Seventy years on, digging a deeper hole in Kashmir

The move by a BJP/RSS front organization to repeal the validity of Article 35-A will lead to adverse consequences are likely to further devastate an already suffering region. Its long-term negative consequences are likely to outlive us all.

Written by Salman Anees Soz | Published: August 14, 2017 5:25 am
kashmir, kashmir unrest, independence day, kashmir independence, BJP kashmir, JKSC, RSS kashmir, muslim kashmir, Maharaja Hari Singh, Supreme Court, Article 35-A, indian express news, opinion In seeking to relitigate Article 35-A, the Sangh Parivar is taking aim at J&K’s special status and Article 370, which ties Muslim-majority Kashmir to the Indian Union.

The clouds always appear ominous when it comes to Kashmir. But as India marks the 70th year of independence, the clouds look menacing. A little known non-governmental organization, Jammu and Kashmir Study Centre (JKSC), considered a front of the RSS and the BJP has challenged the validity of Article 35-A of the Constitution, which allows the state legislature to regulate the rights of its permanent residents with respect to matters such as property, settlement and employment. In seeking to relitigate Article 35-A, the Sangh Parivar is taking aim at J&K’s special status and Article 370, which ties Muslim-majority Kashmir to the Indian Union.

We need to carefully consider the implications of this push to abrogate J&K’s special status. Its adverse consequences are likely to further devastate an already suffering region. Its long-term negative consequences are likely to outlive us all.

After Maharaja Hari Singh signed the Instrument of Accession in October 1947, the government retained control over only three subjects – foreign affairs, defence and communications. The pre-eminent Kashmiri leader of the time, Sheikh Mohammad Abdullah (and his team) negotiated with the government regarding the scope of J&K’s future relationship with the Union. Pandit Nehru, Sardar Patel, and Gopalaswamy Ayyangar were intimately involved in this process.

In October 1949, the Constituent Assembly adopted Article 370. It restricted Parliament’s legislative powers with respect to J&K to the three aforesaid areas of defence, foreign affairs and communications. But over time, a series of Presidential Orders have substantially eroded J&K’s autonomy. The first presidential order in 1950 divided powers between J&K and the central government. In 1952, the Delhi Agreement ensured that other provisions of the Constitution were extended to J&K. The presidential order of 1954 formalized the extension of these additional provisions to J&K and extended Article 35-A to the state. Jammu and Kashmir’s Constituent Assembly upheld the 1954 Presidential Order and these provisions became part of J&K’s Constitution of 1956.

In the Supreme Court, the JKSC has made the case that the 1954 Presidential Order is invalid because constitutional amendments must follow a separate, defined process under Article 368.

There are some who argue that nullifying the 1954 Presidential Order would void all J&K related Presidential Orders since 1950. This would likely open a debate on J&K’s accession to India. On the other hand, some make the moral argument that if people of J&K can buy property or take up employment in the rest of the country, then why shouldn’t outsiders have the same rights in J&K. Some argue that J&K’s women face discrimination if they marry a non-state subject because their children lose permanent resident status in J&K. This does not apply to men who marry non-state subject women.

I don’t intend to address legal issues here. I will leave that to constitutional scholars. I acknowledge the weight of moral arguments put forward by those who oppose J&K’s special status. But the world is replete with examples, including from our own country, where communities get special protections for sensitive political, cultural, and historical reasons. I have spoken against the specific marriage clause that discriminates against women. With political consensus, I am certain a solution to eliminate this inequity is possible.

But, the main issue that concerns me is the underlying reasons for the current litigation. By understanding this issue, we may yet avert a crisis that is unlikely to end well for India, for J&K, and for our future generations. It should be clear to everyone that the Article 35-A case before the Supreme Court is essentially political.

The abrogation of J&K’s special status is a long-standing goal of the Sangh Parivar and has consistently featured in the BJP’s election manifestos. The belief is that the Muslim-majority nature of J&K lends itself to separatist tendencies. By undoing state subject laws and J&K’s special status, the RSS wants to change the state’s demographic profile. This would lead to permanent integration and assimilation of the population into the Indian mainstream.

This is not a new idea. Other countries have tried this strategy. Most notably, the Chinese Communist Party (CPP) engineered migration of ethnic Hans into Xinjiang (and even Tibet) as a way of “pacifying” these restive regions.

The Chinese example is relevant because, like Kashmiris, Tibetans (5 million) and Uighurs (9 million) are small ethnic minorities. The mainstream Han comprise over 90 per cent of China’s population. To deal with a restive Xinjiang, the CCP engineered large-scale migration of ethnic Han into the region between 1950s-1970s. Han Chinese now comprise 58 percent of Xinjiang’s population. In 1949, Xinjiang’s Han population was only 6 percent.

Repressive policies accompanied the Han migration. The CCP regulated religious freedom, language, school curriculum and employment opportunities to the detriment of ethnic Uighurs. However, after almost seven decades, billions of dollars of investments, a demographic inversion, and its “Strike Hard” policy, Xinjiang remains restive. Over time, extremism has emerged as a threat in a region that was known for moderate Islamic practices. Uighurs remain alienated and an existential fear grips them.

The machinations of the Sangh Parivar in Kashmir are dangerous and founded on majoritarian and even colonialist instincts. Abrogating the already diminished special status of J&K is likely to cause a precipitous deterioration of the conditions in Kashmir. The space for mainstream politics will shrink much further. Those sections of Kashmiri society that believe peace with dignity within the Indian constitution remains a possibility will become even more marginalized than they already are.

Kashmiri youth, angry and deeply alienated, may think they are under siege. Extremism can seem alluring in such circumstances and nobody wants that. The long-standing conflicts in China should be sufficient warning that despite decades of “integrative” policies and even demographic marginalization, indigenous communities resist coercion. I am afraid this conflict will fester even when all of us are long gone and recorded history will tell a tale of how myopic, majoritarian policies unleashed a demon whose destruction we did not live long enough to fully witness.

In all of this, I ask myself one question: how will democratic and diverse India justify an approach that appears inspired by authoritarian China? To this I have no answer.

Salman Soz, formerly with the World Bank, is a spokesperson of the Congress party and Regional Coordinator of the All India Professionals’ Congress (AIPC), North Zone. He tweets @salmansoz

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  1. Ashokkumar Bhanot
    Nov 8, 2017 at 10:40 am
    separatic leaders gratt the trio intriguingly preventing the migration of hindu so that they remain in minority. Art 370 prevent Indian citizens to buy the land in j k so that there will be no demographic change. this is unfortunate. Indian citizens want demogr aphic change and assimilation of p eople of others INIAN states indian consttution gave equal ri ghts to all indians including j k so special status given to j k is violence of indian cons ution and therefore illlegal under Art 35 A. SO Art 370 and Art 35A should be declared null and void.
    1. I
      Indian Tiranga
      Aug 16, 2017 at 6:14 am
      At some point of time, people of Kashmir also needs to think whether they are good as part of Secular, Democratic and economically progressing India or want to join Pakistan only in the name of religion. Lets not forget story of East Pakistan as well as marginalization of Baluch people etc. Kashmir's people should think of more integration with rest of India that will bring more benefits and further prosperity. Throwing stones only attracts hatred. Even if you become Independent nation you will get similar type of Government. If you go to Pakistan, it is basically military calling shots in the facade of democracy. If these Articles are there to help cause of "Kashmiriyat" then it was already thrown out in the name of religion when Kashmiri Pandits were made to leave their ancestral home. Having stated that, I agree that one should approach carefully when it comes to Kashmir. We just do not need the land but also the people.
      1. S
        Aug 15, 2017 at 9:09 am
        Both article 370 and 35A should be repealed and J K should be like other states of India. Unless it is done other states also try to be like Kashmir and India will no more be India.
        1. kamal singh rawat
          Aug 15, 2017 at 9:00 am
          Sir, we have Muslims staying in other parts of India also. The Supreme Court has also questioned this article. It is not a Demand of the RSS. Also why should Jammu and Ladhakh suffer bcoz of Muslim majority Kashmir. Kashmir was not always Muslim majority. Why should Kashmiri Muslims be allowed to biy property in other parts of India. The Author does not happen what happens when a Pakistani citizen marries a Kashmiri . Does he /she not become an Indian by default. India should seperate from jammu and Ladhak from Kashmir. The development of these regions and the choking of funds to Muslim majority Kasmir ( claim of th author) will automatically bring them to their senses. Its a war out there and the ARMY SHOULD BE GJVEN ALL POWERS. Regards
          1. Ashok Gulati
            Aug 15, 2017 at 6:36 am
            Kashmir is as much a natural part of the country as any other state. Accession was legal but because of Nehru, we were deprived of a part of Kashmir who never tried to save whole of Kashmir but what with us is because of our Army. Nehru surrendered to abdhulla and put many unjustified clauses. The author must know this fact or has deliberately bypassed it. India is not Expansionist as China which has captured / grabed Tibet and many more small states and now eyeing Bhutan. The author is writing as a Muslim and not as an Indian because he has deliberately omitted Kashmiri pandits.
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