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Volume 1, No. 8 - January 2002

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Living under the shadow of Article 370
Sunil Fotedar, Subodh Atal and Lalit Koul

There have been numerous suggestions that the Indian government needs to grant 'special powers' to the state of Jammu and Kashmir to defuse the ‘nuclear flashpoint’. What 'special powers' are left to be doled out to the state government? It already has sufficient autonomy under Article 370 to run roughshod over minority rights and keep them segregated from the rest of India five decades after Partition. The RSS has recently demanded abrogation of Article 370.

So what is this Article 370? A detailed analysis is necessary as a new debate heats up about the status of the state within the Indian nation.

In the Beginning: Article 370 Lays the Roots
Article 370 is  a special clause in Indian Constitution, a prize that was extracted out of India in 1950  by Sheikh Mohammed Abdullah for throwing his lot with India, after lengthy negotiations with Indian leaders. Article 370 made Jammu and Kashmir a country within a country, with its own flag, emblem, constitution and Sadr-i-Riyasat (Prime Minister). The architect of the Indian Constitution, Dr. Ambedkar, opposed granting Article 370 but it was on India's first Prime Minister Jawaharlal Nehru's insistence and personal guarantee that it was granted to the state.

This Article specified that except for Defence, Foreign Affairs and Communications, the Indian Parliament needed the State Government's concurrence for applying such laws to Jammu and Kashmir as did not fall under the heads of Defence, Foreign Affairs and Communications. Parliamentary laws pertaining to these three subjects required consultation with the J&K State Government. Over the years, this procedure was followed to bring the state under the purview of Article 356, the Supreme Court, the Election Commission, the Comptroller and Auditor General, thus providing some level of order in the state. However, much else was left to the whim of the state rulers.

Thus the state's residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. An interim arrangement, the Constituent Assembly, had been convened to run the state while considering the ratification of the Instrument of Accession and framing the constitution. That Article 370 was a temporary arrangement is evident from its wording, which allows its abrogation by the President of India in consultation with the now long-defunct Constituent Assembly. The Constituent Assembly was dissolved in 1957 prior to the first State Assembly elections and after it ratified the state's accession to India and framed the state's constitution adopted on 17th November and coming into full force from 26th January 1957.

The trouble began even before as Article 370 was promulgated, and the omens that were seen in 1951 presaged the damage half a century of Article 370 would do. The Kashmiri Muslim-dominated National Conference opposed the extension of India’s citizenship laws, fundamental rights and related legal rights to the state. They also began to question the finality of the accession of the state to India. Hindus in Jammu rose up in protest in a movement known as the Praja Parishad agitation. The Praja Parishad movement strongly opposed any moves towards independence of the state. Its slogan was 'Ek Vidhan, Ek Nishan, Ek Pradhan' (One Constitution, One flag, and One President).

The National Conference led by Sheikh Abdullah used the leeway granted to it by India to grab all the seats of the Constituent Assembly, squeezing out representatives of Jammu and Ladakh, and those of Kashmiri Hindus and Sikhs. The Praja Parishad candidates in Jammu found their election papers rejected before the election, and appealed to Indian leaders including Nehru to set up an enquiry into the election conduct and to prevent the state administration from openly aiding the National Conference candidates. The Indian leadership, perhaps mindful of the unstable situation in the state, sided with the National Conference. The already narrow base of the National Conference among minorities was further eroded due to the manner in which the elections were conducted to the Constituent Assembly. The conditions set the stage for the intensification of the Praja Parishad agitation and the open communalization of the state. In the end the misgivings of non-Muslims and residents of Jammu and Ladakh were ignored.

Thus Article 370 and other crucial constitutional issues were effectively negotiated ignoring the wishes of nearly half of the state's population which was non-Muslim, or from outside the valley. Article 370 was designed to maintain the separate character of valley Muslims at the expense of all other groups in the state, and at the expense of the stability and future of the subcontinent.

The Fruits of Article 370: Political and Socio-Economic Discrimination against Hindus
Religious oppression of Kashmiri Hindus (also known as Kashmiri Pandits and embodying a distinct character, culture and historic tradition), and forced conversions, had already dwindled the number of these original inhabitants of Kashmir valley to about 800,000 by 1947. After 1947, while the rest of India enjoyed the fruits of secular independence and religious equality, Kashmir valley was gradually and steadily converted into a hotbed of Islamic fundamentalism, a mini-Afghanistan. The Kashmiri Hindus, the largest minority in the valley and its original heirs, were clearly an impediment to this transformation of the valley. Every possible mean was employed by the outwardly secular National Conference to exclude Hindus from society, politics and the economy, and the primary tool used was Article 370.

With constitutional protections of India for minorities not applicable or constrained due to Article 370, Hindus were eliminated from the economic organization of the State, its government and administration, and relegated to a condition of abject servitude within a year after the exit of Maharajah Hari Singh. After 1957, when the Constituent Assembly gave way to the state legislative assembly, the National Conference government perpetually gerrymandered electoral districting to ensure a heavy weightage in favor of Kashmir versus Jammu and Ladakh. Within Kashmir, pockets of Hindu majority were combined with Muslim majority districts so that no Kashmiri Hindu was ever elected to the assembly.

The political hegemony quickly filtered down to the administrative level. The rapid process of summary removal of the Hindus from the State services was initiated on the pretext of communal imbalances in the services. The admissions of Kashmiri Hindus to various academic institutions, were restricted to a negligible 2-8 percent of the total admissions made every year. In effect, an unprecedented and unfair affirmative action program was instituted for the majority in the state. The total domination of Kashmiri Muslims extended to the media, with over 95% of the outlets controlled by them and used heavily for propagation of fundamentalism and secessionism. Again, due to the umbrella of Article 370, the Kashmiri Muslims could dominate all spheres of life in the state with impunity. The minorities had no recourse to many fundamental rights to equality and due process available in the rest of India. In fact in its latest demand of autonomy passed in a resolution by the state assembly in 2000, the state’s Muslim leaders have again asked for a different set of fundamental rights in what may be a renewed attempt to perpetuate discrimination and oppression of the state’s minorities.

The Fruits of Article 370: The State Subject Law
Taking full advantage of Article 370, the National Conference government, first led by Sheikh Abdullah, then by others, perpetuated the archaic, exclusionary and highly discriminatory rule known as the State Subject law. In 1890, the then Maharajah had instituted a law disallowing outsiders from owning land and property in the state. This law was further strengthened in 1927. The law made sense in those days, since it was meant to prevent the colonial British from establishing their presence in the state.

In 1947 and later, however, this rule has been used with surgical precision by the National Conference governments to gradually and decisively eradicate the Kashmiri Hindu population. Many of this community had already moved out in the decades and centuries before 1947, and now with full religious and political freedom and opportunities in the rest of India contrasting with severe oppression in the valley, many Kashmiri Hindus, especially young men, started moving out of the valley.

The State Subject law has a unique feature to it that acted as a double pincer in squeezing out a majority of the Pandit population. Women who marry men (including those who are Kashmiri Hindus) domiciled outside the state, automatically lose their right as a ‘State Subject’. Even if their children are born in the state, those children have no rights and are destined to live elsewhere in India.

As a result, generation after generation of Kashmiri Hindus started losing rights to their ancestral homeland. And no more than 400,000 of them were left in 1989 in the valley out of the over 800,000 at Partition, while the Kashmiri Muslim population grew steadily. Compounding the injustice was the denial of rights to the hundreds of thousands of Hindus who fled from areas in Pakistan soon during the 1947 Partition and settled in the state.

Not only the minorities of the state, but the entire state’s economic progress has been adversely affected by this uniquely retrogressive law. The same law that has dispossessed hundreds of thousands of Kashmiri Hindus of their ancestral homeland has also acted as a hindrance to the entry of industry and technological advancement into the state from the rest of India. It wasn’t the militancy alone, but the same State Subject law applicable under Article 370, that prevented the revival of the Indian economy to filter into the state. And without the influence of the rest of India, the fundamentalist malaise has grown unabated in parallel with the situation in Pakistan and Afghanistan.

The Fruits of Article 370: The `Kashmiriyat' Red Herring
With the help of some intellectuals within the community, Kashmiri Muslims invented the word `Kashmiriyat', which was ostensibly an attempt to preserve unique Kashmiri identity and focus on common culture of the Hindus and Muslims over centuries of co-existence, and mutual respect for each other's traditions and religious practices. In reality `Kashmiriyat' was coined successfully to fool the rest of the world, especially the media. The rest of India slumbered on for four centuries up to 1947, content in its belief that the state represented true religious coexistence. In the meanwhile, the communalists worked behind the curtain of Kashmiriyat to systematically eradicate minority rights and establish a Talibanic system long before Afghanistan was turned into a medieval wasteland by the group of that name. If Kashmiriyat had existed, it would certainly have prevented the National Conference from eroding the rights of Hindus in the state.

The unsuspecting media as well as so-called foreign ‘experts’ devour the term ‘Kashmiriyat’ today, as they did in the past, without asking questions. It has even been used as the basis for offering some untenable and dangerous solutions such as those offered by the Kashmir Study Group.

Is Abrogation of Article 370 Possible?
If Article 370 has created so much havoc, the question is how can it be removed. While some have tied the existence of Article 370 to the state’s accession to India, Kashmir experts like ex-Governor Jagmohan and state constitutional expert M. K. Teng have opined that the article can be abrogated without any constitutional hurdles. The article stipulated that India’s President needed to consult with the state’s Constituent Assembly before abrogating it. However, this by itself points to the Article’s temporary nature. As noted above, the Constituent Assembly was a temporary arrangement with its main task being the ratification of the Instrument of Accession. It was disbanded in 1957, thus invalidating this clause. The President can use Article 368 to remove the defunct provision of taking the Constituent Assembly’s consent. After this deletion is carried out, the President can then abrogate the Article forthwith.

The Politics of Article 370
If abrogation of Article 370 is a readily available solution, why hasn’t any Indian government taken the step to alleviate the oppression of Kashmiri minorities and help the state integrate with India? The answer is that it’s the politics, stupid. The Congress governments, heavily dependent on a solid block of Indian Muslim vote, never even considered the step that might have alienated any of them. The BJP, in its 1998 election plank, declared that abrogation of Article 370 would be one of its goals. However, using the excuse of coalition politics, it immediately abandoned this item from its agenda, thus betraying the Kashmiri Hindu refugees who had supported it en masse due to this promise.

Now the current state chief minister Farooq Abdullah is demanding even more autonomy, cloaking it in the guise of ‘honor’ for Kashmiris. One needs to ask Dr. Abdullah what more honor do they need, and indeed why do they need anything beyond the current level of autonomy which has been enough to deprive Hindus, Sikhs, Jammu Dogras and Ladakhis of their rights, as well as to create a mini-Pakistan within India? But in a repeat of history, and to its own detriment, the Indian government is again succumbing to such thinly disguised secessionist demands.

Beyond Article 370
Abrogation of Article 370 would be a first step in solving the Kashmir imbroglio, but by no means enough. The damage done is too deep and wide that this step would have little effect on the restoration of minority rights and the defeat of fundamentalist elements in the state. The control of Kashmiri Muslims over society, religion, politics, administration and the economy is so complete that returning valley minorities, and people from Jammu and Ladakh would find it impossible to gain back any lost ground.

In order to permanently and justly settle the issue of Kashmir, abrogation of Article 370 should be immediately followed by re-organization of the state into four distinct entities, Jammu, Ladakh, Panun Kashmir and Kashmir. Panun Kashmir, as noted in the Homeland Resolution of 1991, would comprise regions of the valley to the east and north of Jhelum River, and would allow the return of all 700,000 Kashmiri Pandits to their rightful homeland. The territory would also be converted into an economic zone attracting the best of Indian industrial talent, especially high technology. Kashmiri language, culture and traditions would be preserved within this territory, which would integrate with the rest of secular India at a much faster pace than the remaining portion of the valley. It would be the only effective means for India to regain the foothold it lost decades ago in the valley.

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