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Virasam: The Destruction of Kashmir is a Deathblow to Democracy in India
The Destruction of Kashmir is a Deathblow to Democracy in India.
- Coordination of Democratic Rights Organisations | 16.08.2019 11:28:00pmThe abrogation of Article 370 of the Constitution of India and the alteration of the State of Jammu and Kashmir into a Union Territory through the Jammu and Kashmir Reorganisation Bill, 2019 orchestrated by the BJP government, has dealt a deathblow to democracy in India. The Indian Constitution has been torn up by the government of India, and the concept of federalism, one of the bedrocks of the Indian constitutional system, has been thrown to the winds. In taking away the statehood of the only Muslim-majority state in India, the Hindutva government has sent out a threatening message to all minorities in India. The entire post-independence ʹidea of Indiaʹ, as a constitutional state abiding by laws and treaties, whatever be its short- comings and multiple failures, is now on the verge of destruction. Article 370 defines the special status of Kashmir, in the context of Kashmirʹs accession to the Union of India post-partition. Its roots lie in the Instrument of Accession signed by Hari Singh, the last king of Kashmir, to join India in 1947. India is a signatory to the Instrument of Accession, Article 7 of which makes clear that Kashmir was not ʹfetteredʹ to accept any future Constitution of India. Article
370 considers the fact that no plebiscite was held in Kashmir, a Muslim majority state ruled by a Hindu ruler, on whether its population wanted to join India, although the joining of Junagadh, a Hindu majority princely state ruled by a Muslim ruler, to India was based on a plebiscite of its people. Article 370 therefore historically constituted the basis of the bond between the people of Jammu and Kashmir and the state of India, respecting the special circumstances of Kashmir and its accession to the Union of India. In practice successive Indian governments betrayed the provisions of Article 370 as the people of Kashmir
were never protected from the Indian stateʹs depredations, but the BJP governmentʹs action in abrogating Article 370 has severed this bond and effectively enacted a coup in the state of Jammu and Kashmir. Associated with Article 370 was Article 35A, which allowed the state government of Kashmir to determine the permanent resident status of citizens, which determined that only permanent residents could buy land and get government employment. It was clarified during the debate on Article 370 in Parliament in 1963 that this rule was in effect from the times of princely rule in Kashmir and was not a new invention. Also, Article 35A is in operation in 11 other states in India, including Himachal Pradesh and the North-eastern states, where the demographics and economic condition of the local population is fragile, and can be threatened by the large scale influx of outsiders. By removing Jammu and Kashmir, the only Muslim majority state in India, from the ambit of Article 35A, the BJP government has fulfilled the dreams of Hindutva supremacists and cleared the path of setting up a colonial settler state in Kashmir.
The way in which Article 370 has been abrogated can be described as a parliamentary joke at best and a fraud on the Constitution at the worst. Although Article 370 comes under the "temporary, provisional and transitionalʹ section of the Constitution, multiple judgements of the Supreme Court, the last one as late as in 2018, has clearly declared it to be a permanent part of the Constitution, which cannot be abrogated by a presidential order. Article 370 clearly states that this article can only cease to be operative based on the recommendation of the Constituent Assembly of Kashmir. As the Constituent Assembly of Kashmir ceased it exist in 1957, Article 370 came to be considered as a permanent part of the Constitution, which was supported by multiple judgements of the Supreme Court. The BJP government has committed multiple frauds on the Constitution by its Presidential Order, which purports to amend Article 367, and unrelated section of the Constitution, by adding a new clause which redefines the Constituent Assembly of the state at its Legislative Assembly. Now, as the Legislative Assembly of Jammu and Kashmir has been dissolved and the state is under Presidentʹs rule, it has considered the Governor, an appointee of the central government as the government of the state, and has passed the Presidential Order on the basis of the support of the Governor. This constitutional jugglery defies logic and is patently illegal, and should be opposed by all means.
Secondly, by the introduction of the Jammu and Kashmir Reorganisation Bill, 2019, the state of Jammu and Kashmir has essentially been destroyed and replaced by a Union Territory of Jammu and Kashmir with a legislature and an Union Territory of Ladakh without a legislature. This is a frontal attack on the democratic rights of the people of Jammu and Kashmir as their right to have an elected government has been essentially abolished. Also, this is unconstitutional as Article 3 of the Constitution clearly states that Parliament can consider a bill that causes changes in the nature of a stateʹs government only if the bill is ʹreferred by the President to the Legislature of that State for expressing its views thereon.ʹ As the Legislature of Jammu and Kashmir has been dissolved, this essential provision of the Constitution has been violated. Making Jammu and Kashmir a Union Territory makes it subject to direct rule by the central government, specifically areas like law and order and land will be under the control of the central government, making it easier to impose an extremely repressive colonial settler state. Moreover, this creates a precedent by which any state whose legislature has been dissolved can be converted to a Union Territory, or its federal nature violated otherwise, by the central government.
All this has been done in the backdrop of a massive scale up of the militarisation of Kashmir, with 68000 more paramilitary personnel stationed there in addition to the 650,000 already present. The entire state has been shut down and communication with the rest of the world has been snapped off, political leaders of all parliamentary parties, including two ex-chief ministers have been arrested or put under preventive detention and. Essentially, the entire state has been cordoned off and an Emergency declared for the preparation of what seems to us like a blood bath of epic proportions. The people of Kashmir have been protesting for the fulfilment of their rights for generations now. It is absolutely imperative now that the people of India, stand with the people of Kashmir and unite to protest against this action of the Hindutva supremacist BJP government, before the existence of India as a country with any semblance of democracy disappears before our eyes. We remain silent at our own peril.
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