The tortuous thicket of laws, constitutional provisions, presidential orders, political history and legal mystifications surrounding Article 370 and Article 35A make it difficult to navigate through recent debates about its abrogation in an informed way. This series of three essays by Shrimoyee Nandini Ghosh, lawyer and legal researcher, which we published last year, aimed to be a somewhat eclectic guidebook— at times proffering a no frills step-by-step road map, at others traversing some rather more unfrequented and adventurous legal diversions.
Tag: Article 370
The abrogation of Article 370 has been accompanied by many colossal whoppers about its politics and history, and deliberate disinformation about the consequences for legal and constitutional rights and status. Yet in Kashmir, from where I write this, none of it matters. It is all of a piece with India’s long history of lawlessness and lies in the name of law. In the face of overwhelming ontological insecurity and terrifying state brutality, no one, not even the lawyering community (such of them as are not busy filing habeas corpus and bail petitions or themselves hiding from arrest), can be bothered to pore over the niceties of how exactly the deed was accomplished. With no Internet access many Kashmiri lawyers I speak to have not so far been able to read the full text of the two Constitutional Orders that altered their fate. What, after all, is a legal sleight of hand or an elaborately constructed constitutional lie when you have not spoken to a beloved daughter in two months? Who cares if Tulsi Gabbard (“who?”) or the late Arun Jaitley (“he died?”) misrepresent the nature of property rights that daughters enjoyed under your one-time, so-called semi-autonomous legal system? Many had not heard that this was even a thing. When I informed them, seething with indignation, they shrugged. “Yes” they said. “They lie.”
It is worth asking whether the abrogation of Articles 370 and 35A will ensure the safe return of the more than 100,000 Kashmiri Pandits to the idyllic homes they left behind in the 1990s, on their “own terms”. If those terms entail a return not merely to the territory of Kashmir but to any semblance of the cultural and social relations that had once made Kashmir home, then jubilating Kashmiri Pandits might want to ask whether their native home is being secured or only further eroded by the recent decision.
In a strange twist, the removal of Article 35 A, which was important to Kashmiri Pandits’ own early mobilisation to secure government jobs for themselves from Indians of the plains, may now well turn the erstwhile Kashmiri Pandit native into a settler. Pandits who have nursed dreams of return must know that they will arrive not as neighbours, but as a demographic stick with which to beat local Kashmiri Muslims and pave the way for a settler-colonial project designed to transform India’s only Muslim-majority state into a Hindu-majority one.
At this juncture, it is important to recollect that India is a union of states with varying legal histories. Article 370, which enshrines the specificities to the state of Jammu and Kashmir, is a recognition of this political diversity. Goa, like Kashmir, has a unique legal history. Unlike Kashmir, however, Goan specificities did not merit any constitutional recognition. Subsequent to the annexation of the territory, Goans were not asked, via a plebiscite, what they wished their political status to be, nor was a Constituent Assembly set up, as was the case in Kashmir and some of the other princely states in the process of accession to India. India simply asserted its power and extended its Constitution to Goa, and erased pre-existing citizenship.
The tortuous thicket of laws, constitutional provisions, presidential orders, political history and legal mystifications surrounding Article 370 and Article 35A make it difficult to navigate through recent debates about its abrogation in an informed way. This series of three essays by Shrimoyee Nandini Ghosh, lawyer and legal researcher, aims to be a somewhat eclectic guidebook— at times proffering a no frills step-by-step road map, at others traversing some rather more unfrequented and adventurous legal diversions. In this first essay, Shrimoyee provides a legal-historical guide to terms like 370, 35(a) and the tricks, which were played to make these history.”