities, too, were suspended.
On August 5, the “sieze” of Srinagar was complete. The deserted streets had all the elements of a battlefield – barbed wires and convoys. There were snipers everywhere. At the crossing. On the pavement. Outside closed shops. The silent houses gave no hint of their occupants. Bewildered canines howled. A reporter had to walk four kilometers before he got a cab to reach the airport. The Indian state had ended Jammu and Kashmir’s special status, repressing its dissenting voices by marked coercion, indistinguishable from the ways of an occupying force.
On July 31, the Governor went so far as to declare publicly: “I assure you that there is no plan at any level to abrogate Article 35A this time; all that you are hearing are rumours being spread by some people with vested interests. All I can say is that there is no truth in their claims about abrogation of the special status.” (Greater Kashmir, August 1).
On July 20, Defence Minister Rajnath Singh ominously declared: “Kashmir samasya kal hal hone wala hai [The Kashmir issue will be resolved soon]. I am assuring this with full responsibility … we know how to find a solution” (Hindustan Times, July 21). Nistula Hebbar reported immediately thereafter that the Centre was banking on the 4,000 sarpanchs “elected” recently. Remember Ayub Khan’s plan for “Basic Democracy”? – One confirmed to the base. The centre want to remove the present political class “and put in place different actors on the political chessboard” (The Hindu, July 22). Constitutional skullduggery was aimed at political engineering.
Since no accord either with Pakistan or the Kashmiri was in sight, it clearly was a unilateral forced solution which Singh had in mind. Governor Satya Pal Malik was in the know. Even as thousands of troops were being moved in, he said on July 30: “Everything is fine and everything is normal” (The Hindu, July 31). This was a week before the fraud of August 5.
The events of 5 August must be viewed in the context of the recent past and as a warning for the future. Well before 5 August the Centre had set afoot plans to delimit and redefine the Constituencies for Assembly and Parliamentary elections. The aim was to increase the Jammu seats so that, with the help of a few corrupt men in Kashmir the BJP-RSS could form a government. A correspondent reported these plans in Frontline of 5 July 2019 – 31 seats from Jammu and Ladakh plus 9 bought in the Valley.
The Centre saw Kashmir’s politicians sink their differences. On 4 August they met on the lawns of Farooq Abdullah’s residence at Gupkar Road in Srinagar and issued this historic Gupkar Declaration. It reads:
“The representative of following political parties held an all parties meeting at the Gupkar Residence of Dr. Farooq Abdullah President JKNC to deliberate upon the prevailing political situation triggered by massive deployment of security forces, advisories issued, abandonment of Amarnath Yatra midway, and forced removal of tourists from the Valley.
“The meeting, presided over by Dr. Farooq Abdulla, was attended by, Ms. Mehbooba Mufti, President JKPDP (Jammu and Kashmir Peoples Democratic Party), Patron PDP Muzaffar Hussain Beg, Abdul Rehman Veeri general secretary, PDP, Sajad Ghani Lone Chairman JKPC Jammu and Kashmir People’s Conference), Imran Reza Ansari, Abdul Ghani Vakeel, Taj Mohiudin Vice President JKPCC (Jammu and Kashmir Pradesh Congress Committee), M. Y. Tarigami CPI(M) (Communist Pasrty of India (Marxist), Omar Abdullah, Vice President JKNC, and Members of Parliament, Justice Hassnain Masoodi, and Mohamad Akbar Lone, Provincial President, JKNC, Nasir Sogami, Shah Faesal, PUF (Peoples United Front), Ali Mohammad Sagar, JKNC, Muzaffar Shah ANC (Awami National Conference), Uzair Ronga (PUF), Suhail Bukhari (PDP).
It was unanimously resolved:
- That all the parties would be united in their resolve to protect and defend identity, autonomy and special status of the JK against all attacks and onslaughts whatsoever.
- That modification, abrogation of articles 35A, 370, unconstitutional delimitation or trifurcation of the state would be an aggression against the people of Jammu, Kashmir and Ladakh.
- That the parties participating in the meeting resolved to seek audience with the President and Prime Minister of India and the leaders of other political parties to apprise them of the current situation and make an appeal to them to safeguard the legitimate interests of the people of state with regard constitutional guarantees given to the state by the constitution of our country.
“They will also apprise them of the unwholesome consequences bound to follow the unconstitutional violation of these guarantees.
“The representatives of the political parties resolved to remain together and stand united in their struggle for safeguarding identity autonomy and special status of the state.”
These persons cannot be held prisoner for long. The test will come when they are released. Will they maintain this unity? Militancy has reared its head. But, as an objective observer, the veteran journalist Anand K. Sahay, reported: “There appears to be no Pakistani hand in this”. His detailed report after a long tour of the Valley is an eye-opener (Asian Age; 22 October, 2019).
The monthly Caravan has earned high repute for the thoroughness, courage and integrity of its writings. The October 2019 issue contains a report by Praveen Donthi, a staff writer, entitled “Modi’s War”. It is an earthquake of eight magnitude.
A National Conference leader told him “Militancy will grow, it will grow 100 per cent. Today’s kids, they embrace death. They embrace death. They throw stones at the armed forces and know they will get bullets in return.”
Over 80,000 troops have been pumped in. Thousands have been imprisoned including kids. Pakistan’s stock went up. “Many Kashmiris feel so threatened by the Indian government’s actions that they fear being silently wiped out, if Pakistan were to stop raising this issue at international fora. “It is god’s grace and Pakistan behind us, otherwise there would have been a Godhra massacre here,” the man said. “They think this is some mohalla of Gujarat. This is Kashmir. This is Kashmir.”
Speeches of Prime Minister Imran Khan and Foreign minister Shah Mahmood Qureshi are applauded. Modi & Co. have shot themselves in the foot. The aftermath will be terrifying. The cultivated deadlock with Pakistan is part of this strategy since 2014. It’s a ruse to forcibly “close the Kashmir chapter”. The results promise the opposite. The Kashmir dispute is revived, domestically and internationally.
