Ranbir Singh Pathania
Supreme Court has, ultimately, fixed a date for hearing all pending cases regarding annulment of Art 370 from the Indian Constitution. Earlier J&K used to have a separate flag, separate constitution, separate laws. Laws passed by Centre could find their way into J & K only when the State Assembly ratified or adopted them.
The apple-cart has been upset now. J & K is now a Union Territory. It is governed on Puduchery-model with the passage of J&K Reorganization Act 2019 by both the houses of Parliament by a majority vote. The Act paved way for entry of 106 central laws in J & K. It repealed 153 state laws. Ek Bharat Shreshath Bharat.
‘Sebastian’ mortals have been trumpeting and spinning stories of all sorts. And selling the pink-story that power to remove article 370 lied with the Constituent Assembly of J&K. A totally otiose construction of law, legal jurisprudence. Anyhow, let us recall.
Article 370 was pushed through the constituent assembly of India by Pt. Jawahar Lal Nehru at the instance of Sheikh Mohd Abdullah. B. R. Ambedkar the chairman of the drafting committee of the Indian constitution, Sardar Patel the Home Minister of India, Maulvi Hasrat Mohani, a fire brand from Uttar Pradesh and a number of parliamentarians rose in rebellion. A massive ferment was seen in a Congress high-level meeting at Delhi. Somehow, the boil-over was tamed. The law was passed with the title, “Temporary provisions with respect to the State of Jammu and Kashmir”.
Article 35-A was pushed through the backdoor in the Indian Constitution by a presidential order. It never saw the face of the Parliament. Result was most inhuman injustice to women, Valmikis, Refugees for seven decades. Those who rejected the fissiparous two nation theory came over to J&K from PoJK and parts of Pakistan remained bereft of right to vote, right to seek education and Government jobs in J&K. Farooq’s daughter Sara Abdullah and Mehbooba’s sister Rubaiya Sayeed became aliens in J&K only because they married Indians but non-residents of J & K.
Nevertheless, broadly speaking, there was an intra and inter party coherence regarding revocation of Article 370. Nehru himself said in Constituent Assembly “this provision is temporary”. He spoke in Parliament on December 27, 1963, “Article 370 has been “eroded and Kashmir stands fully integrated”. Nehru’s colleague and the then Home Minister Gulzarilal Nanda went a step further and told Parliament, “Article 370 is nothing more than a shell emptied of its contents. Nothing has been left in it; we can do it in one day, in 10 days, 10 months. Morarji Desai wanted it to go. Narasimha Rao said ‘Ghisti Ghisti khud hi chali jayegi’. Jayalalitha, Biju Patnaik and a score of regional satraps vented their sentiments, more than once, against the law.
Journey of J & K getting cozier to India started after promulgation of Article 370 & 35-A itself. Sheikh Abdullah was put behind the bars in 1953. Supreme Court, Election Commission of India, Comptroller General of India, Planning Commission and almost each and every central agency and institution found their foothold in J&K. An in-depth study of the Central laws in J & K revealed, on 5th August, 2019, 94 out of 97 entries in the Union List apply in toto in J&K. Out of 48 entries in concurrent list 26 applies in toto and 6 apply with minor modifications. Same was with 260 of the 395 Articles of the Indian Constitution which applied here.
One need to take note of Jag Mohan in his Book, Frozen Turbulence in Kashmir, “Article 370 is nothing but a feeding ground for parasites at the heart of paradise. It skins the poor. It deceives them with its mirage. It lines the pockets of ‘power elites’. It fans the ego of new sultans. In essence it creates a land without justice, land full of crudities and contradictions. It props up politics of deception, duplicity and demagogy. It breeds microbes of subversion. It keeps alive unwholesome legacy of two-nation theory. It suffocates the very idea of India. It could be epicenter of an earthquake in Valley – an earthquake, the tremors of which, would be felt all over the country”.
‘Clock cannot be put back’ was the well-considered, unimpeached and hitherto questioned opinion of a committee, headed by leading legal luminary, Justice Devi Dass Thakur formed to study the application of Central Laws in the State of J&K. The Committee was framed in the backdrop of Indira-Shiekh accord of 1975. Most amusingly the NC patriarch Lt. Shiekh Mohammad Abdullah was the Chief Minister and Mufti Mohammad was the Congress Chief at that time and congress-NC coalition was in power.
Dr. Karan Singh, son of Maharaja Hari Singh, resigned as Chairman of the autonomy committee report citing serious constitutional as well as ethical issues.
Legal wrangles apart, Article 370 has been a potent weapon in the hands of vested interests to block welfare and public friendly legislations from coming into force in J & K. The less-empowered Panchayats without the sting and sweep of 73rd Amendment, absence of Nyaya Panchayat mechanism were a living example thereof. Students of J & K had nil access to ‘Right to Education’. Poor and downtrodden could not take benefit of ‘Right to Food’ in J & K. A lesser effective Right to Information Act, less efficacious anti-corruption and anti-terror laws, so on and so forth. All these had their legacy and roots in Article 370. Whatever suited the powers-that-be was all-welcome in J & K. And whatever suited the common man was opposed tooth and nail in J & K.
Today, J & K has breathed free. A host of public-friendly legislations have come into the state – may it be in field of ‘consumer Protection’ ‘Gram Nyayalyas’, ‘Dowry Prohibition’, Free & compulsory education, better and fair land compensation, protecting whistleblowers, protecting wildlife and forests. And controversial and less effective laws – Resettlement Act, Transfer of Property Act, Sale of Goods Act, etc. – have virtually bid good bye to the State. The people of J & K can now bask and breed under the new legal framework, which seemingly has been very carefully crafted by the powers-that-be at the National Capital.
STs have got political reservation with almost eleven seats to be reserved for them. They have come under a legal umbrella with rights to dwell in forests. Corrupt and deadwood could now be dealt with more appropriately.
Post 5th August, 2019, J&K has seen delimitation process based on scientific standards and norms of propriety. A record development and investment has been seen in J&K.
A 70-per cent drop in terror activities has been witnessed.
Number of separatist-sponsored calls for strikes nose-dived to thirty-two. No stone-peltings, hartal-calendars, crackdowns. Tourist footfall in 2022 touched an all-time-high, 1.88 crore. 28,000 youngsters have been given Government jobs in a transparent manner while 51,000 have been provided with self-employment opportunities and 70,000 others linked to the “Mission Youth.
An industrial package of Rs 28,400 crore has been given to Jammu and Kashmir. Investment and industrial promotion have been in a top gear, especially, after introduction of industrial policy, industrial land allotment policy, the private industrial estate development policy, food processing, handicraft and handloom policy, new film policy, tourism home stay and sports policy.
Politics apart, let us not mislead people. Let us be able to call spade a spade. Hoaxes and hallucinations would no more work now.
J&K stands at a momentous and defining moment. It is all set to take a new flight. Let us all be part and parcel of the same.
(The columnist practices law at the
J&K, High Court of Judicature)
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