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We are at a crossroad and that crossroad is Kashmir

June 18, 2019 22:01 IST

'The current government must act sooner rather than later,' asserts Vivek Gumaste.

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 religious xenophobia rules the roost.

This is the glaring and horrendous reality of Kashmir today: The very antithesis of what the democratic secular republic of India stands for.

But yet a clutch of activists that include intellectuals, politicians and political commentators have counselled caution, arguing fervently that change of policies affecting Kashmir would be tantamount to an assault on democracy and secularism.

Rajmohan Gandhi, grandson of the Mahatma, writing in the Indian Express, 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.

 

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; all areas despite their distinctive characteristics have been successfully moulded together to create an impressive modern pluralistic State that celebrates diversity but yet maintains a powerful adhesive that irrevocably and voluntarily binds every state together.

A shade of cultural variation alone cannot be the basis for a call to secede; a concept if applied universally 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 that exist in India; in other words, it is to say that being Kashmiri is superior to being 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 brainchild of an ambitious, scheming Sheikh Abdullah who envisioned himself becoming the supreme leader of a sovereign State with the aid of a special status accorded to J&K, making it a country within a country with its own distinct flag, emblem and constitution.

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, chairman of the drafting committee, denounced the idea and several members balked at this rationally challenged proposition.

Only when Gopalswamy 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 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 and allowed the J&K legislature to define who is a permanent resident and consequently who is eligible to vote, work for the state government, own land, and for college admissions.

Article 35A spawned a set of laws that were discriminatory in nature towards other Indians, and Kashmiri women in particular.

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 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 January 19, 1990, notoriously known as the Kristallnacht of the Kashmir Pandits, thousands of them were driven out of their ancestral homes to the cries of: 'Kashmir mein agar rehna hai, Allah-O-Akbar kehna hai (If you want to stay in Kashmir, you have to say Allah-O-Akbar)'; 'Yahan kya chalega, Nizam-e-Mustafa; (What do we want here? Rule of Shariah)'; 'Asi gachchi Pakistan, Batao roas te Batanev san (We want Pakistan along with Hindu women but without their men).'

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.

Close to one million Kashmiri Pandits inhabited the valley in the early 1900s and constituted 15% of the population. Today, no more than 3,000 remain, making up barely 0.15% of the population, an undeniable act of ethnic cleansing

Our secularism was murdered 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 pointed reminder of the failure of secularism when it pertains to its Hindu citizens.

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 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, signaling a terminal decline in our civilsational core values in the central part of our sub-continent -- a repeat of what has happened in the north west 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.

US-based academic and political commentator Vivek Gumaste is the author of My India: Musings of a Patriot.

Vivek Gumaste
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