[Reader-list] Some Points from discussions

[Aditya Raj Kaul]

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

Link - http://www.kashmirherald.com/featuredarticle/article370.html

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.


On 9/16/08, Partha Dasgupta <partha.dasgupta at eliteinfomachine.com> wrote:
>
> Dear Pawan,
> Won't claim to know how Article 370 is affecting J&K since I don't know.
>
> However, am aware that Article 370 is also affected for Himachal Pradesh
> and
> some other states where it is not causing an issue.
>
> Am not disagreeing with what you are saying. Merely trying to understand
> what you are trying to say.
>
> Rgds, Partha
> ..........................
>
> On Tue, Sep 16, 2008 at 6:57 PM, Pawan Durani <pawan.durani at gmail.com
> >wrote:
>
>
> > The only solution is "abolishing Article 370". It would help Kashmir &
> > Kashmiris integrate completely into India.
> >
> > On Tue, Sep 16, 2008 at 6:21 PM, Vivek Narayanan <vivek at sarai.net>
> wrote:
> >
> > > Kshemendra,
> > >
> > > I understand from your comments below that you think that any possible
> > > "post-national" solution to the question of Kashmir is hogwash, dreamy,
> > > silly, unthinkable-- in the same way that the idea of a nation-state
> > > with a democratic polity was completely unthinkable a few hundred years
> > > ago?  After all, it is not the specifics of one plan or another that
> you
> > > are objecting to, it is the very idea itself, correct?
> > >
> > > Fine-- but my question is, what is your solution?  Do you think
> > > violently assertive forcible Indian military occupation, objected to by
> > > the majority of the Kashmiri population, with all kinds of ripple
> > > effects including (possibly) the steadily increasing militancy and
> > > radicalisation of the population, the increasing bitterness that
> reduces
> > > the chances of reconcilliation and peace day by day, and only
> > > increasingly so, should and can continue until kingdom come?  Or do you
> > > have any other ideas and possibilities in mind?
> > >
> > > I ask this as an earnest question, out of curiousity, not as a
> polemical
> > > point.
> > >
> > > Vivek
> > >
> > > Kshmendra Kaul wrote:
> > > > Dear Jeebesh
> > > >
> > > > You are overstepping yourself. We are still on Point 1 of  your
> > "possible
> > > ways" arising from your "some friends were talking about different way
> of
> > > thinking about Kashmir."
> > > >
> > > > "Referendum" was not in the menu of "possible ways" you floated. Let
> us
> > > get back to your "Demilitarized Zone"
> > > >
> > > > You say that a "wide area" has to be De-militarized. That is a
> > > meaningless generality. Specify that "wide area" if you can. You will
> not
> > be
> > > able to do it if you have not thought over the "possible ways" you have
> > > floated. Do some thinking first.
> > > >
> > > > You suggest a "popular suffrage" to mark the "border". Over what
> "area"
> > > do you propose that this "popular suffrage" will take place? In that
> > "area"
> > > who will participate?
> > > >
> > > > Obviously the "suffrage" cannot take place specifically in any
> proposed
> > > "wide area" on "both sides of  the border" which you seek to
> > De-militarize
> > > because the very purpose of the "suffrage" is to demarcate precisely
> that
> > > "wide area".
> > > >
> > > > Kshmendra
> > > >
> > > >
> > > >
> > > > --- On Tue, 9/16/08, Jeebesh <jeebesh at sarai.net> wrote:
> > > >
> > > > From: Jeebesh <jeebesh at sarai.net>
> > > > Subject: Re: [Reader-list] Some Points from discussions
> > > > To: "Sarai Reader-list" <reader-list at sarai.net>
> > > > Date: Tuesday, September 16, 2008, 4:14 PM
> > > >
> > > > Another Floater :)
> > > >
> > > > For a serious referendum to happen a very wide area has to be
> > > > demilitarized on both side of the present border. There can be a
> > > > popular suffrage to mark the border and hopefully something better
> > > > than the present situation may emerge.
> > > >
> > > > But my floater was not so much about the real-politic of border
> > > > making. It was about thinking a side ways to get out of this
> > > > "bleeding" politics and use all the various available international
> > > > institutions and instruments to arrive at some new arrangements.
> > > >
> > > > warmly
> > > > Jeebesh
> > > >
> > > >
> > > > On 16-Sep-08, at 3:38 PM, Kshmendra Kaul wrote:
> > > >
> > > >
> > > >> Dear Jeebesh
> > > >>
> > > >>
> > > >>
> > > >> The "Demilitarized Zone" is your proposal and not mine. You
> > > >>
> > > > should
> > > >
> > > >> be the one to specify its borders. Unless, as is more than likely
> > > >> and is apparent, you have done very little thinking over the idea
> > > >> you have floated.
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >> Kshmendra
> > > >>
> > > >> --- On Tue, 9/16/08, Jeebesh <jeebesh at sarai.net> wrote:
> > > >>
> > > >> From: Jeebesh <jeebesh at sarai.net>
> > > >> Subject: Re: [Reader-list] Some Points from discussions
> > > >> To: "Sarai Reader-list" <reader-list at sarai.net>
> > > >> Date: Tuesday, September 16, 2008, 1:15 PM
> > > >>
> > > >> On 15-Sep-08, at 11:33 PM, Naeem Mohaiemen wrote:
> > > >>
> > > >>
> > > >>> But I think a BD led UN peacekeeping force in Kashmir would not
> fly.
> > > >>>
> > > >> Why not? :) It will be South Asia in a complex entangle.
> > > >>
> > > >> And Kshmendra, borders are always a contested lines. You could
> suggest
> > > >> what it could be.
> > > >>
> > > >> _________________________________________
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> > > >> subscribe in
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> > > >>
> > > >>
> > > >
> > > > _________________________________________
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> > > subscribe in
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> > > >
> > > >
> > > >
> > > > _________________________________________
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> > > > Critiques & Collaborations
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> > > subscribe in the subject header.
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> > >
> > > _________________________________________
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> > > Critiques & Collaborations
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> > _________________________________________
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> > Critiques & Collaborations
> > To subscribe: send an email to reader-list-request at sarai.net with
> > subscribe in the subject header.
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>
>
>
>
> --
> Partha Dasgupta
> +919811047132
>
> _________________________________________
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