Constitutionally Recognized Separatism

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By U. Mahesh Prabhu

During the time of India’s partition, in the year 1947, all the states of the subcontinent were given the rights, under the Indian Independence Act, to accede either to India or Pakistan. Displaying his grand statesmanship the then Indian Union Home Minister, Sardar Patel, succeeded in merging 565 princely states with the Indian Union. As a result of obstinacy and rigidity of Hyderabad and Junagarh, Sardar Patel merged them by employing military means.

But the issue of Jammu & Kashmir was retained by Pt. Jawaharlal Nehru. His national outlook and his capacity to take decision were eclipsed by his affection for Sheikh Abdullah and his animosity with Maharaja Hari Singh and his ingrained Kashmiriyat. This personal ego, of Nehru, is the reason because of which India is loosing, though unconsciously, the state of Kashmir, today.

Jenab Sheikh Mohammad Abdullah was the Prime Minister, and not the Chief Minister of the state of Jammu and Kashmir. The state was governed by its own constitution and not by the Constitution of India. The National Conference flag was the state flag and NOT the tricolour. The Indians needed a ‘permit’ for visiting Jammu and Kashmir. There were several other such separatist concessions and customs which Nehru offered, as his gift, in connection with the delight on Sheikh becoming the ‘sultan of the state’. And yet, Sheikh was not pleased.

There was one special reason behind this dissatisfaction of Sheikh Abdullah despite having the blessings from the Prime Minister of India, support of the UN Security Council and Pakistan. He had ‘fears’ that Hindus of India may come and settle in the state. He had fears that Kashmiri Muslims may be swept by the national mainstream. He had fears that Kashmir may be recognized on the basis of its ancient culture, Kashmir may be amalgamated like other states in India, after Nehru. Such fear would spoil his sleep.

Thus, in order to realize his dream of total independence for Kashmir, it was necessary to keep Jammu and Kashmir away from India permanently. He needed an instrument through which he could protect the seed; he himself had sown, of separatism in Kashmir. He again took Nehru for a ride and brought him under the clutches of his schemes. By incorporating Article 370 in the Constitution of India, Nehru offered him that instrument.

Article 370 of the Constitution gave constitutional validity to Abdullah’s separatist ideas and international intrigues and gave a special position to the state of Jammu and Kashmir. Its stamp ‘confirmed’, to many, the fact that ‘Muslim majority cannot remain with India.’

This Article 370 of the Constitution, which has grouped Jammu & Kashmir as a special and different state, actually ridicules this declaration that Kashmir is an inseparable part of India. This special status delinks the state from rest of the country. It won’t be an exaggeration if it is called ‘constitutionally recognized separatism’.

Is accession of Jammu & Kashmir complete like other states? If the accession is complete then why is this special appeasement? Is it so because there is Muslim majority? Had there been a Hindu majority in the Kashmir valley, would there have been this clause of the Constitution?

It’s a fact that Maharaja Hari Singh signed the accession papers on October 26, 1947 under which the state acceded to India. The accession of J&K with India was carried out on the same patter as other states acceded to it. But as a result of the misfortune of the country, Nehru pressurized the Maharaja for handing over power to Sheikh Abdullah. The Maharaja gulped with bitter draught and exhibited his patriotism. The misfortune does not end here. On the request of Sheikh Abdullah it was decided that the State Assembly will take the final decision on the accession and it was done to appease the Muslim society in Kashmir. From here the State was given the special status. The question arose as to what should be done till the Assembly took the final decision? For this period Article 370 was incorporated in the Constitution as a ‘temporary measure’. But even when the State Assembly ratified the state’s accession to India, the Article was not scrapped. Could there be another bigger instance of treachery than the interest of the vote bank and the politics of appeasement than this? I truly wonder.

With the blindfold of political interest we lent permanency to the temporary character of the Article making our position not only ridiculous before the world but also provided a golden opportunity and solid base for separatist-oriented terrorism to grow in Kashmir. The most shameful part is that we are not ready even now to throw off the soiled blindfold. Instead, it seems as if, we are keen to keep this blindfold as a permanent failure.

It is because of this Article that the Government of India cannot enforce any law connected with Jammu and Kashmir without the approval or concurrence of the State Government. Only defence, external affairs and communications fall in the Central’s list. The Parliament has the powers to frame laws for rest of the states in the country. But Article 370 of the Constitution restricts the hands of the Union Government and the Parliament in doing this in case of Jammu and Kashmir. Its dangerous consequence has been witnessed in the past decades, when the law prohibiting misuse of religious places could not be extended to Jammu and Kashmir, with the result the state does not come within the ambit of secularism. And even after the independence the ignoble thing happened in Kashmir when hundreds of temples were destroyed and where people belonging to a particular community were victimised and subjected to cruelties. On the question of Ayodhya and the consequent Babri Masjid episode the Union Home Ministry had been issuing threats to the Uttar Pradesh Government and ultimately the Government was dismissed under the Article 356 of the constitution but this article cannot be implemented directly in Jammu and Kashmir.

There is only one system of citizenship for the people of India but in case of J&K, its dual citizenship, one of the state and the other of India. The citizens of J&K are citizens of India but the citizens of the rest of India cannot be citizens of J&K. If a girl belonging to J&K marries a boy from outside the state, who is not a state subject, she looses all her rights in the state. Even wealth tax cannot be imposed in the state. The Urban Land Act, 1976, which is in force in the entire country is not applicable to J&K. The result of this is that rich landlords, belonging to the majority community in the Valley, indulge in economic exploitation of the poor and the Indian citizens, who are non-state subjects and living in the valley, cannot even secure loans from the financial institutions.

It is quiet evident that Article 370 has not integrated J&K with India but it has delinked it. There in Kashmir is no place for secularism and nationalism in the mind of youth. The feelings of regionalism, communalism and separatism have developed in their mind. Instead of coming closer to the national mainstream, they have distanced themselves from it and have now started raking up the question of independence.

The ongoing row over the land transfer to Amarnath Shrine Board, too, is just a small consequence of this historical blunder, of including article 370 in the Indian Constitution. I am unable to understand why is it that Hindus cannot be allowed to have lands allotted for their religious purposes in Kashmir, when Muslims can have thousands of mosques anywhere in this country?

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