Demystifying the trepidation in J&K
Parliamentary debates on Fundamental Rights makes it amply clear that Article 370 only contributed to trepidation tendencies in the Indian Union
The NDA government, led by Bharatiya Janata Party (BJP), created history on 5th August 2019 by knocking down Article 370; ushering in a paradigm shift in the political landscape of the country. The presidential order removed the special status accorded to the state of Jammu and Kashmir (J&K) under Article 370 in Part XXI (Temporary, Transitional and Special Provisions) of the Constitution of India. Article 35A has also been repealed by extension as it stems from Article 370, having been introduced through a presidential order in 1954.
The dismantled Articles 370 and 35A defined that the J&K state’s residents live under a separate set of laws, including those related to fundamental rights, as compared to residents of other Indian states. This anomaly which was centered on the non-existent apprehensions, thus, stood in contrast to and as a discriminating feature against the rest of the citizens of the country. This controversial exception has had therefore been debated in the Parliament on numerous occasions. The architect behind this historical catharsis, Amit Shah, had said in 2017 that, ‘the only solution to the J&K problem is removal of Article 370. It will be one bitter dose, but it will solve multiple problems in one stroke’. In the same vein, the disparity in the sphere of fundamental rights has also been given the final death blow. In fact, the general feeling amongst majority of Indian citizens echoed similar spirits ever since its inception. The apprehensions regarding fundamental rights or citizenship in J&K were all baseless and stood no ground of logic. At the same time, it failed to grapple the seriousness of the issue and could not foresee the kind of discrimination it could unleash in the future.
A close perusal of the deliberations and discussions on fundamental rights in the Indian parliament establishes the fact that the voice for deletion of this discriminatory clause is not new. A lot of hue and cry over the last 70 years surrounded the unfortunate situation where fundamental rights took a back seat in J&K. Article 370 and the disparity it created had, indeed, been seen as the cornerstone of almost all the looming confusion that surrounded J&K.
Dr. Shyama Prasad Mookerjee, in the Lok Sabha on 26th June 1952, questioned the applied variation between the state of Jammu and Kashmir and other states with the Centre in terms of fundamental rights. He was critical of the disparity and argued: ‘In a democratic federal state, the fundamental rights of the citizens of one constituent unit cannot vary vis-à-vis the citizens of another unit. There is no scope for varied constitutional patterns, disparities as between one federating unit and another, the legislative or executive authority of the units in respect of the States will be co-extensive with a similar authority in and over the provinces; subject to certain adjustments during the transitional period, the fiscal relationship between the provinces and the States and the Centre must also come under one authority’. Pt. Jawaharlal Nehru’s arguments were veracious till Jammu and Kashmir was not part of the British India but his advocacy for the same privileges and treating them at par with the British capitalists, even after the signing of the of the treaty of accession by Raja Hari Singh on 26th October 1947, was unjust, biased and discriminating against the rest of the citizens of India, creating an asymmetry with the rest of the country.
Talking about the apprehensions of the state of Jammu and Kashmir regarding the fundamental rights, Prime Minister Pt. Nehru reiterated in the Lok Sabha on 24th July 1952: ‘Then came the question of fundamental rights. Now there was general agreement that there should be fundamental rights and these fundamental rights should apply to the State. But again there were great apprehensions in the minds of our friends from Kashmir. First of all, the question was how far these fundamental rights might not come in the way of their land legislation now or any later development of it. Certainly we did not want them to come in the way of their land legislation. We like their land legislation. We thought it was very good. The second thing was this. Owing to all this business of invasion of Kashmir State, war, cease-fire, all kinds of continuing tensions, difficulties due to infiltration etc. …the State Government has to be wary and watchful all the time, and so we were told that it was possible that some part of the fundamental rights provisions might very well hamper the activities of the State Government from taking these precautions and these measures. We agreed that it was essential and in the interests of Kashmir situated as the State is now, that the State Government should have that authority. So subject to this, further consideration can be given to it as to how this could be done, so that a fuller consideration of this and like matters was necessary so that the fundamental rights might be applied with such modifications and exceptions as might be considered necessary from this point of view, and agreed upon’. Thus, Prime Minister Pt. Nehru had clearly accepted on the floor of the parliament that he was looking for some way out to bypass the provisions of the Indian Constitution regarding fundamental rights in order to ensure that the special privileges granted to the Kashmiri people would not be compromised even if they stood in gross violation of fundamental rights of Indian citizens, i.e. denial of equal opportunities to them in regard to Jammu and Kashmir.
However, Sucheta Kriplani of the Congress Party, calling the Kashmir issue a complicated subject, argued that the fissiparous tendencies must be dealt with alacrity. Calling it a retrograde measure, she argued: ‘The arguments advanced by the Prime Minister for making this special concession to Kashmir, I am afraid, are not adequate and are somewhat misleading. We are living in a time when the unity of India must be sedulously fostered. If we give semi-autonomous status to one unit of India, the other units will also very reasonably ask for it. Therefore, whether by conceding special concessions to Kashmir we are helping India or are doing great harm to India is a point that has to be discussed and found out’.
Questioning the exceptions made for Kashmir in terms of fundamental rights, she further argued: ‘Then much has been said with regard to the modifications and exceptions to be made in regard to Fundamental Rights. It has been said that this might jeopardize Kashmir’s land reforms. But I think that these land reforms can be maintained with the constitutional provisions. Therefore, why should we make special concessions to Kashmir for the land reforms I do not understand? If you allow these land reforms in Kashmir, you should allow them in India too’. Questioning the stance of Kashmiri leadership and of the Centre, she summed up brilliantly: ‘When Kashmir acceded to India – may be on three subjects – she became an integral part of India. If you are one of us, you should look for the welfare of the whole country. If by demanding certain special privileges, certain extra constitutional rights, you are jeopardizing the integrity and unity of India, you are doing a grave injustice to the country as a whole… Are we a nation, or are we a conglomeration of small independent nationalities. We cannot afford to let our unity to disintegrate. We are treading on very dangerous grounds, if we are going to make special concession to satisfy the Kashmiri leadership’. Sucheta Kriplani, taking a political stance that differed from Pt. Nehru’s, thus questioned the intention of the government at the Centre in enforcing such extra constitutional right which was unjust and which put a question mark to the very idea of India being a nation. She clearly stood against this asymmetrical provision laid down in context of rights and privileges granted to the people of Jammu and Kashmir. This was a clear indication that there were differences of opinion in the Congress Party itself regarding fundamental rights in relation to J&K.
Sarangadhar Das of the Socialist Party of India also raised some pertinent points related to fundamental rights. He argued that Kashmir will be getting more and more isolated because of the complications in the constitutional position. He said: ‘…I must say at the same time that because the whole of the Constitution is not applied, because in the matter of fundamental rights, of personal liberty and freedom the people of Kashmir are deprived of their right of appealing to the Supreme Court which is a discrimination, and because in other matters besides the three subjects there is no full integration with India, there is bound to be some isolation on the part of Kashmir. Theoretically we say, and we will say, that Kashmir is a part of India, an integral part of India. But practically, because the people of Kashmir are not entirely under the Constitution, they are keeping themselves away from the mainstream of life that is pulsating in India for the last five years since we attained independence’. Das specifically addressed the complications and more importantly how the people of Jammu and Kashmir had been deprived of several basic rights especially in terms of citizenship and fundamental rights.
S. Mahanty also brought up the issue that the non-implementation of the major provisions of Indo-Kashmir Agreement like Fundamental Rights, Citizenship or Supreme Court etc. has given rise to a large discontent. He had already pointed out in the Rajya Sabha in 1952: ‘The fundamental rights should not be left to be decided by the state, within its cognizance. That is dangerous’. The debate brought many others to speak in favour as well as against the motion. Devaprasad Ghosh blatantly rejected the special status granted to Jammu and Kashmir. Referring to the points made by Pt. Nehru on Fundamental Rights, he candidly said: ‘In a nut-shell we see that what is given away by Kashmir by one hand is taken back by Kashmir by the other hand. Our fundamental rights are there, but these will be subject to limitations. They will be subject to limitation that the land reforms which Sheikh Abdullah has introduced there should remain and must not be interfered with. I have my own opinions about these various things, but this is not the time or the place to discuss them. What I mean to say is that in this case there have been so many ‘ifs’ and ‘buts’ and ‘notwithstanding’ and ‘nevertheless’ that the whole agreement seems to be not merely hedged in, but almost barricaded by these conjugations and prepositions and it hardly looks like a straightforward document’. He said that by signing the Agreement on dictated terms, the Prime Minister had shown an attitude of complacency.
Questioning the propaganda and objecting to the campaign of misrepresentation to demean the movement of Jammu led by Praja Parishad, N.C. Chatterjee argued in the Lok Sabha on 25th March 1953: ‘I myself assured Sheikh Abdullah “For Heaven’s sake, finalise the Fundamental Rights, barring those things to which you object”. He said “I will do that”. We are not asking the Prime Minister to do anything against the declared wishes of Parliament. Is it the declared wish of Parliament that the Fundamental Rights will be enjoyed by everybody except the brothers and sisters of Jammu?’
A crucial question on the voting rights for Kashmiris was raised on 26th April 1968 in the Lok Sabha by Inder J. Malhotra and Balraj Madhok. The Minister of Home Affairs Y.B. Chavan Said in reply: ‘It is true that Kashmiris had no voting rights and for Parliamentary constituencies, the qualifications of voters are the same in Jammu and Kashmir as in the rest of the country. For elections to the Jammu and Kashmir Assembly, under the State Law, voting rights are restricted to permanent residents; and there is no proposal to change this’. The reply was certainly not enough and it was quite evident that the Centre was not proposing to do anything on this serious issue concerning the fundamental and citizenship rights of the Kashmiris. When Prem Chand Verma raised a similar question related to Centre’s view on voting rights to be given to the residents of Kashmir who went from other parts of India and settled there, the response was similar and nothing substantive was added to the earlier version.
The issue related to the protection of the displaced person’s right was raised in the Rajya Sabha by Lal Krishna Advani of the Bharatiya Janata Party on 2nd March 1987. He highlighted the issues faced by the refugees and the significant judgement delivered by the Supreme Court justifying the grievances related to the displaced persons that they are being denied the basic human rights. He also added the issue of refugees in terms of their right to acquire land and own property and the right to employment which was very crucial. He also addressed the matter that they do not have the right to vote in the Assembly elections. He categorically said: ‘… what is more important is that I would expect the Congress Party to take a very clear, categorical stand on the future of these hapless brethren who constitute, as the Supreme Court said, 8 percent of the population. I am of the view that just as we who came over to this part of the country after 1947, similarly those who went over to that part, should be given full citizenship rights as enjoyed by every Indian citizen. It is anomalous and it is ironic that subsequently in the year 1982 an Act has been passed—this also has been referred to by the Supreme Court in its judgement —Jammu and Kashmir Resettlement Act, under which a person who had gone away in 1947 to Pakistan, who had settled in Lahore, who had settled in Karachi, who had settled in Islamabad and who might have fought a war against India, is entitled even today, if he goes back to Jammu and Kashmir, to enjoy all those rights. But the people who are Indian citizens for the last 40 years are denied these rights. This gross injustice that is being perpetrated, not only by the National Conference but essentially by the constitutional anomaly which is Article 370 and the separate Constitution and also because of the political expediency of the ruling party, must end. The Congress Party must take a clear, categorical stand on this issue’.
Triloki Nath Chaturvedi, speaking in the Rajya Sabha on 15th July 1996, raised certain points and questioned the policies and stand of the government regarding fundamental rights of the Kashmiri Pandits. He accused the Government of being intentionally ‘ignorant of facts’ and complacent. He said: ‘It is no longer a local militant phenomenon which is existing there. It might have been there because there is a question of the training also and that the people are being sent abroad to Pakistan for training by the former Chief Minister etc. I am not going into all that. The basic thing is that the Government has yet to take note of that fact. I am afraid this aspect of militancy is what is being completely ignored. I would also like to mention about the plight of the pandits. Since April 1989 they had been receiving threats. The mass exodus took place next year in April and they are in a pitiable condition. Their plight is really miserable. But nothing substantial is being done for them by the Government’. It could, therefore, be gauged that the plight of the Kashmiri Pundits was the result of lack of any policy and political will on the part of the central dispensation.
The bewilderment and apprehension in relation to J&K was therefore all along discriminatory, setting a dangerous precedent. In all the debates, from the outset, it came out as something beyond imagination as to why an Indian citizen could not have equal rights in J&K. Many parliamentarians stressed that it segregated J&K which was totally improper. Many members even within the Congress party had divergent views and, thus, questioned the arguments advanced for making special concessions to J&K in terms of fundamental rights. They, i.e. the critics called the move inadequate and misleading and reiterated that by doing so a great harm was being done to the very spirit of India.
Serious objections were raised to this lackadaisical approach of the Centre towards the draconian ordinance which curbed the fundamental rights of the citizens in J&K. The special status of the ‘Permanent Residents’ of Kashmir was a blatant denial of fundamental rights to a section of the residents of J&K. It was beyond comprehension during debates in the Parliament, on many occasions, as to why fundamental rights of the residents of Jammu and Kashmir and (non- Jammu and Kashmir) citizens of India were subjected to limitations.
The special constitutional position which J&K enjoyed under the original Constitution that had been maintained and all the provisions of the Constitution of India relating to the States in the First Schedule which were not applicable to J&K were, thus, totally against the federal character of the Constitution thereby giving birth to various asymmetries in terms of rights and privileges to the people of J&K and at the same time discriminating with the rest of the population of India.
As a matter of fact, the citizens of Jammu and Kashmir were always deprived of the fundamental rights facilitating the growth of ignorance towards public sphere and most importantly public opinion. People were never given a chance to speak with respect to what exactly they wanted from the government nor were they given any importance when such matters were raised. They became eventually deprived not only of citizenship and fundamentals rights but also the basic freedom of speech and expression.
To a greater extent, the Centre and the state hoodwinked the reality, i.e. decorating the entire liberty and freedom to the citizens of J&K by simply toying with the Indian Constitution. The very way liberty was ignored for them was so devastating that it eventually ended the peace and stability of the region thereby jeopardizing the very essence of democracy in J&K.
It was, thus, amply clear right from the beginning that Article 370 and the disparity it created in terms of fundamental rights had nothing to do with any sort of apprehensions. On the other hand, it contributed to fissiparous tendencies in the Indian Union. Special status had only taken Jammu and Kashmir towards more and more isolation and, thus, the only solution to stabilize the status and to secure the national interest and provide fundamental rights on an equal footing was the abrogation of Article 370, inclusive of all such discriminations. It was, therefore, high time that a serious rethinking needs to be done in the matter of paramount national importance. And, finally the day arrived when the present government, taking a bold step, eliminated the dastardly disparities.