The reorganization of the state of Jammu and Kashmir into two successor Union Territories (UTs) on August 5-6 is something that took everyone by surprise. It became possible by removal of Article 370 and Article 35 A from the Indian Constitution in two Houses of Parliament.
The BJP, and it’s predecessor, the Jansangh, had clearly enunciated their policy that they wanted Article 370 scrapped, right from 1953. Few, however, believed that this was possible or that it could be done in the manner it has been done now. Legal hair-splitting, the perceived ‘alienation’ and such other arguments weighed against any tinkering with Article 370, and it’s illegitimate progeny, Article 35 A.
The present government has shown tremendous guts and legal acumen to render Article 370 defunct. Union Home Minister Amit Shah moved the Bills relating to the state in the Rajya Sabha where the government does not even have a majority. Yet, the relevant Bills were passed by a two-thirds majority!
This clearly shows that not only those on the Treasury Benches, on the side of the government, but even those in the opposition, had supported the government move. This tremendous support for doing away with these provisions shows that on a matter like this, an overwhelming majority is together.
These articles had promoted separatism and secessionist tendencies in the polity of the state. A very peculiar and odd situation prevailed in the state, an integral part of India, according to its own Constitution, which flew in the face of all logic.
It needs to be pointed out here that when Article 370 was introduced as 306-A of the draft Constitution, in the Constituent Assembly in October 1949, almost all other provisions had been read, re-read, debated and duly amended, wherever deemed necessary. This provision was, however, passed post-haste, as it’s mover, Gopalasamy Ayyangar, sought to play down its implications by terming it as “transitional arrangement” necessitated by the peculiar problems faced in the state.
The Congress Working Committee of the time was bitterly opposed to it and had declared it’s intentions of not allowing the said article to be incorporated into the Constitution. Sardar Patel had then pointed out that it would depend upon the commitment and guts of the government of the future to do away with this provision which was placed in Part XXI of the Constitution. It is poetic justice that the prime movers, Prime Minister Narendra Modi and Union Home Minister Amit Shah, behind the scrapping of Article 370 and it’s offspring, Article 35 A, are also men from Gujarat like Sardar Patel.
Defending Article 370, then Prime Minister Pandit Nehru had opined that it would wear out one day. He is quoted by many as having used the words “ghistay, ghistay, ghis jaayega”. However, by introducing Article 35 A through a Presidential order on May 14, 1954, he only added to the problems and made the issue more complicated.
It is interesting that Article 35 A has gone out of the Indian Constitution in the same manner in which it had crept in: Through a Presidential order. Parliament had been kept in the dark in 1954 while slipping in Article 35 A. It’s removal was not kept in hiding by the present government.
Both Houses of Parliament, the Rajya Sabha and the Lok Sabha, in that order, were told how this article was being removed through Presidential order, who had issued the relevant order on advice of the “Council of Ministers”.
Ladakhis had first demanded that they be separated from the Kashmir Valley as early as 1949. They wanted their region to be either made a part of Jammu or east Punjab (now Himachal Pradesh). So, for them, it is a long-cherished dream which stands fulfilled now. As recently as in 2002, the Ladakh Union Territory Front (LUTF) ensured that Nawang Rigzin Jora and Sonam Norbu were declared elected unopposed MLAs. This shows that making Ladakh a separate UT is in tune with their long-cherished and well-articulated political aspirations.
One of the tallest spiritual and political leaders of Ladakh, Kushok Bakula Rinpoche, had articulated the Ladakhi aspirations for grant of UT status many times. He had made this demand even before Sheikh Mohammed Abdullah when reverred Rinpoche became a member of the Constituent Assembly of the state in 1951 as a National Conference candidate.
As for Jammu, a vast majority of people of the province were treated as second rate citizens by the Kashmiri ruling elite for decades after Maharaja Hari Singh signed the Instrument of Accession on October 26, 1947. They are only too happy as the discrimination at the hands of the Kashmiris will become a thing of the past now.
Neither the Ladakhis nor the Jammuites were happy with the hegemony of Kashmir, the smallest part of the state, over them. A more equitable and just system of governance is expected emerged out of debris of what was for over seven decades Kashmir-centric system.
Initially, in 1951, when the members of the Constituent Assembly of the state were elected, or rather selected, each one of them were supposed to represent 40,000 people. That was the only yardstick used for those elections with no other criteria being followed. However, in 2008, on an average, 37 MLAs of the Jammu region were elected by 83,263 voters apiece. In Kashmir, on the other hand, 46 MLAs were elected by 70,884 voters apiece.
Of course, the average area of a constituency in Jammu is 710 square kilometres whileas in Kashmir, it is less than half, only 348 square kilometres.
It clearly shows that the constituencies in Jammu are much bigger as compared to those in Kashmir, both voterwise, and areawise. This is clear from a perusal of the electoral data of 2014, 2002, 1996 or even earlier elections. This was always resented by the people living in the Jammu region as the Kashmir region was propped up as a hegemon by powers that be artificially.
This is something that would be corrected now after reorganization as a fair distribution will emerge. The inclusion of the West Pakistan refugees living in the state since 1947, the Valmikis living in the state since 1957 and many Gorkhas is likely to tilt the political balance of power towards the Jammu region. This is likely to happen as more assembly seats will likely accrue to it after retribution and fresh carving out of assembly constituencies. Simultaneously, the preponderance of Kashmir in any governance structures in the state will end.
The end of Article 35 A is a huge blessing for the women of the state married outside the state who were unfairly, unconstitutionally given lesser rights than their male counterparts. This was a clear violation of the equality clauses of the Indian Constitution, specially Article 14 which enshrines Right to Equality of genders. The abolition of Article 35 A has ended this grossly unjust practice and the spouses & children of these women will not have to suffer as they had to do earlier.
Reorganization of the state will bring much needed private investment in several sectors and boost the local economy. The investors were wary of putting any money into Jammu and Kashmir as they could not own any land here. This was a huge deterrent as many prospective investors argued that it was unfair to expect them to create employment for hundreds of locals and remain a kirayadar to some local!
A very important consequence of re-orientation is that around 100 Central laws will become applicable in the two UTs. Simultaneously, over 150 state laws stand to get repealed. As a result, there will be uniformity of laws and their applications.
False and misleading narratives about the accession of the state to India had been built. A separate Constitution, a separate state flag, some separate state laws et al were used for promoting the narrative that the accession was conditional. This despite the fact that there was no provision for a conditional accession anywhere. Doing away with Article 35 A and Article 370 means all the laws passed by the Indian Parliament apply to the successor UTs.
The basis for creating confusion among masses thus ceases to exist. The two UTs of Ladakh and Jammu & Kashmir are now as much a part of India as Delhi, Chandigarh and Puducherry. Confusion deliberately created by various politicians regarding sovereignty of the state has ended once and for all now. It is only the Indian Constitution which is sovereign and the earlier state Constitution just doesn’t exist.
Citizen Journalist: Sant Kumar Sharma