It legitimised inhuman treatment against many sections of Kashmiri society, particularly women, refugees, SCs, STs and millions of children born in the state.
New Delhi: The unmaking of Articles 370 and 35A by the Narendra Modi government will not only go a big way in rehabilitating the basic human rights and justice for the 1.4 crore people of Jammu & Kashmir, it will also help the Muslim community in the rest of India for they were made to lose their face by the blatantly communal acts of this only Muslim majority state against its non-Muslim residents.
The two arguments being offered by the supporters of Article 370 and 35A are that they were a “national promise” made to the people of Kashmir and that they offered “special status” and “special powers” to the state Assembly and its leaders. But unfortunately, none of them have tried to go into how and on which people these “special powers” have been used by Kashmiri leaders over the past 70 years.
A close scrutiny of why the people of Ladakh and Jammu are overwhelmingly celebrating this change will bring into focus the many draconian sides of these Constitutional provisions that forced the Narendra Modi government to undertake this Constitutional surgery. Some of these provisions would put even Hitler’s Nazi laws to shame for the inhuman treatment they legitimised against many sections of Kashmiri society, particularly on women, refugees, Scheduled Castes, Scheduled Tribes and millions of children born in the state after the application of these laws.
Article 370 was introduced in the Indian Constitution on 17 October 1949 as a “temporary” measure to implement the Indian Constitution in J&K in a gradual manner. But Article 35A was added through a Presidential order on 14 May 1954 to thwart this “temporary” nature of 370 by empowering the state Assembly to define its “permanent residents” and their rights and privileges as against other citizens of J&K and India. Although any Presidential Order essentially needs approval of both Houses of Parliament before making it a “law” yet, for unknown reasons, 35A was quietly inserted into the Indian Constitution as an “Annexure” without the knowledge or approval of Parliament. This anomaly was in the Supreme Court for legal scrutiny when Parliament annulled all such special provisions for J&K in a Constitutional sweep.
Most people cannot think of any community beyond the Kashmiri Pandits and Sikhs who have been victims of Kashmiri violence and arrogance. One of the most horrendous cases of inhuman abuse of Articles 370 and 35A is that of the Balmiki (the sweepers) community of the state. The members of this community, now numbering over a hundred thousand, were persuaded by Sheikh Abdullah and Bakshi Ghulam Mohammad in 1957 to migrate from Punjab to J&K to undertake the scavenging of night soil. This had followed a long strike by local scavengers, which had thrown the state administration and the community into crisis. Brought in on allurements like regular jobs, local citizenship and attractive salary, these promises have yet to see the light of day after 62 years.
Leave aside offering them reservation in jobs, as enjoyed by the SCs across India, young boys and girls, born as third or fourth generation of these families cannot get admission in institutions of higher learning in J&K. Those who manage to acquire MBBS or similar high level degrees from other states, are not eligible in J&K to apply for any government job other than that of a sweeper. Thanks to Article 370 and related laws, members of this community are not eligible even to get the benefits of the Centrally sponsored schemes such as Indira Awas Yojana. Similarly, the tribal communities of Gaddis, Bakkarwals and Gujjars don’t get facilities and rights as enjoyed by their counterparts in tribal communities across India. This explains why the members of these communities, despite the majority of them being Muslims are supporting and celebrating the end of Article 370.
Another law passed by the Kashmiri-majority Assembly barred local women from marrying a man from outside the state. (Strangely enough, elections are held only on 87 Assembly seats in a House of 111 members; 24 seats are left vacant in the name of Pakistan Occupied Kashmir, while 46 seats are with the Kashmir valley, 37 with Jammu and 4 with Ladakh.) Initially, the law deprived the woman, her spouse and her children from inheriting her parents’ property in the state. It even disqualified her from holding a state government job. However, the state government had to amend the law on the orders of higher courts. The amended law has reinstated her rights as a state-subject, but her children or spouse are still barred from inheriting property; getting higher education in state run institutions; applying for state government jobs; or even contesting or voting in Assembly and local body elections.
Still sadder fate is reserved for the descendants of those Gorkha soldiers who served the Maharaja’s government before the state’s accession to India in 1947. Despite having settled in J&K since five or more generations, they enjoy only those benefits and rights as entitled to other Indian citizens but are not those entitled only to “state subjects”.
The case of West Pakistan refugees, who lived along Jammu’s borders with Pakistani Punjab and found it safer to cross over to adjoining Jammu—during the communal carnage of the 1947 partition—than to Punjab, is no better either. Despite having lived in the state for four generations, none of them or their descendants is entitled to be a “Permanent Resident”. Their number today is far above 2 lakh. The state laws don’t permit them even to repair the custodian houses many of them have been living in for 72 years. But the laws make them pay the rents of these houses. Like the Gurkhas, they too can contest and vote in the Lok Sabha elections, but they cannot vote in any local body or Assembly elections.
However, the worst case is of those refugees from POK who were forced to leave their homes following the Pakistani attack in November 1947 after J&K had already accessed to India. As per some estimates the number of these POK refugees in 1947 was over 225,000, but their current population is somewhere around 15 lakh. While a section of this community settled in J&K, a majority among them either migrated on their own or were forced out by the unfriendly conditions created deliberately by the state government to fend for themselves in other states.
“The worst part of our story is that neither the state government nor the Central government is willing to acknowledge us as ‘refugees’ or even as children of the state. We expect the Centre to at least create a ‘National Register of People from POK’. This register will be a potential legal tool in the hands of Government of India while dealing with Pakistan directly or in an international court over its entitlement to POK,” says Om Dutta whose family migrated from Muzaffarabad in 1947.
But the irony of the story is that the Kashmiri leaders draw power as the “majority” in the state Assembly on the strength of keeping 24 POK seats vacant in the Assembly. But they refuse to even acknowledge the POK refugees as their own citizens. Adding insult to this injury, the J&K Assembly passed a law in 1981 which gives full citizen-rights to those J&K Muslims who had migrated to Pakistan in 1947. It has even accorded “state subject” status to those Muslim refugees from East Turkistan and Tibet who had migrated to Kashmir in 1949 and 1959, respectively, following occupation of these two countries by China.
Vijay Kranti is a senior journalist and Chairman, Centre for Himalayan Asia Studies and Engagement, N. Delhi.