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 with Adv. R Muralidharan, who is a practicing lawyer, seasoned professor and a founding faculty member of the National Law School of India. In this interview, he shares his view on the constitutionality of Article 370.
Question 1: what do you think necessitated the amendment to Article 370?
Pakistan had never been weaker militarily and economically in its entire independent history
Considering their position, Pakistan cannot do much about the abrogation of Article 370 except making noise about it
BJP’s election manifesto had promised that they would repeal article 370. Now that they have a majority in both houses, it was easy for them to do it
China is facing problems relating to state autonomy in the integration of Hong Kong with mainland China
Turkey, Iraq, Iran, and Syria are also having similar problems with Kurds. In these situations, India’s attempt to integrate Kashmir into its federal mainstream will be received better by global stakeholders
Question 2: How do perceive that the Amendment is going to help in the upliftment of Kashmir, and unification of India, as is being claimed?
SC and ST in Kashmir will get their due share in government employment and educational opportunities
In Kashmir, many Sikhs and Hindus who migrated from Pakistan’s Punjab and Sindh provinces will also receive Indian citizenship and Kashmiri Domicile
Abrogation of special status cannot be an issue with Pakistan as Kashmir in Indian polity receive better treatment, enjoy more political and democratic rights than the people of Pakistan origin in the Pakistan political environment
The rest of India looks at a Kashmiri with a considerable amount of skepticism. This will reduce if Article 370 is repealed
The position of Hindu Pandits, Ladakhi Buddhists and Shia Muslims of Kashmir will improve in a big way
Last but not least many Uttar Pradesh and Bihari Muslims go to Kashmir as migrant labors. Their position will also improve.
Question 3: The instrument of accession clearly states as follows “Nothing in this Instrument affects the continuance of my sovereignty in and over this state, or, save as provided by or under this Instrument, the exercise of any powers, authority, and rights now enjoyed by me as Ruler of this state or the validity of any law at present in force in this state." So as per the accession instrument, Kashmir had an option always. So why do u perceive that it’s a long overdue?
Constitutionally, unless the right to succeed is specifically guaranteed by express written provisions (as in Canada or Switzerland) no constituent state can claim to become an independent state at a later point of time. In other words, it’s a marriage without divorce. However, the aggrieved spouse will have a right to separate residence with reasonable independence. Hence, whatever share in power and governance that Jammu and Kashmir want will have to be worked out within the framework of the constitution. Hence, it is incorrect to the state under international law, that the accession document signed by the kingdom of Jammu and Kashmir gives it the right to self-determination.
It would be instructive to note how Pakistan gobbled up Baluchistan, notwithstanding the more independent interest enjoyed by the King of Kalat. Assuming the accession instrument partakes the character of a treaty obligation. Then the transborder militant act of Pakistan and 3 full-fledged wars, Pakistan has substantially changed circumstances. Hence, I am of the opinion that as per “ROBES SIC STANDBIS” the so-called asserted rights of Kashmiris to have an independent kingdom did not exist under international law.
Question 4: How was the special status given to Kashmir different from the one the present government has given to Nagaland.
One must recognize that Nagaland was never really a part of pre-independent India (unlike Jammu and Kashmir) even though the British asserted sovereignty. Furthermore, people of Nagaland are schedule tribes who followed ancient animistic religion unlike the mainstream religious faiths such as Christianity, Sikhism, Buddhism or Hinduism, etc. Finally, the special status to Nagaland is pursuant to a democratic state-sponsored exercise to stop militancy and at the same time assured the people of Nagaland that their uniqueness will be protected within the framework of the Indian constitution.
Question 5: Do you think the due process of law was followed during the process of Amendment, rather the appeal? if not, how does it meet the test of constitutionality?
I’m sure that even our Constitution contemplated many methods for exercising legislative powers. I’m sure that the process of law was followed in the parliament when article 370 was abrogated. In fact, there was a rare unanimity among non-congress regional parties, people like Mayawati, Mamata, Naveen Patnaik, Chandrababu Naidu supported repeal of article 370.
The federal power-sharing is more political than legal questions. This will depend on the prevailing circumstances regarding the matter of constitutionality. It is anybody’s guess. Currently, the Supreme Court is hearing the matter. Our Supreme Court is known for its glorious unpredictability. If it strikes it down, it would treat that to be a bigger folly than their judgment in national judicial appointment case.
Question 6: There have been reports of a complete blackout of communication channels in Kashmir. Many reports from Independent bodies in India and International agencies have noted that there has been a gross violation of human rights since the lockdown. How do you think the government is justified in this action?
It is true that there has been a block out of communication. Even U.S and U.K are very concerned about it. But the situation is improving gradually. We have to recognize when a foreign-backed freedom movement is to be defeated inevitably, there will be an overall improvement in the enforcement of the Human rights in all people including those who are regularly victimized under Jammu and Kashmir administration. I’m sure that this part of increased Human rights violation will be a temporary phenomenon intended to ensure better respect and observance of the Human Rights of all people who are residents of Kashmir and India.
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