To The President of India

via DM, Shimla,                                                                     

Memorandum against Abrogation of Article 370 and Article 35 A

We wish to register our dissent and anguish over the abrogation of key portions of Article 370 and Article 35A on the 5th of August 2019 by the Government of India.   We also condemn the clandestine manner in which the entire process of the removal of Article 370 and Article 35A has been done.  This has induced acute terror and fear in the minds of the Kashmiri population, including its leaders and erstwhile Chief Ministers.  In addition we oppose the bifurcation of the State of Jammu and Kashmir into two union territories- that of Ladakh and Jammu and Kashmir.  We oppose the unconstitutional manner in which the long history of Jammu and Kashmir, has been wiped out and rewritten in a single day without any consideration to the promises given by the Indian Nation State to the people of J &K when the then princely state ruled by Raja Hari Singh had signed the accession treaty on 26th Oct 1947 with India. 

It is to be noted that as per the Indian Constitution, Article 370 could only be removed after seeking the recommendation of `Constituent Assembly of the State’.   Since the Constituent Assembly of J&K ceased functioning in 1957, the Supreme Court in its judgement in `SBI vs Santosh Gupta’, (2017)’, held that the Article 370 has become permanent unless another Constituent Assembly of J&K was constituted.   In order to get over this constitutional hurdle, the BJP Government adopted an unconstitutional route. On 5th August, 2019, they introduced a 3-step Amendment process. In the first step a Presidential Notification under Article 370 (1)(d) was issued amending Article 367 by introducing a new Sub-clause (4) which stated that the expression ‘Constituent Assembly‛ in Article 370(3) shall be read as‚ ‘Legislative Assembly of the State‛.  The effect was that after this change, Article 370 of the Constitution could be amended removing the necessity to obtain the recommendation of the ‘Constituent Assembly’.

 

As is known since December 2018 J&K has been under President’s Rule.  In this context, the above mentioned amendments made it possible for the President of India as the head of the State legislature to exercise his powers to remove Article 370.  But clearly this route is unconstitutional and against the spirit of the law of the land. This, in effect, resulted in a situation in which the President of India could himself consent to permit himself (as Head of the State Government of J&K) to recommend abrogation of Art. 370 of the Constitution! Can this really stand the scrutiny of the court of law?  This entire process, done in such a hurried and secretive manner has clearly undermined the sanctity of the Indian Constitution. 

 

What has also been equally appalling is the entire manner in which the BJP government has planned in utter secrecy the removal of Article 370.  In retrospect we may see that the government’s urgency to have in place the Unlawful Activity Prevention Act (UAPA) was part and parcel of this mission.  Once the BJP was empowered with the UAPA which gave it the right to declare any individual as a terrorist, the government next sent back from J&K, all the Amarnath pilgrims and evacuated the State of all tourists.  It then placed the prominent leaders of Kashmir, including Omar Abdullah and Mufti Mehbooba under house arrest on the night of 4th August 2019.  By doing this the government not only inflicted humiliation and alienated former Chief Ministers of the State who had thus far safeguarded the borders of India and worked for the Indian government, it also induced fear in the local population by attacking the heads of their State.  The psychological import of this can hardly be underscored; a powerful message was sent out that this would be the fate of the rest of the population if they dared to raise their voice.  The next day onwards, i.e. 5th of August the leaders were placed in solitary confinement while the rest of the population was either placed under curfew or under Section 144. The transfer of thousands of CRPF and paramilitary troops has converted the valley and other regions of J&K into a heavy militarized zone.  With the disconnection of mobiles, telephone lines, internet connections and all other possible means of communication the people of Kashmir were plunged into unimaginable terror and fear.  Isolation as such can increase the human propensity to fearfully project worst imaginable scenarios.  This is indeed a tactic of silencing the voice of dissent in an absolute manner. Till today Kashmir remains a black box.  The rest of the country has very little information as to what is happening in the whole of Jammu and Kashmir, especially within the valley.  Even today when more than ten days have passed, the activity of journalists and the press is still under strict vigilance and control.

 

The removal of Article 35A has made J & K,including the region of Ladakh, and their people vulnerable to developmental plans which are undoubtedly geared towards reducing the natives of the State into a minority and wiping away their rich culture and ethnic past, also their spiritual Sufi and eclectic traditions in the long run by ushering in developmental schemes at odds with their cultural rhythms and pace of life.  Already we are told that the Ambanis and other big industrialists and capitalists are eager to start their investment projects in Kashmir. While the government protects the right of the natives of Himachal Pradesh, Uttrakhand and the North Eastern States and outsiders are not allowed to purchase property there, then why has Kashmir been rendered totally vulnerable in a day to outside influences if it is not a planned design to slowly take over its culture and past heritage and reduce its own population into a pathetic minority?  This is directly in opposition to the spirit of the Indian constitution that in spirit and letter believes in protecting the rights of the weak as well as, especially of India’s minorities.

 

Further, a State that had the aspiration of regaining greater autonomy, dignity and beyond has suddenly been downgraded into a Union territory that will henceforth be under the direct control of the Centre.  This is a violation of a magnitude and kind in which the people of Jammu and Kashmir have never been consulted.  The division of Jammu and Kashmir and Ladakh into two separate Union territories are also likely to have far reaching implications in terms of loss of former ways of life and culture of a people who have lived together for such a long time.

It also is evident that the manner in which Kashmir has been suddenly seized, and thus, all attention being diverted in its direction is a clever move of the government to redirect public attention from the deep economic crisis into which the Indian economy is at present plunged.  The failure of the government to create jobs and to manage the economics of the Nation has led to a massive economic downfall, which is only more than apparent by the fact that important airlines have closed down, postal and BSNL departments, ONGC, PNB and other banks, and most public and private sector enterprises are in a state of collapse.  The job market is worst in the last 45 years. Demonetarization has hit back with alarming consequences.  Several public sector organizations which were hugely successful in the past are today unable to pay salaries with the dip in the Indian economy being of a grave nature. Within this scenario, Kashmir as a site of control has become a way for the government to prove its masculine power and deflect attention from the abysmal condition of the Nation’s economy.    

    As citizens of this country who have entrusted our allegiance and faith in its democratic processes and who pride ourselves to be members of the world’s largest secular democracy we are in deep pain and anguish today.  Indian nation which prided itself on its plural past, on the coexistence of innumerable traditions, cultures and religions and on the flow of horizontal democratic processes of decision making is today being converted into a hyper-masculine power.  In this time of acute crisis, we want to reach out to our fellow beings in J& K.  We believe that Kashmir’s future and the fate of Indian democracy are intricately tied up with one another.

 

   We demand that:

 

(1)   The three legislation introduced on 5th August, 2019, that is, the (i) The Constitution (Application to Jammu and Kashmir) Order, 2019 - Presidential order CO 272, (ii) Statutory Resolution introduced in the Rajya Sabha and (iii) The Jammu & Kashmir Reorganisation Bill be taken back.

 

(2)   The promises made to the people of Kashmir in 1947 be kept and any action with respect to Kashmir only be taken after consulting the Kashmiri people, and by taking their wishes into account.

 

(3)   A process of dialoguing with the people of J& K be initiated and sustained in which open expression of their wishes be encouraged and taken into consideration

 

(4)   All regions of J&K be demilitarized and troops be withdrawn with immediate effect

 

(5)      All means of communication, including mobiles, telecommunication services, internet be restored with immediate effect

 

(6)   Curfew and Section 144 be lifted immediately

 

(7)   Movement and free speech be made possible

 

(8)    All leaders, and others, taken into solitary confinement be released

 

(9)   All people taken into custody and those injured in the two weeks be released and provided with full medical and psychological support as well as economic compensation

 

(10)                    Normalcy of life be restored in the  whole of Jammu and Kashmir

 

(11)                    Protection of human rights and those of the environment and culture of the region be ensured in the short as well as long run

 

(12)                    The people of J&K be given the right to protect their Natural resources, including land, property, animals, culture, religion and ethnic heritage.

 

(13)                    Psychic rehabilitation and processes of psychological healing of those affected by the recent forms of State induced terror and those impacted by long term conflict in the region be prioritized.

 

(14)                    The government must work to foster interreligious and intercommunity harmony in the entire region.  The task of rebuilding intercommunity trust be prioritised and the emotional and economic wounds suffered in the past by all people of Kashmir, be they the Kashmiri Muslims or Kashmiri Pundits, Sikh and so on be attended to through long term psychosocial engagement and socio-economic rehabilitation.

 

(15)                    Dignity of life and peace be restored for the natives of the Jammu and Kashmir through all possible efforts.