Kashmir: A New Dawn – By Gyan Sharma

By GovernanceToday
In Editorial
September 30, 2019
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India has successfully revoked the special status to J&K under article 370 and converted the state into two Union Territories. This was one of the oldest unresolved issues of independent India and the root cause of many hurdles, stopping the full integration of Jammu & Kashmir with India. It was also one of the reasons why Jammu & Kashmir are not at par with other Indian states in terms of prosperity and growth.  Several governments since the independence of India have had a goal to resolve the Kashmir dilemma, but it has proved to be the toughest nut to crack. However, I think the Indian government this time has made a brilliant start and crossed the biggest hurdle by making the constitutional amendment first. Now the remaining challenge is to convince the people of J&K that this is for their betterment and to improve the livelihood of millions living under poverty and hardship in that region. The government has to put this region now into the fast trajectory of prosperity.

Now let us understand what is article 370 and 35A which created so much trouble all these years.

Jammu & Kashmir became part of India when the government of India and Raja Hari Singh of Kashmir signed the instrument of accession (IOA) on 27th Oct 1947. When we signed the IOA we gave a special provision to J&K, and to fulfill that statement we included article 370. Article 370 was incorporated in the constitution of India on 17th Oct 1949. And on 26 Jan 1950, our republic day, the constitution of India became applicable, so article 370 is part of the constitution from the beginning.

What article 370 says –

  • Article 370 gave special status to Jammu and Kashmir; it says there will be special laws for J&K.
  • Article 370 also said that it is a temporary provision, so this special provision is a temporary provision.
  • Article 370 also said, if the president wants, he can issue a public notification and at any time remove this provision. To issue this notification, he has to take permission from the J&K constituent assembly, but that constituent assembly was dissolved in 1957 itself, so it was a deadlock to remove article 370.
  • Legislative assembly and constitutional assembly are two different things and 370 talked about constitutional assembly, that was the deadlock to remove article 370.

As said above, article 370 gave special status to Jammu & Kashmir so to fulfill that condition Dr. Rajendra Prasad issued a presidential order on 14th May 2954 named ‘The constitution (application to Jammu and Kashmir) Order 1954’. With this order, Article 35A was included in the constitution. Article 35A is not part of the constitution of India but it is a part of the constitution of Jammu and Kashmir. Article 35A decides who can be a permanent resident of Jammu and Kashmir.

On 17th Nov 1956, the constitution of J&K was started to be applicable. Jammu & Kashmir constitution declares that it is an integral part of India. Jammu & Kashmir constitution’ Article 92 says that if the state constitution is not working well, then the governor rule takes over from there.

In the name of special status, Article 35A created discrimination among the people living in J&K. Article 35A states that all laws which the other states of India follow, will not be applicable in J&K.  The president along with the state assembly will decide which laws will be applicable in J&K.

The constitution of J&K and Article 35A decides who is considered as a permanent resident of J&K. Permanent residents in J&K have special rights and privileges. Only the following people are considered as a permanent resident of J& K –

  • people who are state subject from 14th May 1954
  • who are living for 10 years or more 
  • who has acquired an immovable property there

No one else is considered a permanent resident and can also not vote in state elections.

Article 35A was very discriminating for women also. If a Kashmiri woman marries an outsider or a Non-Kashmiri, then she will not be able to use her property rights anymore. Article 35A was the speed breaker for the development of the state, because government jobs, higher education or land purchase type of facilities were only for the people who were permanent residents of Jammu and Kashmir. That was the reason; qualified scientists; specialist doctors or teachers did not want to go there. Due to article 35A, there was also a lot of discrimination against the minority and Dalits in J&K. Article 35A and 370 were the major causes behind why  Jammu and Kashmir were not able to fully integrate with the other states of India and not develop like the other states.

As I mentioned above, on 14th May 1954 a specific order was passed by Dr. Rajendra Prasad named ‘The constitution (application to Jammu and Kashmir) Order 1954’. With this order, Article 35A was included in the constitution. On 5th Aug 2019, President Ram Nath Kovind used the same power on the clause 1 of article 370 and issued another presidential order called ‘The Constitution (Application to Jammu and Kashmir) Order 2019’ and said it will overwrite or replace the order of 1954 with immediate effect. Therefore the 1954 presidential order was replaced by the Presidential order of 2019, and so article 35A and the constitution of Jammu & Kashmir was finished in one shot. Immediately after this, Home Minister Amit Shah proposed two resolutions. First, he said that because of article 370, there is a lot of discrimination so we should make such changes in article 370. Second, he proposed a Jammu and Kashmir reorganization bill. He said due to Article 370, Jammu & Kashmir state development was not satisfactory and democracy is not coming to full existence in Jammu & Kashmir. For example, social welfare schemes such as Ayushman Bharat are not applicable in Jammu & Kashmir. Qualified doctors are not going to Jammu & Kashmir to work knowing that severe limitation will be imposed on him/her there.

The presidential amendment of 2019 added clause#4 in Article 367. Article 367 is the interpretation of article 370. Clause #4 of Article 367 said that from now on the ‘constituent assembly’ in Article 370 will be known as a legislative assembly. The deadlock of the constituent assembly was finished by this.

The second resolution on Jammu & Kashmir’ reorganization bill section 3 says that a new union territory will be made, which will comprise the region of ‘Ladakh’ (Kargil and Leh). Section 4 says that a new union territory named ‘Jammu and Kashmir’ will be made. Ladakh’s territory will be without legislature body and Kashmir’s will be with the legislature.

In summary the impact of removing 35A and changes in 370 – 

  1. Earlier Separate Flag, now Tricolour will be the only flag
  2. Earlier Separate Constitution for J&K, now only one Indian Constitution
  3. Earlier Dual Citizenship, now only Single Citizenship
  4. Earlier no reservation for minorities, now reservation for minorities as per the Indian constitution
  5. Earlier special powers conferred to J&K, now no special powers
  6. Earlier Article 356 and 360 not applicable, now they are applicable
  7. Earlier if a woman from J&K marries a non-state, she would lose all property rights, now she can marry anyone without losing property rights
  8. Earlier people from other states could not buy land or settle in J&K, now this restriction is removed

Financially also, the central government had to pay a very heavy price due to Article 370 and 35A. Jammu & Kashmir has received around 10% of the central grant given to states from 2000 to 2016 period, despite having only 1% of the country’s population. Another example to understand the disproportionate allocation: Uttar Pradesh has around 13% of the country’s population but received only 8.2% of the central’s grant between 2000-2016. Jammu & Kashmir, with a population of 12.55 million (as per 2011 census), received Rs 91,300 per person over the last sixteen years, while Uttar Pradesh only received Rs 4,300 per person over the same period. J&K economy remained fragile, terrorism and debt both flourished even after huge financial assistance from the central government. Successive state governments have failed to utilise the massive central funds for development and allegedly diverted them to other means.

Other than this disproportionate central grant allocation, CAG report on the state’s finance for the year ended March 31, 2014, highlighted that there were persistent errors in budgeting, saving, excess expenditure and expenditure without provision. There was no call for such a large number of audit observations and questions lying unanswered with the state government, that speaks the widespread corruption in that region without much control from the central government.

Speaking about economic backwardness in J&K, Amit Shah had said, “Article 370 impedes people from outside the state to do business there. Absence of economic competition has prevented development, and corruption flourished. Land prices are at rock bottom because no one can buy land there. No industry, including tourism, is allowed to grow there. People remain poor in perpetuity despite the presence of abundant economic opportunities for the local populace. Rampant corruption is present, thus preventing external investment in the state.

We all know how the J&K state leadership did not pay any attention to people’s plight and kept them away from development and prosperity all these years. Since the last 70 years, all J&K politicians were busy fear-mongering about Article 370 removal and throwing peanuts to J&K people just to win elections. They didn’t provide any employment opportunities to local people, forced them to queue in front of their palatial bungalows for small things like LPG connection, help for medical treatments, train reservations, small school scholarships or some small bank loans. Delhi politicians also closed their eyes and kept giving millions to these J&K politicians just to keep so-called ‘calm’ in the valley. Not a single political party in Delhi questioned any J&K leader how & where they are spending money and why our J&K brother and sisters still don’t have proper electricity, roads, medical facilities or school. No wonder Kashmir became the breeding ground of unsatisfied youths, and their anger against the government slowly became the fertile ground for terrorism.

People of Ladakh also welcomed the new development. This is an ethnically and culturally diverse region, which includes Muslim majority Kargil and Buddhist Leh region, they have long demanded the status of Union territory.

I am very hopeful to see positivity in the J&K region now. The central government will directly control this region and cut red tape to speed up development. New highways and roads will be constructed, the government will make sure water, electricity, school, health care projects are on a fast track. New investment will come from other states of India and also from abroad. People will be able to buy land for new factories and provide employment to local youth. Medical industry will be able to set up new hospitals as they are able to buy land now and qualified doctors will migrate to that region for good employment opportunities.  The tourism industry will grow exponentially as people will be able to buy land for hotels and resorts. Local youth are sitting on a big heap of job opportunities in the tourism sector alone. There will be free movement of people and trade between that region and other Indian states. People from the J&K should understand that their good time has come now, after generations of sufferings and agony. They should be very positive and should embrace the new ocean of opportunities which has come to their doorstep. The future belongs to this beautiful region called ‘heaven on earth’. Kashmir and Ladakh regions will move towards prosperity with a very fast pace, as their integration with India is completed in a true sense now.

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