With the signing of J & K Reorganisation Bill, 2019 by the President of India on 9 August 2019, duly passed by the Parliament of India, a new beginning of ‘New India’ with the full integration of Kashmir with the rest of India has started. After the tragedy of the Partition of Bharatavarsha in 1947, ‘divided’ India had to start her journey as a Nation with another sour point of disintegration symbolised by Kashmir.
In a very brief narration of the history of Jammu and Kashmir in the last phase of freedom struggle in India, we must acknowledge that Indian Independence Act 1947 did not provide any opportunity to the then ruler of the Princely State of Jammu and Kashmir, Maharaja Hari Singh to accede to the Indian State with a permanent status as per his choice as shown by the Article 370. Art 370 itself was not a permanent status, but only a temporary provision as we got it in Indian Constitution. But with the abolition of Constituent Assembly of J&K in 1956 under the chief ministership of Sheikh Abdullah, it was thought by all that Article 370 has assumed the status of permanency in Indian Constitution. But the status of Art 370 as temporary within the framework of the Constitution of India has already been proved by so many Presidential Orders issued by the Union of India to effect different Indian laws in Kashmir. Article 370 (1) had not been abrogated, but Article 370 (2) and (3) had been abrogated through the Presidential Order and this order had been proclaimed on the recommendation of the Governor of J&K with due interpretative power under Art 367 of the Constitution of India. Now Art 370 has been totally defunct after the notification of J & K Reorganisation Act, 2019. Now the pertinent question: how far has the Governor’s recommendation constitutional when in the state legislature has already been dissolved? Here arise the fundamental questions on political-constitutional, social-economic and cultural-traditional rights of the citizens of Kashmir.
On the question of political-constitutional propriety it can be said that Jammu and Kashmir has been an integral part of the Union of India and the citizenship of India has been unitary. The Parliament of India represents collectively the will of the citizens of India including the citizens of Jammu and Kashmir. So, when the political parties could not form the government of Jammu and Kashmir, the Governor has the constituent power to represent the will of the citizens to recommend for the abrogation of Article 370. Of course, as per the constitutional provisions, the Supreme Court has the power to review the constitutionality of this recommendatory power of the Governor and the Act passed by the Parliament of India.
Let us come to the question of social economic probity. Indian Constitution has been one of the greatest social document which bestows equal rights to all our citizens without discriminating on the basis of gender, caste, creed, faith, race etc. and Indian citizenship is unitary. But, being the integral part of Indian Union, Jammu and Kashmir did not follow the principles of equality to the citizens. In Jammu and Kashmir the minorities like Hindus, Buddhists, Sikhs did not have equitable rights and they have no rights of reservation. Not only that the Hindu refugees of 1947 from Pakistan did not have permanent residential status and they didn’t have citizenship. Even the Right to Information Act has not been in operation in that state by using the temporary provisions. Article 370 had been used by the parties of J&K to perpetuate these types of discriminatory practices.
In case of cultural and traditional rights the much hyped Kashmiriyat got an undue weightage in Kashmir discourse. It is claimed that Article 370 would protect and honour Kashmiriyat. But the questions are: Did Kashmiriyat mean only for Muslim Kashmiris? Not for Hindu Kashmiri Pandits or for Buddhists? Have not Kashmiriyat been part of millennium old Indian Dharmic traditions? Did Kashmiri Shaivism not a part of Kashmiriyat?
Now come to another viewpoint. As Jammu and Kashmir has been integral part of India so the constitutional provisions of the Union of India must have been applied rightly through the whole of Jammu and Kashmir much earlier. Because India that is Bharat has been a Sovereign Union with the unity and integrity of all citizens as an undivided entity. No parts of this State, be it any state, legislature or judiciary can claim to be sovereign. The union of Indian citizens has the ultimate sovereign power collectively. So no parts of citizenry can claim to have special status until and unless provided by the Constitution.
Besides, there arises the question of the right to autonomy in federal structure, the sanctity of federalism etc. But this so-called autonomy of federal characteristics have been provided in the Constitution itself. The Indian Constitution is Unitary Federal in letter and spirit which binds all citizens throughout the length and breadth of Bharat in unitary way. And this unitary character of India is developing her Indianness or Bharatiyatva as a Nation. In this Union there has been no place for autonomy without accountability.
In this context also arises a question regarding the appropriateness of Article 371 and its sub-clauses. But Article 371 has provided few ‘special’ provisions regarding tribal and ethnic characteristics of few citizens and their rights to preserve and continue traditions and ethnicity. These rights of ethnicity of few Indian have been like the fundamental rights of minorities. Every ethnic community has right to these fundamental rights to preserve their identities. It will be inappropriate to confuse the special provisions of Article 371 with that of the temporary provisions of Article 370.
Now it is our collective challenge to integrate the citizens of Jammu and Kashmir and Ladakh with the rest of India and become a true Union of Bharat. Because the age old Kashmiriyat like other sub-nationalism of Bengalis, Tamils, Marathis etc. has always been parts of millennium old 'Culture State' of India which is now developing as 'Nation State'. So, 2019 has ushered a 'New' Kashmir of ‘New India'.
@ Sujit Roy
15.08.2019
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