Kashmir remains besieged ever since 1947. The siege though varies in intensity from one time period to another. However, variation in intensity of siege has not resulted in lifting of barriers that stifle normal living. Kashmir lives from day to day—stifled, constrained, in compromised psychological state. Its polity is largely dictated by the powers that be. It is not a normal roll-out of political affairs, but measured to the needs of ruling clique. The presumed needs of the ruling clique have resulted in varying forms of constitutional assault from time to time, ruffling the polity. Grossly disturbed polity touches the very core of public life, where people find disconnect between the manner they want to live in, and the life they are forced to live. The abnormal state of affairs continues despite decades of resistance in one form or another.
Given the disputed political status of J&K State, the accession was temporary and conditional, subject to final disposition of the dispute. However, until the final disposition, a constitutional bridge had to be established to manage the relations between J&K State and Union of India. Article 370 was designed to be the bridge. Instead of sanctifying it, as a symbol of trust, it was systemically eroded, as constitutional assault continued in one form of another. Nothing however has touched the sensitivities of people of J&K State, as much as involving the judiciary vis-à-vis Article 35-A. It started with Arun Jaitley in 2013 talking of judicial challenge to Article 35-A, taking it as an infringement of the rights of Indian citizens. The judicial challenge materialized soon after cultural nationalists assumed power in 2014, with the frontline organization ‘We, the Citizens’ petitioning the Supreme Court. Illegal West Pakistani settlers in J&K from 1947 followed suit, so did the ‘Safai Karamcharis’ of 1957 temporarily settled to overcome the strike of Jammu municipality workers. They were recruits from neighbouring districts of Pathankot and Amritsar. Female petitioners joined the row, asking for post-martial property rights for their descendants, following marriage with non-state subjects. It is a multi-sided challenge, largely left un-contested by the evasive federal government, and poorly defended by state government.
The evasive attitude of federal government is meant to cater to the stand of cultural nationalists that the last vestige of special status of J&K state subjects should be erased, hence the challenges to Articles 370 and 35-A. Since, legislative erasing has obvious impediments, hence judicial challenge has been launched. The past constitutional work-outs and commitments are labelled as Nehruvian blunders. It is a constant refrain in the public discourses of cultural nationalists, and it runs on social networking sites, too. These sites are manned by some of the committed cadres. The Nehruvian blunders need to be corrected, relate the committed cadres and the network of sympathisers. They find support from television network of hyper-nationalists. In this disharmonizing parading of voices, the voice of reason gets lost. The plan works-up to suppress the voice of Kashmir by masculine militarism and adding to it cacophony of discordant notes on prime time TV shows meant to earn TRP ratings, and then spicing it with offensive jottings on social networking sites. The siege of Kashmir is thus total, as also keeping on tenterhooks J&K’s populace.
Playing the devil’s advocate, it could be said on historical evidence that but for Nehru, India would not have had Kashmir. However, it may not fall into our lot to pronounce a judgement on Nehru. Good or bad, right or wrong, whatever Nehru might have done or left undone, he was acting in his capacity as Prime Minister of India—the chief political executive. Hence his commitment and that of the regime, he was leading, is in essence the commitment of Union of India. The constitutional relationship worked out between J&K State and Union of India cannot be erased, totally or partially, on the plea of cultural nationalists taking exception to Nehruvian thought and his legacy. From the accession being temporary and conditional, subject to final disposition of ‘K’ dispute to 1949 working of constitutional bridge—Article 370, and to the 1952 agreement of safeguarding the rights and privileges of state subjects, much water has flown down the Ganges, Jhelum as well. And the safeguards provided by various agreements need to be held sacrosanct until the final disposition of ‘K’ dispute, rather than keep Kashmir on tenterhooks, perpetually.
Delhi agreement of 1952 has several clauses/paras. Clause/para (2) of the agreement reads, ‘it was agreed between the two Governments that in accordance with Article 5 of the Indian Constitution, persons who have their domicile in Jammu and Kashmir shall be regarded as citizens of India, but the State legislature was given power to make laws for conferring special rights and privileges on the ‘state subjects’ in view of the ‘State Subject Notifications of 1927 and 1932: the State legislature was also empowered to make laws for the ‘State Subjects’ who had gone to Pakistan on account of the communal disturbances of 1947, in the event of their return to Kashmir;’ the same commitment was applied in the President’s Order of May, the 14th 1954 in Article 35-A. The three member bench of Supreme Court may dismiss the challenge to this article in the hearing on August 31, 2018 in view of its legal aspects, and the previous rulings of 1955 (P. L. Lakhanpal vs The State Of Jammu And Kashmir on 20 December, 1955) and 1968 (Sampat Prakash vs State Of Jammu & Kashmir on 10 October, 1968) wherein the President’s constitutional right to issue an order was upheld. Or, the Supreme Court may pass it to 5 member constitutional bench to adjudicate on its constitutional validity, which is bound to add to the siege in Kashmir, resulting in keeping the populace on tenterhooks.
Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]
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