J&K: Act fast to recover lost ground

As India loses its grip on the Sunni-dominated Kashmir Valley, now the hotbed of a low-intensity guerrilla war, India has to keep its eyes and minds open on abrogating Article 370 to ensure integration of the Valley through mobility of people from the rest of India. Kashmiris in the Valley have been yearning to retain their sub-national identity, but they simply can’t wage war against India and hold the rest of the state hostage. Many believe that abrogating Article 370 may well be the answer, but equally it is a process where one has to tread on eggshells. A landmark judgment may well have opened old wounds and the question of revocation of Article 370. Tinkering and tweaking through incrementalism isn’t the way forward in Kashmir any more. A decisive response from the Prime Minister himself is required so that the problem can be solved within the four walls of the Indian Constitution.

To recover lost ground, something that the winter lull should have been used to do in terms of opening a back channel with the separatists, there are certain steps that can be taken immediately:

• Send a more proactive governor to replace N.N. Vohra, perhaps Lt. Gen. Syed Ata Hasnain, who can start talking to the stakeholders including the separatists.
• As part of the unified command, send S.M. Sahay back in an active position; replace the current subsidiary intelligence bureau head with someone more in sync with the ground situation.
• Shift the Army and paramilitary commanders, shake the tree, sift through gene pools and find best people with knowledge of contemporary Kashmir operations.
• Kashmir doesn’t deserve a perfunctory response from New Delhi any longer. We now hold only territorial sovereignty and have lost control over the hearts and minds of the local populace.
• In the unquenchable quest for power, the BJP should not be blindsided by nationalistic considerations and should seriously look at its alliance with the PDP in the state, which is only fuelling the Hindu Jammu versus Muslim Kashmir divide.
• Perhaps the time to exit the coalition is not right for as we have seen with the Srinagar bypoll, there is no room for democracy or pro-democratic institutions and forces in the Valley currently.
• Start making decisive moves to provide employment in the Valley where the disaffection is the highest. Look at reviving Central public sector undertakings like HMT Chinar Watches or Rambagh Silk Co, which are in a complete state of disrepair, with even the factory sites decrepit and dilapidated.
• The Choice between terrorism and tourism is empty dialogue, for the people seem to have chosen their calling.
• Pakistan has understood that this youth upsurge is like no other in 70 years, it will continue to target military personnel and installations in a systematic operation.
• Most important, begin the process of abrogation of Article 370, it is not cast in stone, it is a temporary provision, start the process of mobility and integration.

If Article 370 and its abrogation remains contentious, the J&K high court division bench ruling on July 16, 2015, in the case titled Santosh Gupta and another etc vs State Bank of India and others, should act as a catalyst. In this judgment, it was held that various key provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (“Sarfaesi”) were outside the legislative competence of Parliament, as they would collide with Section 140 of the Transfer of Property Act of Jammu and Kashmir. The said Central Act has been held to be inapplicable to banks such as the State Bank of India, which are all Indian banks.

Aggrieved by this judgment, State Bank of India filed a civil appeal in the Supreme Court, which was accepted on December 16, 2016, by the division bench comprising Justices Kurian Joseph and R.F. Nariman. In the judgment, the Supreme Court held that the approach of the state high court was not in consonance with the established law enshrined in the Indian Constitution as well as in the J&K state constitution. In paragraph 40 of its judgment, the Supreme Court held: “The high court judgment begins from the wrong end and therefore reaches the wrong conclusion.” Furthermore, in para 41 it is held: “It is rather disturbing to note that various parts of the judgment speak of the absolute sovereign power of the state of J&K, which is contrary to the relevant provisions of the Indian Constitution. It is the Indian Constitution which is the only sovereign, and the J&K state constitution is subordinate to it.”

In order to buttress its view, the Supreme Court referred to the preamble of the state constitution which in clear terms recites that we, the people of the state of J&K, having solemnly resolved, in pursuance of the accession of this state to India, which took place on October 26, 1947, to further define the existing relationship of the state with the Union of India as an integral part thereof. There is no reference to sovereignty in the state constitution. It is also relevant that the Supreme Court has reminded the state high court that the residents of J&K are first and foremost citizens of India. Indeed, it is recognised by Section 6 of the J&K constitution also. Section 3 and Section 147 of the J&K constitution bar the introduction of any bill in the state legislature having a bearing on the accession made by the maharaja of the state with Union of India.

Pertinently, the Supreme Court in I.R. Coelho vs State of Tamil Nadu declared that the powers of a Constituent Assembly and Parliament, which is the creation of the Constituent Assembly, are not equal. Which clearly means that the power of the Constituent Assembly can never be exercised by the state Assembly as the same is not constitutionally competent. Further, if one analyses Section 147 of the Jammu and Kashmir constitution, it becomes crystal clear that even if the state Assembly has the will to go for such an extraordinary measure it can never do so as Section 147 clearly says that no amendment can be made to Section 147, Section 3 and 5 or to the provisions of the Constitution of India as applicable to the state of Jammu and Kashmir, therefore Article 370 is one such provision of the Constitution of India applicable to the state which cannot be amended.

Kashmiris themselves believe that Section 147 puts all speculation to rest by closing further discussion on the abrogation of the Article 370 for it says — Article 147 of Part 12 is about amendment of the J&K constitution, which states that, “no bill shall be introduced or moved in state Legislative Assembly to amend or change abovementioned articles 3 and 5.” The 1954 resolution of the Constituent Assembly was followed by the incorporation of Section 3 in the constitution of Jammu and Kashmir, which reads: “The state of Jammu and Kashmir is and shall be an integral part of the Union of India.” Meanwhile, Section 5 of the Jammu and Kashmir constitution will only operate in areas in which Parliament has no power to make laws for the state.

As recently as January this year, soft separatist leader and J&K chief minister Mehbooba Mufti labelled the people — including members of her alliance partner BJP — anti-nationals for trying to abrogate the special status enjoyed by the state under the Indian Constitution by using the judiciary and creating an atmosphere of insecurity. She knows that a storm is coming, and building a buffer to it both by the Centre and state is vital at this juncture.