After Article 370 Move, Airbrushing Sheikh Abdullah Is the Centre’s New Agenda

Every Indian who values Kashmir as a part of the country owes him a debt of gratitude.

The great Czech writer Milan Kundera starts his novel, The Book of Laughter and Forgetting, with a historical anecdote: In 1948, Comrade Clementis gave his hat to communist leader Klement Gottwald, who was standing bareheaded in the snow, making a speech. Four years later, Clementis was charged with treason and hanged. The propaganda machinery immediately airbrushed him out of the photographs, not to speak of history! Ever since, Gottwald has stood alone in the snow. Where Clementis once stood, there is a bare wall. All that remains of Clementis in the photograph is the hat on Gottwald’s head!

In 2020, Sher-i-Kashmir, Sheikh Mohammed Abdullah, is being airbrushed; not from the photographs just yet but from the history of Kashmir. The one whose hagiography was once the definitive political history of Kashmir, may soon struggle to find his name in the new official history.

To start with, his birth anniversary is not to be found in this year’s list of official holidays. The police gallantry medals are no longer inscribed with his commemorative epithet. The iconic SKICC has dropped the prefix to become Kashmir International Convention Complex. The Sher-i-Kashmir Institute of Medical Sciences, SKIMS, too may lose its prefix soon.

Yet the many hats that Sheikh Abdullah wore – that of an anti-feudal revolutionary in 1931, the pragmatic secularist in 1936, the emotional communist in 1944, the egalitarian head of government in 1948, the ethnic nationalist of 1952, or the giant with feet of clay in 1975 — will remain! It is not possible to erase him from history. Hence an attempt is being made to erase him from the collective memory of Kashmiris.

This is akin to “damnatio memoriae”– the ultimate punishment Romans gave to the condemned by scratching their name from the inscriptions. The fate of being forgotten was considered worse than execution.

Also read: Will Farooq Abdullah Speak at This Parliament Session? Here’s What A.S. Dulat Says

For the last three decades, Sheikh Abdullah’s grave is guarded for the fear of desecration. His “cardinal sin”: he threw the lot of Kashmiris with India. The sui generis terms on which he did so, recently reneged, are now matters of irrelevant archival detail.

This one “political sin” has overshadowed his enormous contributions. He transformed the life of every single Kashmiri; be it by spearheading the anti-feudal movement or by redistributing land to the tiller along with debt waiver on a scale that has no parallels in the democratic world.

Every Indian who values Kashmir as a part of the country owes him a debt of gratitude. It was because of him that Kashmir was the only place in the subcontinent where ideology and conviction overruled religion as the consideration for accession.

Indeed, if the Bharatiya Janata Party could do away with the constitution of Jammu and Kashmir, it was only because, in 1975, Sheikh Abdullah consented to surrender the powers of the J&K legislature to amend its constitution. He oversaw the castration of the J&K constitution that he had earlier envisioned.

When the erstwhile prime minister of J&K accepted to being the chief minister of J&K, it was more than just a personal comedown. He effectively ratified the hollowing out of Article 370 that had been done while he was incarcerated. The Indira-Abdullah accord notwithstanding.

The aggressive flag hoisting in Lal Chowk by BJP leaders in the early 1990s and the assertive flag ceremonies in every nook and corner of the state since have been possible because he grafted the national flag in the constitution of J&K. Speaking in the state’s constituent assembly in 1952, it was Sheikh Abdullah who accorded primacy to the national flag. In the process, he made the flag of J&K, which has now been relinquished, subservient.

Forty years later in a hugely symbolic gesture, he carried the national flag to his grave; his body was draped in the tricolour. He may have been born and bred as a Kashmiri ethno-nationalist but he surely died an Indian.

Why then does the BJP want him erased from memory? If anything they should strengthen his legacy; not his biological or even his political legacy, but surely his ideological one.

Also read: ‘Kashmiris Don’t Want to Die Cheaply’ Says Former RAW Chief on Absence of Mass Protest

Admittedly, ascribing the salvation of Kashmir to Abdullah did lead to a sense of entitlement in his party and progeny. In this dynastic, if not a demagogical context, the names of institutions, roads or parks did reflect an element of absorption with the self. But there is more to it. Much more, in fact.

A place or an institution named after Sheikh Abdullah is a genuine tribute to the person who initiated the freedom struggle of Kashmir. These are expressions that promote a distinctive national consciousness which in turn helps nation-building. It is a re-dedication by the “nation” that was formed on the foundation laid by him. To erase this that is to distort history.

The fact is that over time these names, SKICC, SKIMS, etc have come to become symbolic elements of landscape and reflect civil sensibilities, social sentiments, and real-life associations. Just like in many other cases.

For instance, the alma mater of most Kashmiris, even after 70 years of democracy bears the names of the Dogra Maharajas; be it Sri Pratap College or Amar Singh College. So does the biggest hospital, SMHS. And the main trading hub, Hari Singh High Street. To be sure, every one of them is based on the dynastic glorification of rulers furthering their personal legacy. None of these have been or are being obliterated.

It is obvious that there is a well thought out plan to make changes selectively to only a part of the inherited past of Kashmir. That too by a regime that neither has a democratic mandate nor does it have popular legitimacy. Indeed, even its legal legitimacy is under question in the Supreme Court!

Changing the name of a place or an institution or an award is not a simple disassociation. Nor is it a routine administrative decision. A political name is being erased for ideological reasons. Indeed, it goes far beyond the individual as also the immediate.

Such changes have a much larger agenda: snap every day’s historical connection so as to erase the memory of the past. The toponymic changes are used as a tool to disrupt the ethnocultural continuity of Kashmiris which is the core of historical identity.

In reality, it is an assault that will, in the long run, prove to be more debilitating and damaging than abolishing the compromised constitutional provisions.

Also read: ‘I Am Free’ Says Farooq After PSA Detention is Revoked, Asks for Release of Others

How can a democratic society grow so hostile to the past of its constituent part? That too a past which saw and sealed the future of Kashmir with India. While Kashmir did become a part of a large entity in 1948, it in no way meant that its own past had to be subsumed in a larger past. The past can’t be rewritten to align with the ideological predilections of the present. This sort of thing is normally associated with tyranny.

This is especially so when alongside erasing of one set of names, is the process of new naming. The Chenani-Nashri tunnel has been named as Syama Prasad Mookerjee tunnel. The city chowk of Jammu has become Bharat Mata Chowk. Another intersection has been renamed Atal Chowk. A proposal is afoot for the Jammu Airport to become Maharaja Hari Singh Airport and the Jammu University to be renamed as Maharaja Gulab Singh University.

To be fair, this renaming is understandable. The BJP is, arguably, setting the record straight. It will be rationalised as the restoration of parts of history that have been purposely or conveniently excluded so far by the earlier regimes. It is epochalism being expressed through place-names to reflect the new Indian politics in its political ideology, behavioural values and, of course, historical figures. While restoring “their” great men in the new narratives of India, throwing the stalwarts of Kashmir’s political history down Orwell’s memory hole is unacceptable.

It is ironic that in the 1950s, Sheikh Abdullah’s person was under assault even as his ideology thrived. Since the 1990s, both his person and his ideology have been under attack. Now, his memory is. All, mind you, from very different and diametrically opposite quarters.

Poets are not prophets but oftentimes are prophetic. Aga Shahid Ali, Kashmir’s very own poet, prophesied, “My memory is again in the way of your history”. Indeed, it is and how!

This piece first appeared in Greater Kashmir and has been republished with the permission of the author.

Won’t Contest Elections Until J&K’s Statehood Is Restored, Says NC MP

Mohammed Akbar Lone’s statement comes after he met detained leaders Farooq and Omar Abdullah but it is not clear if this is his personal view or the official stand of the party.

Srinagar: A senior National Conference leader has said the party will not take part in any electoral politics until the Government of India restores Jammu and Kashmir’s statehood and special status.

Speaking to reporters on Sunday, party MP from North Kashmir Mahammad Akbar Lone said that the party will devise a strategy with its political opponents to fight for the restoration of the state’s special position in the Union of India.

The statement comes two days after Lone and another National Conference MP Hasnain Masoodi met detained party leaders Farooq Abdullah and Omar Abdullah in Srinagar.

While Omar, the National Conference’s vice-president, is in solitary confinement at the Hari Niwas palace for the past 42 days, the senior Abdullah, who is the party’s president and incumbent Srinagar MP, is under house arrest at his Gupkar residence.

Lone’s statement is the first from the National Conference about the party’s future strategy after New Delhi on August 5 read down Article 370 – a constitutional provision that gave J&K a special status – but it is not clear if this is personal view or the formal stand of the NC.

“The Modi government will have to pay a heavy price for this (revocation of Article 370),” Lone said, talking to a group of journalists at his residence.

Also Read: ‘Urgent, Disturbing’: PIL in SC on Kashmir Children ‘Illegally Detained, Maimed’

He said the Centre “wrongly thinks” that by removing Article 370, it has resolved the Kashmir issue. “They are mistaken. Kashmiris are fortunate that the government took this step. They (the Government of India) have injected fresh life into this (Kashmir) movement. The Kashmir issue is again being discussed at the international level,” said Lone. “The Centre will see the fallout of its decision in the years to come.”

Lone believes there was “already no love lost in the hearts of Kashmiris for India”. “By taking this arrogant step, it has thrown the Kashmiris out and led to more hatred among people against India,” said Lone, the former speaker of J&K legislative assembly and a former minister.

Meetings with the Abdullahs

Lone and Hasnain met the senior Abdullah on Thursday after the Jammu and Kashmir high court’s direction to the state government to allow the party members to meet the father-son duo. The meeting lasted for one hour, said Lone.

The next day, the two MPs again met Abdullah for one hour before meeting Omar. Because the high court had barred them from divulging details of their meeting to the press, Lone refused to say what was discussed with the Abdullahs.

But he said his leaders were “dejected”, adding that all of Kashmir felt the same way. “What did they (India) do to us? They snatched our identity,” said Lone recalling the moment when Union home minister Amit Shah tabled the two Bills in parliament to read down Article 370 and divide the state into two Union Territories.

Omar Abdullah and Farooq Abdullah. Photo: PTI

“It was like both of my kidneys were plucked out from my body,” said Lone. “Along with some 60 MPs from other parties, we kept protesting against the move in the well of the house, but nobody listened to us.”

To a question about the National Conference’s plans for the upcoming assembly elections, Lone said, “We will contest any election only after J&K’s statehood is restored. It is a pre-condition. If the statehood is not restored, the elections will get reduced to issues such as constructing drainage systems and lanes.”

He said the party’s leaders and cadres felt a “sense of betrayal” after J&K was stripped of its identity. “We have given our blood to keep democracy alive in the state. See what we’ve got in return,” he said. Once the senior leaders are released, the National Conference will devise a strategy to fight for the restoration of J&K’s statehood, he said.

“It might be a long-drawn battle for the restoration of Article 370,” said Lone.

The National Conference leader blamed the Mehbooba Mufti-led Peoples Democratic Party (PDP) for allowing the BJP to enter J&K. “It allowed them (the BJP) to plan their designs,” said Lone.

Lone said the Government of India mat “try to create new political parties” in Kashmir. “They created Ikhwanis (counter-insurgents) in the 90s, who then contested elections. They made Shah Faesal’s party (Jammu and Kashmir Peoples’ Movement). There is now a new party (Jammu and Kashmir Political Movement-I). Don’t know what this party is up to now,” said Lone.

On September 9, a group of five Kashmiris addressed media at the Srinagar media facilitation centre – set up by the government for journalists, amid the internet blockade. The group – led by its president Shahid Khan – claimed to have floated a new party, Jammu and Kashmir Political Movement (I). However, nobody in Kashmir seems to be aware of the group’s political agenda or leanings.

Also Read: Ground Report: Kashmir’s Blackout Is Triggering a New Wave of Mental Health Issues

“They (the Government of India) can go to any extent to create new parties here. But how long will these parties last. This won’t serve the purpose,” said Lone.

Lone compared the arrest of Abdullahs with the arrest of the former prime minister of J&K, Sheikh Abdullah, in 1953. Sheikh was dismissed on August 9, 1953 and put in prison for 11 years.

“That time an elected government was suspended and today elected leaders have been jailed,” said Lone. “By arresting political leaders, the Government of India is telling us that they don’t care what people want,” said Lone. “The Modi government doesn’t give a damn about what people think. Both Modi and his disciple (Amit) Shah are arrogant.”

‘Kashmir has reacted maturely’

The MP believes that people in Kashmir have acted “maturely” by not resorting to protests or violence against the dilution of Article 370. “People are silent. It is maturity on their part. The security forces would have trampled them with bullets,” Lone said.

He said almost all areas in Kashmir have seen an increased presence of security forces since Article 370 was read down. “Show me one place where you will not find army, police, BSF and other forces,” said Lone.

Members of the security forces patrol a deserted road in Srinagar. Photo: Reuters/Danish Ismail

But, he said, the Government of India cannot “keep people of Kashmir silent for long”. “Let them remove the forces and they will see the people’s response,” said Lone.

The National Conference MP also questioned the silence of the Hurriyat leadership on the Centre’s move, saying it equally affects the mainstream and separatist camps.

“The separatists are also Kashmiris. They should have planned an agenda against the stripping of J&K’s special status,” said Lone. “But they remained silent. This article is not just a mainstream issue. It is an issue which concerns them also. They can talk about ‘azaadi‘ only when there is Article 370,” said Lone.

While separatist leaders Syed Ali Shah Geelani and Mirwaiz Umar Farooq are under house arrest, Yasin Malik has been imprisoned in the Tihar jail in New Delhi. Since August 5, the Hurriyat has not issued any statement to the media against the dilution of Article 370.

Rights Group Condemns FIRs Filed Against Gandhi Peace Foundation President

Two FIRs were filed against Kumar Prashant for ‘spreading falsehoods’ about the RSS’s role in the freedom struggle.

New Delhi: Two FIRs have been filed against Gandhi Peace Foundation president Kumar Prashant for allegedly spreading lies about the RSS and its icons. Rights groups have protested the action, saying “historical controversies cannot be resolved or put to rest in courts of law”.

Between August 15 and August 23, Prashant travelled to various parts of Odisha for a programme called Gandhi Katha, a narration of historical events during the Gandhian era. He said a “section of people” did not like his presentation, and though they did not disrupt the event, filed two FIRs against him in Cuttack and Kandhamal on August 21. The complaints were filed by members of the RSS.

“Their FIR suggested that I am spreading baseless facts in the name of History, tarnishing the image of their heroes. They alleged that I’m hurting their sentiments. And that my talks were anti-national in light of events in Kashmir. And that I should be arrested immediately for inciting the people of Kashmir,” Prashant said in a statement.

According to the Leaflet, the RSS’s objected to Kumar’s statement that the organisation “played no role in India’s freedom struggle and that Savarkar had actually collaborated with the British to get out of the Cellular jail in Andaman”.

Prashant also described the dilution of Article 370 as an ‘undemocratic’ measure as the move was implemented without the consent of the people of Jammu and Kashmir. On August 18, the Gandhi Peace Foundation released a statement condemning the Centre’s actions. “Even during the Emergency, the Lok Sabha was not humiliated in this manner – the Opposition then ensured that. This time our democracy has plunged to a new low,” the statement read.

Speaking about the FIRs, the Gandhi Peace Foundation’s president said, “Only those who do not have faith in the truth, look for the state support to stop it.” He said the people who did not agree with his presentation could have debated him on these events, instead of filing a complaint.

Prashant said the FIRs are a “very futile attempt” to intimidate him. “On the contrary, I appeal to everyone that I am willing to have healthy discussions based on facts that prove me wrong,” he said.

“I would like to remind my friends of the other side that it is nothing but a sin to poison the minds of innocent youths completely unaware of historical facts and lies. In fact, we actively bring them under our influence to spread lies and hatred. It’s an unholy act of ours,” his statement says.

Also Read: History Shows How Patriotic the RSS Really Is

According to the Leaflet, the FIRs say, “Gandhi Peace Foundation chief Kumar Prashant has sown the seeds of discord by denigrating ‘Veer Savarkar’ whose portrait adorns the Central Hall of Parliament and describing Udham Singh, who laid down his life for the country, as a ‘criminal’.” Both the FIRs filed against him are identical.

On August 31, the People’s Alliance for Democracy and Secularism issued a statement calling the FIRs filed against Prashant as an attempt to “police public opinion by threats”. “It is an example of the totalitarian habit of mind of the RSS. On this matter we are in solidarity with Kumar Prashant,” it said.

“Instead of proving Kumar Prashant wrong by publishing or speaking their refutation of his views, the RSS have (sic) taken recourse to court,” the statement said. The statement said the role of the RSS, Hindu Mahasabha and Muslim League during the country’s independence movement is “well documented and is still being debated”.

“Historical controversies cannot be resolved or put to rest in courts of law. They are academic and political matters. The RSS leadership, must be well aware of this fact but it has chosen to take recourse to intimidation and threats to suppress a democratically expressed opinion by Kumar Prashant,” it said.

The group also asked the Naveen Patnaik government to intervene and prevent the Odisha police from taking any “unlawful action” against Prashant.

Is the Division of J&K Unconstitutional? Here’s What a Petition in SC Says

The petition challenging the Centre’s decisions was filed by retired bureaucrats and defence personnel.

New Delhi: The petition filed in the Supreme Court by six prominent citizens challenging the constitutional validity of the president’s amendments to Article 370 and the J&K Reorganisation Bill has claimed that these orders were “unconstitutional, violative of the basic structure of the Constitution and violative of fundamental rights”.

The petition has been filed by retired bureaucrats and defence personnel who have been associated with Jammu and Kashmir or served there. The first petitioner is academic and political analyst Radha Kumar, who was also a member of the home ministry’s group of interlocutors for Jammu and Kashmir in 2010-11.

Also Read: In Photos: Kashmir Under Lockdown

The other petitioners are former J&K chief secretary Hindal Haidar Tyabji; Air Vice Marshal (Retired) Kapil Kak, who is a permanent resident of J&K; Major General (Retired) Ashok Kumar Mehta, who served in the state for many years; IAS officer Amitabha Pande, who retired in 2008 as the secretary of the Inter State Council of the Government of India; and former Union home secretary Gopal Pillai, who dealt closely with issues relating to Jammu and Kashmir.

The petition has listed several reasons why the petitioners believe the reading down of Article 370 and the reorganisation of the state were bad in law.

Supreme Court. Photo: PTI

It states that Article 370(3) prescribes the conditions under which Article 370 would cease to operate. It says that Article 370 can cease to operate only on the recommendation of the Constituent Assembly of the state and thereafter a public declaration by the president.

However, the petition charged, “there has been no such recommendation by the Constituent Assembly before such a declaration was made by the President of India.”

‘A colourable exercise of power’

Referring to the Presidential Order G.S.R. 1223(E), through which an amendment has been made to Article 367 of the Constitution of India by which the reference to the expression “Constituent Assembly of the State” has been read as “Legislative Assembly of the State”, the petition stated that this “amendment is a colorable exercise of power.”

It has claimed that the amendment “seeks to achieve indirectly what cannot be achieved directly. It seeks to force an interpretation of Article 370(3) which would not be possible on a plain reading of the terms of the Article 370(3) of the Constitution of India. At present, there is no Constituent Assembly which is in existence and hence a fundamental condition for the effectuation/invocation of Article 370(3) is absent.”

Also Read: For Kashmir, ‘Normalcy’ is a Word That Needs to be Abrogated

The petition also points out that “the Legislative Assembly of Jammu and Kashmir does not have the power to alter the State’s relationship with India on account of Article 147 of the Constitution of Jammu & Kashmir.”

It has also stated that this act would undermine the very basis on which the (erstwhile) state of Jammu & Kashmir was integrated into India. “Both the Instrument of Accession as also Article 370 envisage a special autonomous status of the State of Jammu & Kashmir which could only be changed upon a recommendation of the Constituent Assembly.”

‘Action violates principle of democracy, federalism’

“The present action,” the petition noted, “which has been effectuated without ascertaining the will of the people either through its elected Government or legislature or public means such as referenda, violates the basic principle of democracy, federalism, and fundamental rights.”

It adds that “the unconstitutionality of the said act is further exacerbated by the fact that this declaration had been made with the concurrence of the Governor at a time when the State of Jammu & Kashmir was under President’s rule.”

The petition notes that the object of transfer of power of the state legislature to the parliament under state of emergency under Article 356 was of a purely temporary nature has been “completely overlooked” and “such a power could not have been used to change the very nature of the state/federal unit and to denude the power of the State Legislature itself.”

On the reorganisation of the erstwhile state and downgrading its status to that of two Union Territories, the petition said, “even this power could not have been exercised without the consent of the erstwhile State of Jammu & Kashmir.”

Giving reasons for this, it states that “the erstwhile state of Jammu & Kashmir was markedly different from that of other States. In the case of other states, only the views of their legislatures are ascertained by the President before recommending the introduction of a Bill relating to reorganisation of the areas of the state.  But in the case of Jammu & Kashmir, no such Bill can be introduced in the Parliament unless the State Legislature consents to the same.”

A view of the Jammu and Kashmir Legislative Complex. Credit: PTI

A view of the Jammu and Kashmir Legislative Complex. Credit: PTI

‘Unprecedented unconstitutionality’

Stating that “the unconstitutionality of the act is unprecedented,” the petition charges that “by way of an amendment in Article 367, conditions have been sought to be read into Article 370(3) which has the effect of completely nullifying the effect of Article 370 and superseding the Constitution of Jammu & Kashmir.”

The petition also notes that the follow-up action of reorganising the state was accompanied by a complete lockdown. This, it said, gave “no scope to the people of Jammu & Kashmir to have any say in the entire exercise.”

Therefore, this action “jeopardises and strikes at the very root of the integration of the erstwhile State of Jammu & Kashmir into India.”

Petition traced history of Jammu and Kashmir

The petition also traced the important dates and events in the history of Jammu and Kashmir, from 1846 – when the Treaty of Amritsar was signed between the East India Company (British Government) and Dogra ruler Maharaja Gulab Singh, whereby the independent possession of the Jammu & Kashmir region was transferred to the Maharaja and the heirs male of his body – till early August 2019, when the declaration was issued by the president under Article 370(3) and he gave assent to the Jammu and Kashmir (Reorganisation) Act, 2019.

The main petition also recorded in detail the events leading to the signing of the Instrument of Accession of India by Raja Hari Singh of Jammu and Kashmir on October 26, 1947.

It noted that “with the lapse of British paramountcy, the princely State of Jammu & Kashmir, like the other Indian States, was theoretically free from the limitations imposed by the said paramountcy.”

While Maharaja Hari Singh was weighing his options, conflict broke out in the state as refugees streamed in from West Pakistan. Poonch region of Jammu was the site of most acute conflict and was virtually taken over by “guerrillas backed by Pakistan”.

Also Read: The Backstory of Article 370: A True Copy of J&K’s Instrument of Accession

On October 22, 1947, tribal raiders from Pakistan, with support from sections of the Pakistan government and led by officers of the Pakistan Army, invaded the territory of the state; and this invasion presented a problem of unprecedented gravity before the Maharaja.

With the progress of the invading raiders, the safety of the state was itself in “grave jeopardy and it appeared that, if the march of the invaders was not successfully resisted, they would soon knock at the doors of Srinagar itself”.

This act of aggression set in motion a chain of political events, and on October 26, 1947, the Maharaja signed an Instrument of Accession with India, the petition says.

Correspondence between Hari Singh and viceroy

The petition also recorded some important correspondence between the Maharaja Hari Singh and the Viceroy of India, Lord Mountbatten during that time.

It stated that on October 26, 1947, Hari Singh wrote to the viceroy:

 “Geographically my State is contiguous to both the dominions. It has vital economic and cultural links with both of them.  Besides my State has common boundary with the Soviet Republic and China.  In their external relations, the Dominions of India and Pakistan cannot ignore this fact…..  I want to take time to decide to which dominion I should accede, whether it is not in the best interest of both the dominions and my State to stand independent, of course, with friendly and cordial relations with both.”

The letter also refers to Pakistan pressuring Jammu and Kashmir to accede, culminating in the communal tribal raids:

“With the conditions obtaining at present in my state and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian dominion.  Naturally they cannot send the help asked for by me without my State acceding to the dominion of India.  I have, accordingly decided to do so and I attach the Instrument of Accession for acceptance by your government.  The other alternative is to leave my state and my people to free booters.”

In his reply, dated October 27, 1947, Lord Mountbatten wrote:

“In the special circumstances mentioned by Your Highness, my Government have decided to accept the accession of Kashmir State to (the) dominion of India.  Consistently with their policy that, in the case of any state where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the state’s accession should be settled by reference to the people.”

Maharaja Hari Singh of Kashmir, who signed the Instrument of Accession that made Kashmir a part of India. Kashmir has been under AFSPA for several years. Credit: Wikimedia Commons.

Nehru’s letter

The petition also referenced a letter sent by then Prime Minister Jawaharlal Nehru to Sheikh Abdullah on May 17, 1948 “with the concurrence of Vallabh Bhai Patel and N. Gopalaswamy Ayyangar”. It stated:

“It has been settled policy of Government of India, which on many occasions has been stated both by Sardar Patel and me, that the constitution of Jammu & Kashmir is a matter for determination by the people of the state represented in a constituent assembly convened for the purpose.”

The petition sought the apex court’s urgent intervention under Article 32 in the matter. It said the petitioners are “personally concerned as citizens of India about the sanctity of the federal, secular and plural nature of India’s Constitution which has been put at risk by the impugned orders/actions.”

The petition also claimed that “Article 370, that accords special status to the erstwhile State of Jammu & Kashmir, has been unilaterally and arbitrarily nullified without any consultation with the people/residents of the State or their elected representatives” and thus challenged the Presidential Orders issued on August 5 and 6 respectively and the J&K Reorganisation Act 2019 to be “illegal and unconstitutional”.

Kashmiri Pandits, Dogras and Sikhs Sign Petition Condemning Abrogation of Article 370

The 64 signatories said that the decision was made in stealth and using coercive means, calling it “unconstitutional and in violation of the historical promises” made to the people of J&K.

New Delhi: A petition signed by 64 citizens of India from Jammu and Kashmir said they believe “abrogation of Article 370, made in stealth and using coercive means” is “unconstitutional and in violation of the historical promises” made to the people of the state.

The signatories of the petition include professionals from all spheres of life such as an eminent doctor, a Vice Air Marshal, theatre artists, academics, journalists, students and researchers. Most of the signatories are Kashmiri Pandits, Dogras and Sikhs belonging to the state.

In the letter, they say that the “clandestine manner” in which the Centre proceeded to revoke J&K’s special status and reorganise it into two Union Territories, “in complete exclusion of the opinion & consent” of the state’s legislative assembly amounts to an “authoritarian & undemocratic rejection of all norms of democracy”.

“We reiterate the fact that, we the people of Jammu and Kashmir were not consulted and no decision about our future, taken without our consent can be termed as legitimate. We condemn and reject this unilateral, undemocratic and unconstitutional imposition on us,” the signatories say.

Also Read: Why Revoking Special Status Is the Final Betrayal of Kashmir

Calling for an immediate lifting of the “state of siege on Jammu & Kashmir”, the petition says the communication gag on the people of the state to be revoked, while also calling for all political representatives to be freed from “arbitrary and illegal detention”.

The petition concludes by saying:

“We are pained at the division of our homeland and we pledge that we stand united in this time of trial and crisis. We will resist any attempt made to divide us on ethnic, cultural and communal lines.”

The petition has been reproduced in full below.

§

We, the stateless state-subjects of the, now, erstwhile state of Jammu & Kashmir, unequivocally condemn the abrogation of Article 370.

We take this opportunity to remind the citizens of India that Jammu & Kashmir chose to accede because of the secular & democratic character of the Indian dominion. The state of Jammu & Kashmir was the only princely state which negotiated the terms of its accession during the proceedings of the Constituent Assembly of India in 1949, consequent to which the Article 370 came into existence without any opposition.

Therefore we consider this move of abrogation of Article 370, made in stealth and using coercive means, to be unconstitutional and in violation of the historical promises made to the peoples’ of Jammu & Kashmir by the Union of India. The clandestine manner in which the Government of India proceeded in the matter, in complete exclusion of the opinion & consent of the Legislative Assembly of the J&K amounts to an authoritarian & undemocratic rejection of all norms of democracy.

We reiterate the fact that, we the people of Jammu & Kashmir were not consulted and no decision about our future, taken without our consent can be termed as legitimate.
We condemn and reject this unilateral, undemocratic and unconstitutional imposition on us.

We call for an immediate lifting of the state of siege on Jammu & Kashmir. We demand immediate revocation of communication gag on the people of J&K. We also call for all political representatives to be freed from arbitrary and illegal detention.

We are pained at the division of our homeland and we pledge that we stand united in this time of trial and crisis. We will resist any attempt made to divide us on ethnic, cultural and communal lines.

Signatures:
Rabinder Singh, Assistant Professor;
Air vice marshal (retd) Kapil Kak;
Upendra Kaul(U Kaul), Doctor, Cardiologist;
Anuradha Bhasin, Executive Editor, Kashmir Times;
M.K. Raina, Theatre and Film Artist
Badri Raina, Professor, Author and Columnist;
Nitasha Kaul, Professor and Author;
Mona Bhan, Associate Professor and Author;
Suvir Kaul, Professor and Author;
Pradeep Magazine, Senior Journalist;
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Article 370: On Day 2, India-China in Diplomatic Spat Over Ladakh

China termed the carving of Ladakh into a separate UT as “unacceptable”, with India implicitly ticking off Beijing for commenting on an “internal matter”.

New Delhi: A day after the Indian government began the process of removing the special status of Jammu and Kashmir, China termed the carving of Ladakh into a separate union territory as “unacceptable”, with India implicitly ticking off Beijing for commenting on an “internal matter”.

The diplomatic spat took place as the Indian parliament’s lower chamber was completing the process of approving the Bill that reconstitutes Ladakh – and Kargil district – into an union territory, without a legislative assembly. The Bill was later passed.

This is also the most serious difference between the two sides since the 2018 informal summit between Prime Minister Narendra Modi and Chinese President Xi Jinping aimed to paper over the schism caused due to the Doklam stand-off. The Chinese president is also scheduled to visit India this year for the second edition of the informal summit.

This latest friction adds further significance to S. Jaishankar’s first trip to Beijing as external affairs minister on August 11.

In a separate statement on Tuesday, foreign ministry spokesperson Hua Chunying gave a strongly-worded response not on Kashmir overall, but specifically related to Ladakh.

Also Read: Lok Sabha Passes J&K Reorganisation Bill, Resolution to Revoke Article 370

“China is always opposed to India’s inclusion of the Chinese territory in the western sector of the China-India boundary into its administrative jurisdiction. This firm and consistent position remains unchanged,” said Hua.

She stated that the reorganisation would directly “impede China’s sovereignty”. “Recently India has continued to undermine China’s territorial sovereignty by unilaterally changing its domestic law. Such practice is unacceptable and will not come into force.”

The Chinese foreign ministry official urged India to “exercise prudence in words and deeds concerning the boundary question” and “strictly abide by relevant agreements concluded between the two sides”.

She also demanded that India should “avoid taking any move that may further complicate the boundary question”.

A few hours later, New Delhi retorted that the Bill passed by parliament “which proposes the formation of a new “Union Territory of Ladakh” is an internal matter concerning the territory of India”.

“India does not comment on the internal affairs of other countries and similarly expects other countries to do likewise,” said MEA spokesperson Raveesh Kumar.

Incidentally, India was one of only two countries, that have consulates in Hong Kong, who didn’t even accept a memorandum from pro-democracy protestors to foreign governments.

“So far as the India-China Boundary Question is concerned, the two sides have agreed to a fair, reasonable and mutually acceptable settlement of the boundary question on the basis of the Political Parameters and Guiding Principles for the Settlement of India-China Boundary Question. Pending such a settlement, both sides have agreed to maintain peace and tranquillity in the border areas on the basis of the relevant agreements,” added Kumar.

Ministry of external affairs spokesperson Raveesh Kumar. Photo: PTI

China’s claims over Ladakh

China has claims over Ladakh due to the continuing dispute over Aksai Chin, which began when Pakistan ceded 5,180 sq. km in 1963. There have been several intrusions in Ladakh by China to the non-demarcation of the Line of Actual Control. The most serious stand-off was in April 2013 when Indian and Chinese troops ‘camped” in front of each other at Daulat Beg Oldi for three weeks.

In August 2017, China had protested when India was constructing a road near the Line of Actual Control in Ladakh.

Earlier during the day, Indian home minister Amit Shah, as he moved a resolution for abrogating some provisions of Article 370 and the Jammu and Kashmir Reorganisation Bill 2019, said that it had been a long-standing demand of Ladakh to be given UT status.

Also Read: How Strong is the Economic Rationale Behind Scrapping Article 35A?

He also added that when he spoke about Jammu and Kashmir, it included all the parts which are with Pakistan and China.

“Kashmir is an integral part of India, there is no doubt over it. When I talk about Jammu and Kashmir, Pakistan occupied Kashmir and Aksai Chin are included in it,” Shah said in Lok Sabha.

The Chinese envoy to India, Sun Weidong were among the ambassadors who were briefed by foreign secretary Vijay Gokhale on Monday after Shah introduced the slew of proposals in Rajya Sabha.

He was told, just like other ambassadors, that the reorganisation of Jammu and Kashmir was an internal issue. Further, India stated that the change in status was “aimed at providing good governance, promoting social justice and ensuring economic development in Jammu and Kashmir”.

Chinese and Indian Army troops. Credit: PTI/Files

Chinese and Indian Army troops. Credit: PTI/Files

Relatively sparse global response

Till now, there has been relatively sparse response from foreign capitals on New Delhi’s move to change the status-quo in Kashmir.

Not surprisingly, Pakistan has been the most vocal opponent abroad.

In Washington, the US state department had asked all the stakeholders to maintain peace and stability at the Line of Control. The spokesperson Morgan Ortagus also expressed concern “about reports of detentions and urge respect for individual rights and discussion with the affected communities”.

The UAE ambassador, Ahmad Al Banna sided with India, stating that the creation of Ladakh and Jammu and Kashmir as two new union territories, was “an internal matter as stipulated by the Indian Constitution”.

Earlier, Sri Lankan Prime Minister Ranil Wickremesinghe had welcomed the formation of Ladakh as the “first Indian state with a Buddhist majority”. “The creation of Ladakh and the consequential restructuring are India’s internal matters. I have visited Ladakh and it is worth a visit,” said Wickremesinghe, who is currently in the midst of furious political activities to decide on the presidential candidate from UNP for elections next year.

As per the 2011 census, Ladakh’s population is 46.4% Muslim, 39.67% Buddhist and 12.11% Hindu.

Kashmir Explainer: From Article 370 to Article 3, Modi-Shah Upend the Constitution

The move has undone seven decades of official policy and taken the country into uncharted legal and political territory.

In a surgical strike on two key elements of the Constitution that define the powers of states of the Indian Union, in general, and the state of Jammu and Kashmir in particular, the Narendra Modi government has undone seven decades of official policy and taken the country into uncharted legal and political territory.

What’s the news?

Against the backdrop of massive troop deployments in J&K, the house arrest of mainstream politicians and the ouster of all tourists and Amarnath yatris from the state, Union home minister Amit Shah announced in the Rajya Sabha at 11 am on Monday that the government had decided to do away with J&K’s special constitutional status. This has been a longstanding promise of the Bharatiya Janata Party.

Also surprising, as the BJP has never spoken of it before, Shah introduced a Bill to essentially abolish Jammu and Kashmir as a state of the Indian Union and replace it with two separate Union Territories — the UT of Jammu and Kashmir and the UT of Ladakh.

“The Union Territory of Ladakh will be without legislature,” Amit Shah said. “Further, keeping in view the prevailing internal security situation fueled by cross-border terrorism in the existing state of Jammu and Kashmir, a separate Union Territory of Jammu and Kashmir is being created. The Union Territory of Jammu and Kashmir will be with legislature.”

Amid protests in the house, Shah said President Ram Nath Kovind had issued a presidential order, exercising his power under Clause 1 of Article 370, to make all provisions of the Constitution effectively applicable to J&K. Earlier, only those provisions with which the J&K government concurred would be applicable.

Presidential Order on Jammu and Kashmir and Article 370

Rather than abrogating or repealing Article 370, the government has essentially read down its provisions and used the legal fiction of the governor – who is a Central appointee – being the ‘state government’ to justify the president’s order.

Is this legal?

It appears, on the face of things, that both the reading down of Article 370 and the bifurcation of the state and the demotion of both parts to Union Territory status cannot be done in the manner Shah and the government hope to do it.

Article 3 of the Constitution says that before parliament can consider a Bill that diminishes the area of a state or changes its name, the Bill must be “referred by the President to the Legislature of that State for expressing its views thereon”.

This is an essential safeguard of India’s federal system and has clearly not been followed in this case. In parliament, Shah invoked the legal fiction that since the J&K assembly was dissolved and the state is under Central rule, it is parliament which gets to exercise the prerogatives of the assembly.

If the Modi government gets away with this logic, then any state of the Indian Union can be done away with in similar fashion. It is shocking that parties like the Aam Aadmi Party, Biju Janata Dal, Telangana Rashtra Samithi and YSR Congress have backed this move despite being strong supporters of federalism.

As for Article 370, before analysing its significance for Jammu and Kashmir, let us consider the stated provisions for its abrogation or dilution: Article 370 (3) clearly says:

“the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State … shall be necessary before the President issues such a notification. (emphasis added)”

The presidential order purports to amend an unrelated article of the constitution (Article 367) by adding a new clause which, inter alia, redefines the constituent assembly of the state as its legislative assembly. While the legality of this move is also questionable – there are Supreme Court judgments which have ruled that the dissolution of the constituent assembly effectively means Article 370 cannot be touched – at the very least the state’s assembly would have to back the move, which it hasn’t.

Home minister Amit Shah outside parliament on Monday. Image: PTI

What does this mean politically?

Prime Minister Modi is turning the Valley of Kashmir into a Union Territory which will be ruled directly from Delhi. But in case you weren’t paying attention, the Valley of Kashmir has already been directly ruled from Delhi for more than a year – a de facto UT. And by Modi, indirectly, since 2015, when the BJP entered into an alliance with the Peoples Democratic Party that year. (The PDP is run by one of the three families that Amit Shah told parliament are responsible for all the corruption in Kashmir.)

In the time that Modi has been prime minister, he has presided over a deteriorating political and security situation in the state.

More soldiers and paramilitary jawans are getting killed today in militant attacks than before. Here’s what the government told parliament earlier this year:

In 2014, the total number of terrorist incidents in the state was 222. In 2018, the number was 614.
In 2014, the total number of security personnel killed was 47, Last year, it was 91.
In 2014, 28 civilians were killed in terrorist incidents. In 2018, it was 38.

Remember, when it comes to security, the Centre calls all the shots, whether there is an elected state government or not. Any improvement or deterioration in the security situation is a function of New Delhi’s handling.

It is against the backdrop of these unflattering numbers in Kashmir that Modi is gambling over something as fundamental as Article 370 and Jammu and Kashmir’s very status as a state.

Why is Article 370 crucial?

Article 370 has its origins in the Instrument of Accession which Maharaja Hari Singh signed to join the Indian Union in 1947. The Article gives J&K a unique status because these were the terms on which it acceded to India.

The details need not detain us but two aspects are noteworthy: India agreed to J&K’s demand that the national parliament would have primary responsibility for defence, external affairs and communications, but that any other laws would need the concurrence of the state to be applicable.

Second, under Article 7, the instrument of accession made clear that this did not amount to accepting any future constitution of India nor did it “fetter” the state’s right to enter into “arrangements” over any future constitution.

Although Amit Shah was right to say Kashmir joined India not thanks to Article 370 but because of the Instrument of Accession, what he did not mention was these sections of the accession document to which India remains formally committed.

The article has been undermined and weakened over the years, Manoj Joshi explains in his article, ‘A Constitutional Coup’, but “however hollow, it remained a symbol of Kashmir’s uniqueness to the Indian scheme of things.”

“The demotion of the status of the state is an egregious insult. Far from upholding the state as a unique one in the Indian system, one that was once run by its own prime minister, it has been reduced to the status of a half-state, run by a Lt Governor… By its actions, the government is force-feeding what it believes is bitter medicine to the Kashmiris, and the chances are that its impact will last generations.”

Is Article 370 a temporary provision?

Despite several challenges to the provision on account of it allegedly being a temporary provision, courts have upheld that Article 370 is a permanent provision of the constitution. In a 2018 judgment, the Supreme Court said that although the article’s title noted it as ‘temporary’, it was very much of a permanent nature.

What are other political parties saying?

Responding to the morning’s proceedings, former J&K chief minister and PDP leader Mehbooba Mufti said this was the “darkest day in Indian democracy”.

National Conference leader Omar Abdullah also said that the decision was a “total betrayal of the trust of people of J&K” and will have “dire consequences”.

Congress leader Ghulam Nabi Azad said that the BJP has “murdered” the Constitution and India’s democracy. The Janata Dal (United), a BJP ally, also said it did not want Article 370 revoked and did not support the government. JD(U) MPs walked out of the house to express their dissent.

The Bahujan Samaj Party will support all of the the government’s resolutions, party MP Satish Chandra Mishra said. The Biju Janata Dal, which claims to follow an equidistant policy with respect to both the national parties, also supports the government resolutions. Prasanna Acharya, BJD MP, said that since “Bharat Mata is supreme for us, we support the resolution”. He also said that no one bothered about the plight of Kashmiri Pandits all this while, and his party is happy that all Kashmiris will get their due following the resolution.

The YSR Congress Party also supported the resolution, as did the Aam Aadmi Party.

What does this mean for Kashmir?

The Centre’s fresh deployment of nearly 40,000 troops on the ground ahead of this announcement indicates that widespread protest is expected in the Valley. Party leader Shah Faesal told Arfa Khanum Sherwani in this interview, “If Article 370 is repealed, India’s relationship with Kashmir will also end.”

Jammu and Kashmir is among one of the most militarised regions in the world at this moment. For the first time since 2008, the number of people who died due to conflict breached the 500 ceiling. The number of listed militants with government agencies crossed 300 – the highest in a decade. In 2013, the  year before Narendra Modi was elected to power, the number was just 78.

Army soldier take position behind trees during a gun battle between security forces and militants in Shopian, of South Kashmir on Sunday. Photo: PTI/S. Irfan/File

In his article If the Past Year in Kashmir is Any Indication, Delhi Must Brace Itself for Worse in 2019, Shakir Mir wrote that while this list might read like a prosaic account of the worsening scenario in Kashmir, it points to a new, bleaker era of conflict that threatens to spiral beyond control.

He said, “The political situation in the Valley has deteriorated irretrievably, and given how the Indian state has dealt with the resulting turmoil, Kashmir is destined to have another bloody year. A clear reading of 2018 will demonstrate that layer upon layer of resentment and anguish has piled up and that public sentiment is now nearly implacable.”

Azaan Javaid, in his article Militant Recruitment Data in 2018 Is Telling of the Centre’s Failed Strategies in J&K notes that 2018’s recruitment numbers are the highest in over a decade – despite the massive crackdown on insurgent networks. Separatists have already been protesting any electoral participation with India, with much of the Valley abstaining from the vote in this year’s General Election.

As Ghazala Wahab says in her article, The Army Has Bared Its Iron Fist in Kashmir – and Wants Everyone to Know It, “The truth is, in the last 20 years, the situation in Kashmir has never been as bad as it is today. Forget about talking to Pakistan, the government has no opening with the local people either.

Mainstream politicians have been discredited; and the separatists branded as criminals. Reaching out to the people of Kashmir is an empty slogan, because you don’t talk or negotiate with people, you do so with the representatives of the people. And who represents the people of Kashmir today?

The brutal answer is, nobody has a clue.”

J&K High Court Says Article 370 is Permanent, Can’t Be Abrogated

Leh. Credit: leftvegdrunk/Flickr, CC BY 2.0

Looking down to Leh. Credit: leftvegdrunk/Flickr, CC BY 2.0

Srinagar: The Jammu and Kashmir High Court has ruled that Article 370, granting special status to the state, has assumed a place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation.

The court also said that Article 35A gives “protection” to existing laws in force in the state.

“Article 370 though titled a ‘Temporary Provision’ and included in Para XXI titled ‘Temporary, Transitional and Special Provisions’ has assumed [a] place of permanence in the Constitution,” a division bench of Justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgment.

“It is beyond amendment, repeal or abrogation, in as much as the Constituent Assembly of the state before its dissolution did not recommend its amendment or repeal,” the bench added.

The court also observed that the President under Article 370 (1) is conferred with the power to extend any provision of the Constitution to the state with such “exceptions and modifications” as may be deemed fit subject to consultation or concurrence with the state government.

“And such power would include one to amend or alter the provision to be applied, delete or omit part of it, or make additions to the provisions proposed to be applied to the state. Such power would extend even in case of provisions of the Constitution already applied,” the court said.

In the circumstances, the court said, additions made to existing constitutional provisions through various Constitution (Application to Jammu and Kashmir) orders on their application to the state – like the proviso to clause (2) Article 368 – would fall within the four corners of Article 370(1).

The court said Jammu and Kashmir, while acceding to the Dominion of India, retained limited sovereignty and did not merge with the Dominion of India, like other Princely States.

“The state continues to enjoy special status to the extent of limited sovereignty retained by it.

“The limited sovereignty or special status stands guaranteed under Article 370  – the only provision of the Constitution that applied to the state on its own. The only other constitutional provision made applicable by Article 370 of the Constitution to the state is Article 1.

“No other provision of the Constitution as provided under Article 370 (1), would be applicable to the state except, by presidential order in consultation with the state in case the provision is akin to subjects delineated in the Instrument of Accession, and with concurrence of the state, in case it does not fall within ambit of the Instrument of Accession,” the court said.

The constitutional framework worked out by the Dominion of India and the state reflected in Article 370 has its roots in paras 4 and 7 of the Instrument of Accession, the court said.

In terms of Article 370, the court said Parliament’s legislative power over the state is primarily confined to three subjects mentioned in the Instrument of Accession—Defence, Foreign Affairs and Communications.

“The President, however, has power to extend to the state other provisions of the Constitution as also other laws that relate to the subjects specified in the Instrument of Accession. While extending such provisions and laws, the exercise of the power involves consultation with the state government,” it said.

The court said the Constituent Assembly in terms of the proviso to clause (3) Article 370 is conferred with the power to recommend to the President that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications mentioned in the recommendation, if any so made.

The court pointed out that it is only on such recommendations that the President in terms of Clause (3) Article 370 of the Constitution may, by public notification, declare that Article 370 shall cease to be operative or shall be operative only with such exceptions and modifications and from such date, specified in the notification.

“The Constituent Assembly did not make such a recommendation before its dissolution on January 25th, 1957,” it said.

“Resultantly, Article 370, notwithstanding its title showing it as a ‘temporary provision’ is a permanent provision of the Constitution. It cannot be abrogated, repealed or even amended as the mechanism provided under Clause (3) of Article 370 is no more available,” it said adding, “Furthermore, Article 368 cannot be pressed into service in this regard, inasmuch as it does not control Article 370 – a self contained provision of the Constitution”.

To suit the autonomy granted to the state, the court said, provisions like Article 35A and the proviso to Article 253 and the proviso to Clause 2 Article 368 have been added to the provisions of the Constitution, as applied to thesState.

“Article 35A gives protection to existing laws in force in the state and to any law enacted after 1954 by the state legislature,” it added.