The repeal of Article 370 would harm the children of Kashmir

Given the disaffection levels in the state, political posturing on ‘special rights’ could drive the Valley to a point of no return

It will come as a surprise to many that most of the vast tracts of Indian territory affected by insurgency, not just Kashmir, are beneficiaries of special constitutional and legislative provisions. These include Fifth Schedule areas that touch 10 states in central India, Sixth Schedule areas within Assam, Meghalaya, Tripura and Mizoram, and Nagaland as a whole, which comes under Article 371A. While proximate causes may vary, the insurgencies are either related to the breakdown of trust, as in the case of Kashmir or central India, or accession having been achieved through the use of force, as in Nagaland. The breakdown of trust has been accompanied by dilution of the special provisions or by their non-implementation. The insurgencies have led to the imposition of the Armed Forces (Special Powers) Act (AFSPA), or some variation thereof, which curbs civil liberties and further dilutes the special provisions.

The unique aspect of the Kashmir case is that the dilution of the special provisions predates the insurgency by over 40 years. In its original form, Article 370 mirrored the terms agreed upon in the Instrument of Accession of Jammu and Kashmir, and was intended to give primacy to the state constituent assembly of Jammu and Kashmir on all matters other than defence, foreign affairs and communications. There was a provision for the President of India to effect changes in state laws, but only with the concurrence of the elected government, which, in turn, had to seek the assent of the state constituent assembly.

After the imprisonment of Sheikh Abdullah in 1953, a pliant Prime Minister (as the head of the state government was called till 1965) Bakshi Ghulam Mohammad was appointed. The state constituent assembly was formally dissolved in 1957. However, through the assent of the elected government, a number of provisions applicable to other princely states were inveigled into the Jammu and Kashmir system of governance. From 1954 to 1994, 94 of the 97 entries of the Union list and 260 of the 395 articles of the Indian Constitution were extended to the state. On 27 November 1963, Jawaharlal Nehru declared in Indian Parliament that “Article 370 has been eroded… there is no doubt that Kashmir has been integrated”. In 1964, Gulzari Lal Nanda, the home minister of India, said: “While normal process of constitutional amendment is very elaborate, the process of amendment made available to Article 370 is very simple—by a presidential order.” The transformation of Article 370 started under the watch of a “Prime Minister” of Kashmir whose “Bakshi Brothers Corporation” gave a new and decidedly corrupt meaning to the acronym BBC, and continued thereafter in a similar fashion.

Cut to 1980. General Zia-ul-Haq was fomenting Islamism in Pakistan, and the mujahideen were being enlisted by the US to quell the Soviet invasion of Afghanistan. After the fall of the Soviet Union, these jihadis took up the Kashmir cause. The agenda of back-door accession to the Indian Constitution (via corruption), and the rigging of the 1987 elections gave the extremists a foothold. The exodus of Kashmiri Pandit families spelt the death of Kashmiriyat.

Article 35A of the Indian Constitution is the only provision in the national Constitution relating to Kashmir other than Article 370. It accords special rights to domiciles of the state on ownership of land and reservation in government jobs. Proscriptions on the sale of local land to outsiders are an integral part of most special constitutional and legislative provisions applicable across multiple states in India. However, in most states, these have largely remained unimplemented. For instance, in the districts of Khammam, Warangal and Adilabad in erstwhile Andhra Pradesh, the percentage of land controlled by non-tribals was as high as 52.79%, 71.64% and 60.69%, respectively, as far back as 1996. Jammu and Kashmir is a clear exception to this trend.


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