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One year after abrogation

Article 370 was an aberration that should never have been part of the Constitution, argues G.L. VERMA

G.L. VERMA | New Delhi |

Ever since its inception in the Constitution, the provision for special status for Jammu and Kashmir under Article 370 has been the most controversial one. The provision – coupled with Article 35A – was considered by many as a subterfuge for igniting secessionist activities, fomenting militancy and benefitting few to create trouble for the country. This special status with arrangement for a separate Constitution, separate flag and separate government vested with all powers without enforceability of Central laws was considered anathema to our polity. Described in the Constitution as a temporary provision, it was never supposed to stay for ever. Debates in the Constituent Assembly bear testimony to this fact.

Now at this juncture when a period of one year has elapsed since its abrogation on 5 August 2019, questions are being raised about what was finally achieved by abrogating Article 370. But the question of what Article 370 did for the state in the past has been sidelined. It cannot be disputed that correction of a wrong which continued for more than seven decades cannot yield results in a short span of time. Due to intensive operations to cleanse the valley of all terrorist activities, continuous crossborder terrorism from Pakistan, struggle to ban secessionist activities and a fast spreading pandemic slowed down the pace of development works. It would thus be too early to conclude anything just yet.

Nevertheless, it is widely felt that the security situation has improved beyond all estimation. As per reports of the Ministry of Home Affairs about 110 local terrorists including Hizbul Commander Riyaz Naikoo, Jaish Commander Kari Yasin and other hard-core terrorists have been killed. The ban on the internet and 4G services are now slowly being lifted. Recruitment of Kashmiri youths to the security forces and army has been opened up and over 5,000 candidates signed up for recruitment in the Indian Army. More than 50,000 vacancies are being created in government departments and undertakings. Salaries of government employees have been increased and financial allocations for infrastructural development, roads, connectivity and health-related projects have been given impetus.

Benefits of pensions have been extended to 5532 widows while 172 families were allotted houses under the Prime Minister Awas Yojna. Government is opening 13 Kendriya Vidyalayas in remote areas of Kashmir. Roads are being repaired. However, a false narrative is being projected inside and outside the country alleging massive violation of human rights without referring to Ladakh and Jammu where people have rejoiced at the doing away of Article 370.

It is necessary for this and future generations to know what went wrong with this country about 73 years ago. Nobody except some powerful leaders supported the idea of giving special status to Kashmir. Even Dr. B.R. Ambedkar did not favour the idea and he had told Sheikh Abdullah – “You wish India should protect your borders, she should build roads in your area, she should supply foodgrains but Kashmir should remain with equal status as that of India. To give consent to this proposal, would be (a) treacherous thing against the interests of India and I, as Law Minister of India,will never do it.” He vehemently opposed special status to the state. If debates of Constituent Assembly are perused, it will be seen Article 370 received heavy criticism.

Maulana Hasrat Mohani was first to react with a question – “Why this discrimination please?” History is replete with evidence of the close friendship between Jawahar Lal Nehru and Sheikh Abdullah. It was this friendship and aversion to Sheikh Abdullah towards Maharaja Hari Singh which forced the latter to initially deny signing the Instrument of Accession for three months thereby providing ammunition to Pakistan to lay claim on Kashmir. He signed the Instrument only on 26 October 1947, months after others had signed and only when Nehru assured him that his friendship with Sheikh Abdullah would not cause him harm.

When Nehru came to know about the strong views of Dr. Ambedkar against special status for Kashmir, he lobbied hard, with Gopalaswamy Ayyangar, former Prime Minister of Kashmir and a member of the Drafting Committee and other members, and used his personal rapport to somehow get this provision included in the Constitution of India. To win over confidence of members, the words “Temporary and Transitional provisions” were added with the assurance that the article would be abrogated soon. Pursuing the policy of appeasement at the cost of national interest, the Government moved the Thirteenth Constitutional Amendment Bill in 1962 and removed the word “Transitional”.Jagmohan, then Governor of state in his book “My Frozen Turbulance in Kashmir” describes this Article 370 as “mischievous”. Kashmir receives financial assistance 11 times more than the state of Bihar though its population is not even a third.

Yet the condition of the state remains the same. If none of the Indian companies ever tried to make investments in Kashmir, it was because of special status given to it under Article 370. While lakhs of Indian citizens residing in Kashmir for decades were deprived of voting rights as they were not “permanent citizens” of Kashmir, lakhs of Kashmiri Pandits, who were voters, were driven away and forced to settle outside the state. No Indian law such as IPC, Cr.PC and even Prevention of Corruption Act 1988 was enforceable in Kashmir. No welfare laws as enforced in the whole country applied in the state. Such was the magnitude of discrimination that Indian citizens could not buy and hold any immovable property in the state. Thus, it is pertinent to ask whose interests Article 370 served.If Ladakh and Jammu are considered, people there are pleased and have celebrated the abrogation of Article 370. The issue must be understood in totality before the action of abrogation is criticised.

The writer is an Advocate, Delhi High Court.