“There is a tide in the affairs of men, which, taken at the flood, leads on to fortune.” This line from the play Julius Caesar, by William Shakespeare, is oft quoted not just for its pithy turn of phrase but as an example of leadership and taking critical decisions at an opportune moment. Such an event was witnessed on 5 and 6 August 2019, when the Indian Parliament, in a spirit of near total bipartisanship, amended the Constitution, abrogating Article 35A and revoking most of the provisions of Article 370.
Why Article 370 was inserted into the Constitution in the first place is a subject of controversy. When Maharaja Hari Singh acceded to the Indian Union on 26 October 1947, that accession was final and irrevocable. The Instrument of Accession signed by the Maharaja was the same as signed by all the other princely states. There was no demand from the people of the state for a separate status, so its introduction, albeit as a temporary provision, was wholly unnecessary. It allowed for a separate flag and a separate Constitution for the State of J&K, which in the years to come, fuelled a separatist mentality and prevented the emotional integration of the State into the Union of India. But more than Article 370, it was the surreptitious manner in which Article 35A was inserted into the Constitution by a Presidential Proclamation without reference to the Indian Parliament, which was the cause of much of the ills that followed. Strangely, in the written texts of the Constitution which were published thereafter, Article 35A found no mention, which is what prompted India’s former Finance Minister and noted lawyer, the late Shri Arun Jaitley, to refer to this insertion as a fraud committed on the Constitution of India.
Article 35A allowed the Jammu and Kashmir legislature to define permanent residents of the state. And in doing so, certain vulnerable sections of society were discriminated against. These were the Valmikis, who had been brought into the state in 1957, the West Pakistan Refugees who had come to the state post partition, the Gurkhas who fought alongside the Dogra forces, and women who chose to marry outside the state. The provisions were discriminatory and violated the fundamental rights as guaranteed to every Indian under the Constitution of India, but little could be done by the Centre as the state of J&K had its own Constitution. Articles 370 and 35A thus enabled a constitutionally approved apartheid system to exist in J&K, which at one end, gave special political, administrative and legal powers to the minuscule elite and on the other, blatantly discriminated against women and other weaker sections of society.
The repeal of the provisions of Article 370 and Article 35A has in one stroke, made all citizens equal beneficiaries of all the fundamental rights guaranteed in the Constitution of India. Over 10,000 Valmikis (Dalits who worked as safai karamcharies) have finally got domicile rights. Nothing could be more shameful than the fact that because of Article 35A, all job opportunities other than that of safai karamcharies were denied to the Valmikis, regardless of their educational qualifications and ability. Over 20,000 West Pakistani Refugees now have democratic and property rights—something that was denied to them for seven long decades. In addition, each family has also received a financial grant of Rs 5,50,000. Gender justice has also been brought about and a woman from the state will now not lose her domicile if she marries outside the state.
In addition, 170 people friendly and progressive laws such as Right to Education, Right to fair compensation for land acquired, Maintenance & Welfare of Parents & Senior Citizens Act-2001, National Commission for Minority Act and Acts for benefit of Women, Children, Disabled, besides the 73rd and 74th amendments have now become fully applicable to J&K. The application of these laws guarantees equity and fairness to the underprivileged such as scheduled castes and tribes, women, children and senior citizens.
Revoking of the provisions of Article 370 has now extended the benefits of reservation to the marginalised sections of the population which have remained either unrepresented or under-represented. Over the last one year, the Reservation Rules have been made more progressive, giving reservation to Pahari Speaking People (4%) and Economically Weaker Sections (10%). Nearly 1.75 lakh Pahari speaking families and at least 1.5 lakh Economically Weaker families will benefit from the move. In addition, the benefits of reservation which were hitherto available only to people living in villages on the Line of Control, have now also been extended to residents of villages on International Border (IB), which has empowered and benefitted nearly 70,000 families.
Benefits under the 7th Central Pay Commission have now been extended to the employees of the Union Territory. To enhance transparency in governance the Jammu & Kashmir State Vigilance Commission Act, 2011 has been replaced and the Anti-Corruption Bureau of J&K brought under the direct supervision of Central Vigilance Commission. All the provisions of Central RTI Act 2005 have also been enforced in J&K. Measures to strengthen the Justice delivery mechanisms have been introduced which in due course of time will make governance structures more accountable and transparent.
A year ago, the Indian People, through their representatives in Parliament, ushered in a new dawn for the people of J&K. A year is but a short time to see the beneficial impact of the changes wrought, but history will bear testament to the fact that this was the most enabling legislation, brought forth by a strong and determined government to fully integrate the Union of India.
Sent to DoorDarshan on 3 July 2020.
