To accept Kashmiriyat as a basis for special treatment would be to devalue other regional identities.


Rajmohan Gandhi, the grandson of the Mahatma, writing in a major newspaper (Way Forward in Kashmir, Indian Express, 10 June) posited: “Modi, Amit Shah and their colleagues, the Opposition and the Indian public should all reflect carefully before the government tries to implement the BJP’s recent promises to abolish Articles 35A and 370… Let us be careful before reneging on our basic principles and on constitutional guarantees.”

But are we “reneging on our basic principles and constitutional guarantees” or are we, by maintaining the status quo, perpetuating injustice, inequality and surrendering to fanatical fundamentalists in direct contradiction of our secular and democratic principles?

This is the burning question that cries out for an answer in the context of Kashmir.

Kashmir is India’s ugly faultline; a deadly compendium of in your face contradictions that strike at the very root of a secular democratic republic; a regional domain where the Constitution inadvertently approves of inequities and unjustly and undeservingly confers a special status on a region without valid cause; an area where violent terrorism prevails and a religious xenophobia rules the roost.

To begin with, the concept of Kashmiriyat as the basis of separatism is a flawed argument that militates against the very “idea of India”. India is a vast mosaic with cultural and ethnic variations; a shade of cultural variation alone cannot be the basis for a call to secede; a concept if applied nationally would engender a thousand mutinies and splinter India into a thousand fragments, dispossessing millions of their rights and displacing multitudes from their homes.

To accept Kashmiriyat as a basis for special treatment would be to devalue and diminish the other regional identities; in other words, it is to say that a Kashmiri is superior to a Guajarati, Bengali or Kannadiga, etc. That cannot be allowed to stand.

Moreover, Article 370, which confers special status on Kashmir, was not the outcome of popular consensus. It was the brain child of an ambitious, scheming Sheikh Abdullah (the grandfather of Omar Abdullah), who envisioned himself becoming the supreme leader of a sovereign state with the aid of a special status accorded to J&K. It was a crafty ploy that he managed to execute with the help of a pliant Jawaharlal Nehru.

The discriminatory nature of Article 370 was evident right from the beginning, leading to a chorus of protest in the Constituent Assembly. The Urdu poet, Maulana Hasrat Mohani queried: “Why this discrimination please?” Dr Babasaheb Ambedkar, the chairman of the drafting committee denounced the idea and several members balked at this rationally challenged proposition. Only when Gopal Swamy Aiyangar assured them of its temporary nature did they agree: “It is the hope of everybody here that in due course, even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other states.”

Therefore, Article 370 was never conceived as a permanent statute. It was a transient decree, as is evident from its inclusion in the Constitution under the section captioned, “Temporary, Transitional and Special Provisions”.

Subsequently, several other provisions of the Indian Constitution were made applicable to J&K by an amendment inserted into the Constitution by a Presidential decree. Article 35A was one of these additional changes which spawned a set of discriminatory laws.

Listed below are some of the practical implications of these discriminatory laws:

* By denying Indians from other states to own property in J&K, these laws violate the fundamental right to equality enshrined in Article 14 of the Indian Constitution that states: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

* A Kashmiri woman marrying a non-permanent resident or outsider loses all succession rights while a Kashmiri man does not: a gender inequality not consistent with Article 15 that prohibits discrimination on basis of religion, caste, race or place of birth.

* Also, this gives rise to a Quixotic situation wherein a Pakistani citizen can buy property in J&K, while a legitimate Indian citizen cannot; the J&K Constitution grants residency rights to Kashmiris living in POK overriding security concerns.

So, can a state which is an integral part of India enact laws that violate constitutionally sanctioned fundamental rights, particularly gender inequality? The answer is a big no.

On a cold eerie night, 19 January 1990, notoriously known as the “Kristallnacht of the Kashmir Pandits”, thousands of them were driven out of their ancestral homes to the blood-curdling Hindu-phobic cries emanating from the rooftops of mosques spread out across Kashmir. Since the separatist movement began, at least 1,000 Pandits have been killed, roughly 16,000 homes have been burnt and 350,000 have been displaced: these figures sum up the enormity of this human calamity—an undeniable act of ethnic cleansing.

Our secularism died an ignominious death on that fateful day of January 1990 and remains in limbo; the fact that the Kashmiri Pandits are still refugees in their own land 30 years later is a shameful reminder to one and all, including our governments, of the failure of secularism when it pertains to its Hindu citizens in Kashmir.

In summary, Article 370 violates the principle of equality, Article 35A endorses gender discrimination, and ethnic cleansing of Kashmiri Pandits makes a mockery of our secularism—all this must change if India has to maintain its credibility as a secular democratic republic that guarantees liberty and equality to all its citizens. The current government must act sooner rather than later.

In 1947, the modern state of India, through the Constitution, only reaffirmed what our tradition has always stood for: equality and plurality. Great civilisations fiercely hold on to their core values through challenging times, periodically correcting the inequities that creep into its corpus. This is one such critical juncture in our history that affords an opportunity for rectification. We are at a crossroad and that crossroad is Kashmir.

Will we crumble in the face of manipulative and coercive forces as we have done in recent times, implode, signalling a terminal decline in our civilsational core values in the central part of our sub-continent—a repeat of what has happened in the northwest and eastern parts (now Pakistan and Bangladesh)? Or will we fight back to re-establish the plurality and equality that our civilisation has strived to ensure since its inception. This is the question which is at stake today and this is what all right-minded Indians including Kashmiris must mull over.

Vivek Gumaste is a US based academic and political commentator.


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