The Kashmir Conundrum

There is so much of hullabaloo after the abolition of Article 370 of the Indian Constitution. The Home Minister scrapped it through a Presidential order. However, the Union Government has not taken consent from the state Assembly. Although the state Assembly is under suspension, this does not mean that the Governor can give consent on behalf of the state Assembly. While there are legal issues regarding the validity of the abolition, we as a democracy should take into confidence the people of Kashmir. After, it touches their lives.

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Abolition of article 370 by the Home Minister, Amit Shah was a master move. In political history, this move would be known as the daredevil stoke. No other Home Minister could have ever dared do that in the last seven decades. It really requires a 56-inch ka seena (56-inch chest) and acumen in terms of political craftsmanship. The skill required for ending a long-lasting problem, no less tricky than Kashmir, in itself, is a task deserving kudos. Truly, the government has got support from many in the rest of India except a few in opposition, complaining about the procedure and not the end itself.

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The opposition’s complaint is that while they support the abolition of article 370 they don’t appreciate the way it was declared. Article 370 is a temporary provision inserted in the Constitution for providing special status to Jammu & Kashmir. According to article 370, Parliament needs the Jammu & Kashmir government’s approval for applying laws in the state except in cases of defense, foreign affairs, finance, and communications. The laws of citizenship, ownership of property and fundamental rights of the residents of Jammu & Kashmir are different from the residents living in the rest of the country. Under article 370, citizens from other states cannot buy property in Jammu & Kashmir. Moreover, under the article, the center has no power to declare a financial emergency in the state.

As soon as article 370 was abolished, a number of petitions were filed in the Supreme Court challenging the move. At present, there are as many as 14 petitions lying in the dock of the Supreme Court. The Court will decide the legality and give the verdict in favor or disfavor. However, why is there so much shrill regarding that?

The story of Kashmir’s inclusion into Indian dominion is unique. To understand that, one has to delve deeper into the history of Indian independence and subsequent partition. After the decades-long struggle, India achieved her independence inauspicious August of 1947. However, despite the effort of our founding fathers, the partition of India could not be stopped. The subcontinent got divided into two-Hindu dominated India and Muslim majority Pakistan. As a princely state, Kashmir was given a chance to join either of the newly formed nations or stay independent.

Maharaja Hari Singh of Kashmir showed no hurry in joining either of them and as such sought time as a pretext. However, Pakistan showed impatience. It attacked Kashmir and held hostage to a vast portion of her land. At his wit’s end, Maharaja urged India to help. However, India refused to help as long as Kashmir does not sign a treaty with India. Maharaja Hari Singh, as a sovereign leader, signed the Instrument of Accession in October 1948, surrendering the subjects of defense, foreign affairs, and communications. India moved troops and drove away from the invaders. However, a small portion of Kashmir had been occupied by Pakistan, which is now known as Pakistan Occupied Kashmir (POK).

Now, article 370 has been removed, Pakistan is running from pillar to post to garner support without much benefit. Everywhere, it is being cornered. Pakistan’s contention is that since Instrument of Accession lays down the provision for referendum, India should respect the same. Moreover, in 1948, the matter was listed in the United Nations. United Nations Security Council passed a resolution to resolve the issue. The resolution recommended a three-step process for the resolution of the dispute. In the first step, Pakistan was asked to withdraw all its nationals that entered Kashmir for the sake of fighting. In the second step, India was asked to progressively reduce its forces to the minimum level required for law and order. In the third step, India was asked to appoint a plebiscite administrator nominated by the United Nations who would conduct a free and impartial plebiscite.

While Pakistan cries foul that India had not held the plebiscite as per the United Nations Security Council’s resolution, she herself had not complied with the first condition of the same. She had not withdrawn her forces from POK. As a result, the UN Security Council’s resolution stands failed. In fact, it holds no relevance now.

Does it mean that Kashmir holds no relevance? No, Kashmir as a people should be India’s concern. The perpetual lockdown, incarceration, and communication breakdown have placed India in bad light among the international community. Since India is the largest democracy, she should behave in a way as to inspire other nations. The people of Kashmir should be taken into confidence for anything that touches their lives. Unilateral revocation would only lead to frustration. Kashmir issue should only be solved by Kashmiriyat, Jamhooriyat, and Insaniyat. 

Although article 370 can be revoked by presidential order, section 3 of the same requires the Indian Union to seek reference from the Constituent Assembly of the state. It means, in its spirit, that the concurrence of the state is necessary. Without the concurrence of the State Assembly, this could not be done.

View More: 2L crores Windfall Gain to Kashmir after Article 370

However, the Government had brought in an interesting way of looking at it. The Home Minister assumed that since Kashmir was under the Governor’s rule, he was the de facto ruler of the state representing Jammu & Kashmir. This is a little too far-fetched an interpretation of the Constitution. While technically, it may be correct but it violates the very spirit of the text. A Governor appointed by the Union of India is more or less the agency of the union. How can he give consent on behalf of a community he does not belong to.

This has to be taken into cognizance. The Court will decide the legality of the matter. However, we as a democracy should show our respect for the democratic spirit rather than technicalities. The solution of the Kashmir issue would lead to a more prosperous India. However, when the means are not good enough, then the end may not be as satisfactory. When a noble end is achieved through a noble means, then beauty unbound.


Summary
Article Name
The Kashmir Conundrum
Description
There is so much of hullabaloo after the abolition of Article 370 of the Indian Constitution. The Home Minister scrapped it through a Presidential order. However, the Union Government has not taken consent from the state Assembly. Although the state Assembly is under suspension, this does not mean that the Governor can give consent on behalf of the state Assembly. While there are legal issues regarding the validity of the abolition, we as a democracy should take into confidence the people of Kashmir. After, it touches their lives.

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