UNDERSTANDING JAMMU AND KASHMIR – AMENDMENT TO ARTICLE 370 AND THE ROAD AHEAD

“Why this discrimination please?”, asked Maulana Hasrat Mohini in his great poetic tone on 17th October 1949 in the Constituent Assembly. The answer to the question of Mr. Maulana Hasrat Mohini was given by Mr. Gopalaswami Ayyangar (a former Diwan to Maharaja Hari Singh of Jammu and Kashmir and the principal drafter of Article 370 of the Constitution of India 1950 as amended thereof). Mr. Ayyangar stated that for various reasons, unlike other princely states, Kashmir had not yet been ripe for integration, as India had been at war with Pakistan over Jammu and Kashmir (J&K) and there was a ceasefire condition prevalent in J&K.

Earlier, the autonomy enjoyed by the State of J&K for a long period of time included the permanent residence of the people of J&K and their rights; non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and non-alteration of name and boundaries of the State, without the consent of its Legislature, etc. Later, the J&K High Court brought a change in one of the aforesaid aspects whereby it held that any daughter of the permanent resident of J&K would not lose her rights over land by marrying someone from outside the State.

Thereafter, Article 370 was blamed to strengthen the separatist tendencies in Jammu and Kashmir when allegations regarding the atrocities and crime against Kashmiri Pandits were unfolded. The people in favour of Article 370 argued that it was about providing space, about matters of governance, and about people of the State who felt deeply vulnerable about their identity and felt insecure about their future.

But with passage of time the conditions in the Valley deteriorated, from the youth being misguided by unruly forces to the injustice against women and law and order conditions. The deployment of heavy security forces and Armed Forces (Special Powers) Act, 1958 as amended thereof was never accepted by the locals of J&K and they felt that the Indian Government was trying to curtail their rights and freedom. Thereafter, the voice for a separate Kashmir became stronger like never before.

But it is said that the Indian Government, on other hand, failed time and again, when few unruly militant groups kept misguiding the people of Kashmir tried in order to spread hatred against India. The economic condition of the Valley kept deteriorating to the extent that poverty deepened its root.

Thus, the Government of India recently took an important decision of scrapping the special status of J&K including special privileges to “permanent residents” of the state, by exercising the Presidential power under Clause 1 of Article 370, vide Presidential Order dated 05-08-2019.

The Union Home Minister, Shri Amit Shah stated that now the Valley will get all the benefits and there will be no insecurities in the mind of Kashmiri’s regarding their life and future, as this step would generate the feeling of belongingness, which had been missing since independence. This would also help to generate more employment and investment and educational opportunities, which in turn would help the Valley to get out of poverty. It may be said that with this decision a huge step has been taken towards achieving humanity, peace and development for people of J&K as they have been granted the long asked for “AZADI” (freedom) from poverty, illiteracy, injustice, and beyond all ill forces from across the border.

Sourabh Kumar Mishra
Senior Associate
The Indian Lawyer