New Delhi – Article 370 has been amended through an innovative method by the Government, contrary to the common impression that it has been abrogated. Certain terms like Constituent assembly of Kashmir in the article have been replaced by term Legislative assembly through an amendment of article 367 which itself has been done by making use of the provisions of article 370 itself.
The constitutional validity of the amendments and the process adopted have already been challenged in the Supreme Court and they will pronounce on it in due course. The legal fiction that the courts will require to decide on is whether, whatever Parliament or the President does in respect of J&K, it is the State Assembly or the State government that is actually doing it. How far should this legal fiction be allowed to prevail? Are there any legal limitations on this substitution of the State’s powers and functions with the Centre’s own, and whether it falls within the wide scope of executive power under Article 356?
Amongst several arguments against Article 370 and 35(A), the most important is that it was a hindrance to the integration of J&K with the rest of the country by according special status to the state. However, the fact is that the Article included in Indian Constitution to give effect to the provisions of “The Instrument of accession” was a bridge connecting J&K with rest of India.
Unless overturned by the Supreme Court, the amendments to Article 370, abrogation of Article 35(A) and division of the state in two Union territories have become a fait accompli. Therefore, it is important to analyze its implications.
Irrespective of the fact that a large number of people in the rest of India have welcomed the decision, the main stakeholders i.e. the residents of Kashmir have yet to speak. All the Kashmiri leaders are in custody. Absence of any street protests cannot be taken to be an acceptance of the decision because the entire state is under curfew. No congregations are allowed. Restrictions were not lifted even on Eid and remain in force during Friday prayers. Whatever information that filters out from foreign media indicates that the decision has not been welcomed. Fear of widespread protests and clashes is perhaps what is preventing the Government from relaxing the restrictions. That is the reason for not restoring even the telephone and internet facilities.
It appears that we are in for a long haul in Kashmir. The force levels required to control the situation will have to be even higher than those deployed before the decision. Further, the government will have to be on guard to ensure that there is no shortage of essential items and medicines due to prolonged restrictions which may lead to protests irrespective of the restrictions.
The act of amendment in itself cannot lead to integration as sought. Integration of land was never in question because even the constitution of J&K states that J&K is an integral part of India. It is the integration of people through winning their hearts and minds that is important. This is going to be a long drawn process and will depend upon how much and how quickly the Government is able to deliver its promises.
The aspirations of normal Kashmiris are the same as that of any other Indian. They too want jobs, decent living, peace and security.
In order to enhance security, the focus has to shift from killing militants to controlling militancy. This can be achieved only through effectively cutting of the sources of finance and logistics to the militants. Effective coordination of intelligence efforts to prevent any major incidents will also be important. Another important aspect of the strategy to win hearts and minds will require the security forces to display exemplary behavior and observance of human rights. Incidents like the person tied to the jeep being paraded all over must not be repeated. One small step in enhancing public confidence about the sincerity of Government is to consider removing AFSPA from peaceful areas like districts of Kathua and Samba.
Chastened by the move, Pakistan is leaving no stone unturned to internationalize the issue. India will be required to muster up diplomatic efforts to ensure that Pakistani actions do not receive much traction. Further, the increase in ceasefire violations indicates that Pakistan will push in militants to keep the situation on the boil. It is therefore, necessary to ensure proper vigil on borders besides concerted efforts to win hearts and minds.
Already there are voices from Ladakh and Jammu region voicing opposition to purchase/ allocation of land to outsiders. No less than a person than the MP from Ladakh has pointed out that cash rich outsiders will be at an advantage if land purchase is allowed without respect to the rights of tribals as the locals do not have adequate money. Similar views have also been expressed by the local BJP leaders from Jammu.
Coupled with the above is the problem that land is not available in J&K. There are hardly any plain accessible areas for setting up large industries. The barren land is in a mountainous region which may not be suitable because of inaccessibility and logistical challenges. Communications also remain a major issue with just one operational Highway and no rail connection. Even the existing highway remains blocked for several days during winters due to landslides.
The most important action required to be taken is to reinitiate the political process in the valley. This can happen only by initiating dialogue with identified leaders. The population is not likely to accept any leader who is considered to be imposed by the Center. Free and fair elections therefore must be held at the earliest.
Euphoria displayed in rest of the country over the move is in total contrast to what is happening in Kashmir. The move certainly has not been liked by Kashmiri people, however this will certainly help BJP win elections in three state assemblies due later this year.
Sanjiv Krishan Sood
Sanjiv Krishan Sood is a retired Additional Director General of Indian Border Security Force. He has extensive operational experience of serving all along Indo-Pak and Indo-Bangladesh Borders including almost nine years on the line of Control in J&K.