“A nation can be destroyed only by its people and people by failed governments.”
The geostatus of today’s Union Territories – Jammu, Kashmir and Ladakh (JKL) was not a problem but an opportunity gotten in 1947 to lead and govern a state and its delightfully innocent people, years under blurred identity, towards quality life and recognition. But that was not to happen for another 72 years under the barmy rush to share the booty and spoils in the gritty darkness of power politics among India’s localised powerful, duly aided by cohorts of the foreign kind. It’s natural in geostrategic among survival bites and pangs. The land, JKL, was nature’s paradise inhabited by a mix of equally beautiful and considerate people differentially singular as humans everywhere. But incompetent governance laced with vested interests, some of them cruel and vestigial, lead to a solution: separation (till permanent), to a problem that wasn’t there. The misapplied solution led the state to be constitutionally separated, an interesting case for constitutional study which in author’s staccato thinking means the law devouring itself mockingly and thus making self-voidable if not void, retaining enforceability. It is similar to a snake swallowing its own tail. Law is not meant to pacify somebody’s needs but those of everybody under due process. It is an aspect strongly linked to behaviour. Lawmakers should know.
The decision of the elders in governance kept the trifecta state constitutionally estranged from the rest of the country to which it belonged. It happens to siblings in some families too.
The protagonists, within the system of governance in those troubled times, decided to have a separate constitution for the state comprising the regions of Jammu, Kashmir and Ladakh. Article 370 of the Constitution and the suzerainty status of the state under the British Paramountcy came handy to slide in Article 35-A in 1954. That was four years after the Constitution became effective. Article 35-A empowered the state’s legislature to define permanent residents of the state and provide special rights and privileges to them3. Thus the state was empowered, both in the Instrument of Accession and Article 370, to decree exceptions to any extension of the Indian Constitution to the state, other than in the matter of ceded subjects. Article 35-A, therefore, was an exception authorised by Article 370, clause (1)(d) that gave the state Legislature a carte blanche to decide “permanent residents”4 of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the state, scholarships and other public aid and welfare. The provision mandated that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land. That was bad for India similar to Alexander II (1818-1881) signing Alaska to the United States in one stroke making it vanish from the Russian map—puff gone! Russians have never excused the Tsar since then. In India, the parliamentary route of lawmaking was bypassed when the President incorporated Article 35-A into the Constitution. The Article is void (author) because the government under Nehru, did not place it before Parliament for discussion5.
This made other citizens more or less non-permanent persona non-grata (author) in their state, a situation worse than before. That too, in a free and forward-looking country that unfortunately was on a backward surge at that moment. It was a constitutionally morphed ethnic divide masterminded by the educated leaders of the day. There was devolution of status of the unprivileged by the mordant division. That was bad and shameful. It was vehemently criticised throughout since its introduction as discriminatory. The citizens who suffered were women by losing residential status and right of property if married to a non-permanent resident, migrant workers and refugees of the horrible partition under failed and foolhardy governance driven by panic and vileness. They became lowered and victimised citizens whom nobody counted seriously. It was a blot on the country’s self-esteem. The snow on the mountains and the valley was gradually turning red.
A change happened on 5 August 2019 for the people of the trifecta state. 72 agony years later, the President of India issued a new order that made all the provisions of the Indian Constitution applicable to the state without any special provisions. This made the state sans a separate constitution. The order stipulated that it would “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954,” and the article 35-A as well. In April 2018, the Supreme Court had ruled that Article 370 attained permanency6 since the state constituent assembly has ceased to exist. That meant it was not a temporary provision, though marked under Part XXI7 of the Constitution. The Indian government instead rendered Article 370 as “inoperative”8. The article still exists in the constitution. The trifecta state was realigned as two Union Territories (Jammu-Kashmir and Ladakh). It gave them identity recognition for the first time since accession. India now has 28 states and 8 Union Territories.
Two years later, the tale of the two Union Territories is just fine. They are doing well. But the wounds will take a long time to heal. There is hope blooming among people for whom it was a nightmare in paradise since independence. Worse, it happened in the hands of those who were supposed to protect. That is the biggest tragedy anybody can invoke against a human or a human system. According to scriptures, Lord Indra, the King of Gods, did it to an innocent earthly woman from the mythopoeian age—Ahalya. Indra the powerful was never worshipped or extolled as a protector since then. He lost respect from people who know, in spite of the virtues he otherwise possessed. This could also happen to the mere mortals who walk the earth as authoritarians.
Though articles 370 and 35-A are not abrogated (author) the redeeming of the state was salvation for a silent human system cursed to lifeless stones under iron-clad autonomy. It is surprising that what has been hailed as one of the paramount constitutions (author) in the world had a gritty dark side that deprived a section of innocent people what anybody values most—right to life. The article created a country within a country that turned out to be a private property of a select few nefariously perched in paradise. They didn’t realise the paradiso had turned into an inferno even for themselves by their self-effacingazione. That compounded the tragedy. It may sound stupid but those who skewed it in were not stupid. They had an agenda to separate the territory from the Union of India. The term “Union” in this statement is legally axiomatic and powerful.
Today there is freedom, hope and self-respect for the people in the two Union Territories. There are no deprived classes. Ethnic security one of the 16 elements of national security (Paleri, 2002) has been optimised by governance by national security (GBNS). The two Union Territories are on the fast track to maximum well-being. But will it all last? The anteforce is working overtime in perfect unison to pull the forward surge back. That is where the biggest trial of national governance lie—recycling the energy hidden in the anteforce towards proforce (Paleri, 2002). It is still a topic in infancy in national security governance. Contrasting may not be the only solution. A perfect government is the only hope even for those who oppose it unwittingly.
End Note
1. Ethnicity according to author is anything that separates a human from another in common perception. Paleri, P. (2007). National security: imperatives and challenges. Tata McGraw-Hill Publishing Limited. p. 328-42.
2. There are some similarities with the accession of Texas with the USA in 1845. The case of JKL is much stronger.
3. The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India under Article 370.
4. Permanency in residency geopolitically should be seen only in terms of a nation under Westphalian sovereignty that the world follows as of now and not for any region within.
5. A five-judge Bench of the Supreme Court in its March 1961 judgment in PuranlalLakhanpal vs. The President of India discussed the President’s powers under
Article 370 to “modify” the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. This question remains open.
6. The Supreme Court on a plea challenging the validity of article 370 of the Constitution ruled on 3 April 2018 that it was not a temporary provision. The issue according to the Bench was covered by the court’s judgment in 2017 in which it had held that “despite the head note of Article 370, it was not a temporary provision.”
7. Temporary, Transitional and Special Provisions.
8. The controversial article was drafted by Sheikh Mohammad Abdulla (1905-1982), the first prime minister of the Princely State of Jammu and Kashmir after its accession to India. He did not want it to be temporary. Article 370 of the Indian Constitution conferred special autonomous status to Jammu & Kashmir.
