Article 370 repeal in line with history

Times were different when Kashmir was given special status and Article 370 was enacted. Over 70 years have passed since then and the ground realities have vastly changed. When the state of Jammu and Kashmir is considered an integral part of India, why should it be treated differently from other states of the Union. Why cannot people from other parts of India purchase land or build houses in Kashmir? Why can’t they set up industry in J&K? If industries come up in Kashmir and investment is made, employment will be generated and youth will work instead of taking to gun.

Grant of the Union territory status has been a long-pending demand of the people of Ladakh and, naturally, they are happy.

Also, there is no way of resolving what has come to be known as Kashmir dispute. Talks with Pakistan may go on indefinitely but there is no chance of finding a solution to this problem because there is no meeting ground between the leaderships of India and Pakistan. The BJP government has, therefore, decided to erase the root cause and change the status of J&K. It has created two Union Territories—Jammu and Kashmir, and Ladakh. The UT of J&K will be on the pattern of Delhi while Ladakh will have no assembly but a Council. Prime Minister Narendra Modi has said in a broadcast to the nation that full statehood will soon be restored to J&K.

According to Constitutional provisions to abate Article 370, consultation with the J&K assembly is deemed necessary before a Constitutional order to this effect is passed. The government, however, has chosen to use the fact that there is no J&K government at the moment and substituted the latter with the state Governor. While this approach may or may not be legally valid, it certainly bypasses wider discussion on the matter that would have been democratically sound. Second, the logic behind converting the state into two union territories is also not plain. True, there has been a demand for UT status in Ladakh for some time. But with the cessation of Article 370, the special power accruing to the J&K Assembly in Srinagar would be extinguished .Thus it is debatable if bifurcation of the state and creation of the UT of Ladakh was necessary after that.

In fact, this would be first time in India’s history that a state was being converted into union territories—the trend has been the other way round. Hence given the magnitude of the decision, more all round discussion would have been prudent. But, perhaps, the government’s decision to push ahead with its Article 370 move was linked to external factors. With the US looking to wind down its military engagement in Afghanistan and turning to Pakistan to facilitate a peace deal with Afghan Taliban, Islamabad has been upping the ante on Kashmir.

New Delhi, perhaps, felt that Islamabad was gaining too much leverage in the emerging regional scenario and had to do something to counter this. Whatever the compulsions, now that Article 370 has been abrogated, New Delhi will have to, sooner than later, grant full statehood rights to J&K and perhaps Ladakh too, for the sake of democratic governance as well as the federal principles in which India is grounded.

Government’s decision to abate Article 370 of the Constitution and supersede Article 35A, thereby, effectively ceasing the special status for J&K has been described as momentous. Simultaneously, government introduced the Jammu and Kashmir Reorganization Bill to bifurcate the state and create two separate union territories — J&K with legislature, and Ladakh without legislature. This means the Constitution of India will now apply to full force across J&K and Ladakh and J&K legislature will henceforth will not have any discretionary power to decide who permanent residents of the territory are or provide them with special rights with respect to employment and acquisition of property.

Abrogating Article 370 has been a long-held wish of BJP which sees the provision as a historical wrong. However, the complicated history of Kashmir and the sensitivity surrounding the matter has hitherto prevented such a move. But with the current BJP government projecting muscular nationalism and enjoying significant numerical strength in Parliament, cessation of Article 370 became more doable.

Arguably, Article 370 had contributed to the problems in Kashmir. The state’s special power of autonomy meant in practice arrogation of powers by a tiny Valley elite, which led to a feeling of not being represented among the people of Jammu and Ladakh, as well as disaffection feeding into separatist sentiment in the valley itself. And given that Kashmir came to be a trouble state with separatist sentiments being stoked by Pakistan with the help of cross border terrorism, this may have been the worst of both worlds. Besides, Article 370 was meant to be a temporary provision. In that sense its cessation now is congruent with historical perspective.

Now that the die has been cast, how the government proposes to carry this forwarded from here, how it will deal with the legal and political fallout and the reactions in the valley will decide many things for Delhi. If the un-kept promise of autonomy in Article 370 was the genesis of Kashmir problem, the government has significantly departed from that: not just by its definitive move to scrap the constitutional guarantee of that autonomy but by demoting the state into truncated union territories that will now be governed directly by the Union Home Ministry through an all powerful Lt. Governor, working with emasculated legislature.

The writer is a freelance journalist. Views are personal.

- Harihar Swarup

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