Updated: Nov 17, 2019
Kashmir is embroiled in a bitter political tussle since the end of the colonial period in South Asia. The government of India has always held that Kashmir is a domestic issue and the matter was also dealt as such.
The second term of the NDA government, however, has broken the status-quo by taking away the special status of Kashmir and reducing the erstwhile state to a union territory. This move has unleashed a barrage of opinions from those who back it and those who oppose it.
As the first initiative of Guftagoo, we bring to you two prominent perspectives relating to the removal of the special status, in order to understand the other side of the story.
This is an interview of a lawyer who has taken upon the decision of the Government of India to revoke Article 370. Adv. Soayib Qureshi is a practicing lawyer, who is also one of the petitioners who have challenged the constitutionality of the Amendment to Article 370 before the Supreme Court of India. In this interview, he presents his view on the legality of the removal of Article 370, and its impact on the people of Kashmir.
Question 1: Can you explain in layman terms, what does Article 370 mean for Kashmir and now that it's not there, how does it change things.
India has a federal structure, therefore the powers of the union and the state are confined to the matters which are regulated by the subject entries in schedule 7 of the constitution of India.
In layman terms, the union has the power to frame laws that are within its domain in the lists and the state has power over the subject within its list. Neither state can impinge upon the subject matter of the union and vice versa. This is the separation of powers and a part of the basic structure of our constitution.
The representatives of Kashmir at the time of independence of India were able to get a better deal than the remaining states which had acceded to India. This would mean, the union (center) would hold fewer entries (subjects) on which law could be made by the center. Thus, giving greater autonomy to the state of Jammu and Kashmir to regulate itself. This meant that the state of Jammu and Kashmir had yielded fewer subjects on which law could be made by the union.
This right first emanated from the instrument of accession which was signed by the maharaja of Jammu and Kashmir and has thereafter been given constitutional status by having it incorporated in article 370 of the constitution of India in 1950, almost three years after the instrument of accession was signed.
Today, article 370 having been diluted, the center now has taken away this autonomy and has placed it at par with other states. This, in simple terms, means that the power of governance of the state of Jammu and Kashmir stands reduced.
Question 2: Please tell us about your petition to the Supreme Court regarding article 370. Why do you think repealing article 370 was unconstitutional?
Any action taken in pursuance of Article 370 is required to either be in ‘concurrence’ or ‘consent’ or ‘consultation’ with the State Government. These 3Cs are the soul of Article 370.
The framers of the constitution of India made it clear that no action would be taken by the President under Article 370 of the constitution unless it had the consent or concurrence of the state government.
On the 5th of August, the President of India has allegedly taken the "concurrence of the state government" to issue the notification. On this day, there was no state government and the powers of the state government were being exercised by the President itself.
How the Hon'ble President could give himself the concurrence to issue a notification under Article 370 of the constitution of India is a question that will have to be determined by the Hon'ble Supreme Court.
The term “concurrence” has a greater connotation. The separation of powers in article 370 in itself, along with the checks and balances as spelled out by the 3Cs, the notification could not have been issued at all, especially when here no state legislature.
In simple terms, no power could have been exercised by the Hon'ble President during the President's rule as there was no state in existence.
Even the notification issued on the 6th of August, which completely did away with article 370 could not have been issued as it required the consent of the constituent assembly of the state. Even assuming constituent assembly was the legislative assembly of the state, the powers of the legislative assembly could not have been exercised by the parliament.
Article 370 of the constitution of India has clearly not mentioned parliament in its text and has confined itself to either the President or the state government. The Parliament has no role to play and any usurping of powers by the Parliament of the state government is clearly a breach of the ‘separation of powers’ and violation of ‘checks and balances’ as enshrined in article 370.
Question 3: Can you throw some light on the situation back in Kashmir post the repeal of Article 370
It's an enforced emergency. People of Jammu and Kashmir have been robbed of their rights. There has been completed non-application of mind by the government.
While I understand certain measures are required to be taken to protect life and liberty, but there has to be a certain method of addressing grievances.
While cutting off telecommunication, even emergency numbers for ambulances, fire services had been blocked.
How fire and hospital emergency services pose a threat to national security is beyond any reasonable person’s thinking. Even today, hospitals are without any internet connectivity. Imagine AIIMS being without any internet connectivity, would it function?
There is a national health protection scheme that enables people from weaker sections of society to get medical treatment for free. This medical treatment includes cancer investigations. However to utilize the scheme internet connectivity is required. An estimate of more than 10 lakh people are registered in this scheme but are unable to take any benefit. There has been completed non-application of mind by the government authorities.
It suffices to say, while the government is taking measures to protect life and Liberty, it is ending up causing more harm than required.
Schools are closed, colleges are closed, there is no work. It's a sad state of affairs. The business community has incurred losses in crores.
I cannot intelligently speak about the situation back home as everyone is in dark due to the media blockage. No one is aware of the actual situation. But yes, the only respite from all this is that there is no loss of life.
Question 4: The major argument from the other side is that this move has integrated India. The government also argues that now it can increase its investments in Kashmir to fuel the state's economy. What is the reaction of an average Kashmiri to these claims?
This is a political gimmick, nothing more than that. Jammu and Kashmir was an integral part of the country even prior to removal of article 370 of the constitution of India.
Section 3 of the constitution of Jammu and Kashmir itself declares that the state is and shall be an integral part of India. What integration are the media and government talking about?
The land was even earlier being given at throwaway prices on lease. No one came for investments then, how the said move will be able to get more investments is beyond my understanding.
People did not want to invest there before due to the volatile situation. There is a deep sense of alienation and till the time that is not addressed, the situation will not improve and no right-minded investor will invest in the state.
Even now, the sense of alienation has deepened. Data shared by the central government itself reveals that in 2013 and 2014 there were only 50 to 70 terrorist deaths compared to remaining years where it has crossed 700.
What was the government doing right in 2013 and 2014? I guess the answers lie there and measures implemented during that time are required to be reimplemented.
Prior to the abrogation of article 370, the People of Jammu and Kashmir had employment opportunities and less competition. But now the competition will increase which will hamper the business prospects as well as employment opportunities for the people of Jammu and Kashmir. As an average Kashmiri myself, I see difficult times ahead.
Question 5: What recourse would be taken by Kashmiri politicians and the public once the lockdown is lifted?
The government has placed every person who had the crowd presence under detention or house arrest, trade leaders, lawyers, doctors, industrialists are under scrutiny. In fact, the government has gone on record to say that they will not allow any protests.
Recently few aged women had organized a protest and they were immediately put behind bars and made to sign a bond for release.
In these circumstances, protests are a far fetched idea. There is only legal recourse. There are already petitions before the Hon'ble supreme court dealing with the issue. We will have to await the outcome.
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