TIC Focus l
- Tensions have risen in Indian Occupied Kashmir (IOK) as the Indian Occupation took a major decision with regard to the state’s special status by revoking Article 370. Rumours about abrogation of Articles 35A and 370 first started doing the rounds with New Delhi’s decision to deploy 100 additional companies of paramilitary forces in the state.
- Tens of thousands of additional Indian troops have been deployed, a major Hindu pilgrimage was cancelled, schools and colleges were shut, tourists were ordered to leave, telephone and internet services were suspended and regional political leaders were placed under house arrest. India has targeted civilians across the Line of Control with banned cluster munitions.
- Kashmir-based politicians have led to conjectures, while asking the Centre to desist from making such a move. All regional parties of Jammu and Kashmir, including the National Conference (NC), Peoples Democratic Party (PDP), Jammu and Kashmir People’s Movement (J&KPM) and others have opposed to any tinkering with Articles 35A and 370 that give special status to Jammu and Kashmir.
- According to experts, India has destroyed its legal case over Kashmir and has alienated even those politicians in Kashmir who desired to stay with India leaving a space for pro Independence elements. PDP Leader Mehbooba Mufti has expressed openly that Kashmiries of IOK were wrong to side with India over Pakistan. Former CM of IOK, Farooq Abdullah stated that India had betrayed Kashmir.
Article 35A & Article 370
- Article 35A and Article 370 are two such articles in the Constitution of India that provide special rights and privileges to the permanent residents of IOK and grant special status to the State of IOK. Article 370 was added in the Indian Constitution after the agreement signed between former Prime Minister Jawaharlal Nehru and Maharaja Hari Singh of Jammu Kashmir.
- In 1952 “Delhi Agreement” was signed between the then Prime Minister of Jammu and Kashmir, Sheikh Abdullah and the Prime Minister of India, Jawaharlal Nehru. The agreement extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir. After the Delhi agitation of 1952, the famous ‘Article 35A’ was added to the Constitution in 1954.
- The constitution of Indian Occupied Jammu and Kashmir was adopted on 17 November, 1956. According to this constitution, Permanent Resident (PR) of the state of Indian Occupied Kashmir is a person who has a state subject on 14 May, 1954 or who has been a resident of the state for 10 years and has “lawfully acquired immovable property in the state”.
- Article 370 limited the Union’s legislative power over Kashmir to the three subjects in the Instrument of Accession. If the Union government wanted to extend other provisions of the Indian Constitution, it would have to issue a Presidential Order under Article 370. The state government would have to give prior concurrence to this order. Moreover, the constituent assembly of IOK would have to accept these provisions and incorporate them in the state’s constitution. Once Kashmir’s constitution was framed, there could be no further extension of the Union’s legislative power to the state. This secured IOK’s autonomy.
Action against Article 35A
- There have been many attempts for its abrogation like; in 1956, 1961, and 1970 but petitions challenging the Article 370 were dismissed by the court. The current debate started after an RSS proxy NGO challenged it in the Supreme Court on December 2015 on grounds that Article 370 was added to the constitution through amendment under Article 368 (which empowers parliament to amend the constitution) I.e., through the presidential order and was never presented before parliament. The PIL has been entertained by the Court and is likely to hear on this matter on 27 August after deferring it by a few weeks. Supreme Court lawyer Charu Wali Khanna, who has filed another petition challenging the said Article, claims it is also discriminatory against women.
Impact of Abrogation
- The scrapping of Article 370 thus makes all other presidential orders from 1950 onwards, invalid and nullifies all the 41 subsequent presidential orders. In this backdrop, recently implemented laws NFSA 2015 (National food security act), GST, and Collection of Statistics Bill, 2017 also stands illegitimate and need revocation. Moreover, prior to insertion of Article 35A, the Governor and the Chief Minister of Jammu and Kashmir were addressed as the Sadr-e-Riyasat (President) and Wazir-e-Azam (Prime Minister). It’s repeal must then also return such nomenclatures.
- Such a step will not only dilute the disputed nature of Kashmir but also engineer a demographic change as rich Indians supported by the state will buy prime properties thus reducing Kashmiris to a minority in their own land.
BJP’s and RSS Agenda
- Many argue that the abrogation of Article 35A and 370 is a first step in the BJP’s plan to change the constitution of India. BJP is the political wing of the Hindu extremist group called the Rashtriya Swayemsevak Sangh (RSS). The RSS believes that the equal status given to Muslims and Hindus due to secularism in Indian constitution is “a British conspiracy”
- In fact, RSS wanted this Constitution to be replaced by Manusmriti or Codes of Manu.The RSS is also against federal structure of the constitution, again a basic feature of the India polity. It feels a federal structure promotes “separatism”
Articles under threat
- Aside from Article 370, Article 25 and Article 30 are both being targeted by the RSS and BJP. Article 25 relates to the Freedom of conscience and free profession, practice and propagation of religion. Article 30 upholds the right of the minorities “to establish and administer educational institutions.”
- The late Indian Prime Minister and BJP leader Atal Bihari Vajpayee (in office from 1998 to 2004), took a moderate approach to constitutional change, arguing that “even in the mightiest fort one has to repair the parapet from time to time” (while VP Singh cautioned that the “tenants” should not go for “rebuilding in the name of repairs”). His rule saw no dramatic change in India’s constitutional arrangements, though his government did conduct a constitutional review that produced a 1,979-page report which was largely unread.
- RSS chief Mohan Bhagwat has pitched for changes in the Constitution and jurisprudence in line with the value systems of the country. He is assumed to be alluding to changes in constitution through amendments. Tripura Governor and former BJP-RSS member, Tathagata Roy has said that what was accepted in 1950 can be changed through amendments.
- BJP governments either strengthened existing legislation or passed new, more restrictive anti-conversion laws in several states. Himachal Pradesh was the only state where a Congress rather than BJP government introduced such legislation. Five BJP state governments have passed laws which require community members to inform the police and administration if they suspect that pastors, nuns and clergymen are proselytizing.
- The laws passed in Gujarat in 2003 and introduced in Chhattisgarh, Himachal Pradesh, and Madhya Pradesh in 2006 made conversions that were deemed to have entailed force or allurement non-bailable and cognizable. Rajasthan also made such law later on. These laws require individuals to inform the district magistrate about their intention to convert (in Gujarat, a month before the conversion, and in Madhya Pradesh and Himachal Pradesh, within a specified time afterwards). They allowed district magistrates to investigate cases and determine whether conversions entailed force or coercion.
- The Government of India has a few times intervened in religions historically as mandated by the constitution. The enactment of anti-untouchability act(SC/ST Act,1989) and also the recent law banning triple talak among the Muslim community is example of this constitutionally mandated intervention. Government also intervene when women of any religion are denied opportunities or equality as gender equality is guaranteed by the Indian constitution.
Impact of Abrogation
- Ending article 25 and 30 can end the equal status of Muslims in Indian law. End of Article 25 could make Muslims and other minorities second class citizens in India without rights to freely follow their own religion. They could also be targeted in forced conversion campaigns such as Ghar Wapsi. Also marriages between Non Hindus and Hindus could become illegal.
- The repeal of Article 30 could end religious education for Non Hindus who will be forced to opt for Hindu religious education making them susceptible to being converted to Hinduism.