By Gyan Pathak
Once there was a state in the Union of India named Jammu & Kashmir. It remained so after its accession in 1947 until August 5, 2019 when the state was abolished after a presidential order revoking Article 370 of the constitution of India, reducing it to mere a territory held by the Union, and a significant area carved out to make another territory named Ladakh. It was done by applying brute force in the state silencing the voice of its citizens and by the majority in the parliament without discussion on the matter. Opinions are divided. Some say the action and the manner in which it was done was immoral, unethical, unwise, and unjustified while majority of non-Kashmiri Indians hailed the action bold and historic. Kashmiris termed the fateful event as ‘black day’. We, both Kashmiri and non-Kashmiri Indians, will have to face the consequences whatever may come.
As an immediate consequence, the action is being discussed world over in terms of India vs J&K and the issue of Pak sponsored terrorism in the state have been already pushed into the background. It means we are back to 1947 when J&K as an independent state signed an agreement with India for its accession to India. It is certainly a backlash of the unilateral action of BJP led government which did not take forward but 72 years backward. In arrogance of power and brute force, the BJP leaders did unwittingly pushed the country in such a situation in which India and J&K is not one country but reduced to two parties in a dispute, in which one is seen crushed by the other by a brute force, nevertheless India has told the international community that it is an ‘internal matter’.
In civil matters, even a state becomes a party as an individual do. When there is an agreement between the two parties, the principle of justice demands that both the parties must adhere to the agreement not only in letter but also in the spirit of the letter. If certain disagreement crops up in due course of time, it must be settled by both the parties by a mutual agreement. It is against the principle of justice that the stronger party violates the agreement by a brute force. Any number of people supporting the stronger cannot justify the application of brute force against the weaker enforcing them to submit or be silent. In the present instance, India is seen as stronger, and J&K is seen as weaker.
Modi Government is not seen to be justified on several counts. The first on account of violating the spirit of the Article 370, the Section 3 which gives a power to the President of India to revoke this article provided that there is a recommendation of the Constituent Assembly of the state. Such recommendation was necessary before the President issues such notification. The government first amended the section by replacing ‘Constituent Assembly’ to ‘Legislative Assembly’ by a presidential order and then procured recommendation from the Governor of the state, which was considered sufficient to revoke the special provisions of Articles 370 and 35 A.
The critics of the government’s action argue that the recommendation of the governor does not reflect the wish of even a single Kashmiri, since he himself is not Kashmiri. It does not reflect the wish of the Legislative Assembly of the state, because there is no assembly at present. It is not even the wish of the government of the state, because the state is under presidential/governor’s rule. It was simply a wish of an agent of the Union of India, appointed as governor in the state. By extended logic the Union of India considered the recommendation of the governor equivalent to the recommendation of the Legislative Assembly.
The expression ‘Constituent Assembly’ was replaced by ‘Legislative Assembly’ because the Constituent Assembly ceased to exist long back in 1957 leaving the Articles 370 and 35 A as it is without any recommendation. Critics say that the government neither followed the letters of the Constitution of India nor its spirit. They first did away with the state government, made the state without assembly, put it under president’s rule, large number of forces sent to the state, pilgrims and outsiders evacuated, state was converted into garrison, political leaders were arrested, people put either under prohibitory order of 144 or curfew imposed, internet and phone snapped, the area totally disconnected from the world, and under such a shadow of fear, the action was taken.
It has been noted by several critics that it was not a merger of J&K with India but it was an accession with certain conditions laid down in the instrument of accession signed by both the parties. India was not given the power to do whatever it would like to do with the state in future. The fundamental basis was that J&K would remain a state. India has not only abolished the state, but broken it into two parts, made them mere territories of India. It has created new concerns among other states of the country. It has given the signal that they are states on the mercy of the ruling party at the centre, and if they will not fall in line, their fate as a state may be sealed as mere territory of the Union of India, notwithstanding any provision in the Constitution of India. Abolition of statehood, breaking it into pieces, and reducing it to mere a territory, are also not according to the spirit of the agreement between J&K and India.
As for abolition of the privileges given to Indian citizens of J&K, critics point out that many similar privileges are also given to Indian citizens of several states and regions. This unilateral act of the government has generated a fear among all those citizens of the country enjoying certain privileges including autonomy, culture and property related civil rights. The present action has signalled that all their privileges exist at the mercy of the ruling party at the centre, notwithstanding any provision in the Constitution of India. All the provisions of law can be interpreted to suit the purpose of the ruling establishment in Delhi, could be mischievously amended and implemented by brute force.
A more serious problem may appear in future in respect of Article 7 of the instrument of accession which says: “Nothing in this instrument shall be deemed to commit me [[now the state of J&K] in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”
There seems to be hard times ahead for both the Kashmiri and non-Kashmiri citizens of India, which would be the direct offshoot of the action taken by the BJP-led Central Government. Several other new concerns would continue to haunt the non-Kashmiri citizens enjoying privileges, apart from worsening of the law and order situation in the country, and impending external interference and troubles. The historic action may create some historic problems too. (IPA Service)