Human rights lawyer, activist, teacher and author NANDITA HAKSAR responds to questions on developments in Jammu & Kashmir from BULA DEVI. She has authored several books on Kashmir, the Northeast and Nagaland, including ‘Many Faces of Kashmiri Nationalism’.
Here are excerpts from the interview
When did you last visit Kashmir? Have you been back after August 5?
I visited Kashmir when my book, Many Faces of Kashmiri Nationalism, was released in Srinagar in 2015. After that I have not visited Kashmir. No, I have not been able to visit Kashmir after August 5, mainly because I have not been well.
As a lawyer who is conversant with Kashmir’s history and special status, how would you describe the NDA government’s move to abrogate Article 370 and Article 35 A?
Strictly speaking, Article 370 has not been abrogated; it has been made non-operational. As has Article 35 A of the Constitution (Application to Jammu and Kashmir) Order, 1954. (This Order was adopted in 1956 by the Jammu and Kashmir Constitution).
First of all, it should be noted that the NDA was supported by many parties who are not traditionally supporters of BJP or the NDA and yet they allowed the special status of Jammu & Kashmir to be taken away.
Secondly, the procedure by which the entire process was done has been given a very serious legal challenge by eminent people who have filed petitions before the Supreme Court of India.
It sounds a bit technical but people should understand how the government has sabotaged the provisions of the Constitution. It has added a sub clause to Article 367, which deals with interpretations of the Constitution.
Article 370(3) provides that via a Presidential order, the entire article can cease to be operative provided that a recommendation is made by the Constituent Assembly of the State.
The amendment to Article 376 changes the words “constituent assembly of the state” to “legislative assembly of the state.”
Since the state assembly presently does not exist, under Governor’s Rule, the recommendation of the Governor would be analogous to the recommendation of the Legislative Assembly to pass C.O. 272.
Legal experts and others say that such an amendment to Article 367 is not valid and the Governor, as a representative of the President, cannot replace an elected Legislative Assembly and give consent to the ceasing of the operation of Article 370.
Third, provisions for ensuring the special status, specifically Article 370, were diluted by the Order of 1954 passed during the Congress government.
Keeping all these in mind, the way the BJP has nullified the special status of Jammu and Kashmir by the unprecedented clampdown and repression, the arrests and detention of even leaders who have risked their lives for India has succeeded in alienating the entire population of Kashmir.
The Supreme Court has shown little urgency to address the question of constitutional validity. With the lines between the Executive and the Judiciary getting blurred, are you hopeful that the court could take a different view than that of the government?
I cannot predict what the Supreme Court will do. But the independence and dignity of this institution has been systematically eroded by the present dispensation. There is little hope but hope there is that the Supreme Court will find the nullification of Article 370 invalid and unconstitutional.
As a Pandit from Kashmir, how do you see the triumphalism among Pandits outside the Valley? Are they justified in believing that somehow justice has been done and they would now be able to return to the Valley?
Triumphalism is not only among the Kashmiri Pandits. In fact, even Pandits in senior positions such as Air Vice Marshal Kapil Kak, Amitabh Mattoo and others have condemned the move outright.
The most vociferous group of Kashmiri Pandits who celebrated were the ones who have taken up residence in the United States of America and are not even likely to come back to India, let alone go to Kashmir.
What do you think does the future hold? Is the Kashmir issue settled once and for all?
The future will be decided by Kashmiri people, not the super powers. They have already expressed their rage by writing slogans on apples. And the boys who have been imprisoned will not forget the humiliation of the clampdown or how so many indulged in triumphalism. They will want justice and it will not be in the courts.
National security has been invoked to justify the measures. And even the Supreme Court appears to be convinced that the lockdown was necessary and was a valid measure from the government. Would you agree?
I am not a security expert. But senior people in the field have warned that the consequences of nullifying Article 370 are going to be adverse, to say the least.
Ashok Bhan, the former Director General of Police in Jammu and Kashmir, has warned: “The abrogation of the special status accorded to J&K and re-organisation of the state will add to alienation, mistrust and the questioning of the government’s democratic credentials in the Valley. While it will be hailed in large parts of Jammu province and in Leh district, both condemnation and appreciation will be along religious lines.”
Similarly, Alok Joshi, Member, National Security Advisory Board (NSAB) and former Secretary, Research and Analysis Wing (RAW), has warned that nullification of Article 370 could lead to greater involvement of Pakistan. He has said: “With talks with the Taliban reaching a critical point and the Pakistani establishment leveraging these talks, would Pakistan be encouraged towards adventurism on the Kashmir front? Prudence demands that we prepare for a more active involvement of the Pakistani deep state in Kashmir and beyond.”
People do find it unusual for the Supreme Court to give permission to Indian MPs to visit Kashmir. No such permission was either sought or granted in the case of the members of the European Parliament. Would you say the court exceeded its brief?
Individual MPs like Sitaram Yechury were given permission to visit Kashmir. And yes, it is strange that members of European Parliament, all of them belonging to an ideology very close to the ideology of the ruling party, were allowed to visit Kashmir.
As I said the independence and dignity of the Supreme Court has been undermined by the political developments in our country and soon there will be no place we the citizens of India can go to redress our grievances.
What are the chances of the Kashmir issue spiralling into the sphere of international law and relations? India is obviously stating that it is an internal matter but what do you anticipate?
Human rights is an important tool of western foreign policy and it has been used to violate the principle of sovereignty of states. It can be used again to turn Kashmir into an international issue. I think the Union Home Minister anticipated this when he said human rights is a western invention. But India is a signatory to international human rights treaties and has obligations to comply with them.
Already Kashmiris have started comparing their situation to the plight of the Palestinians. They see it as an international conflict. Besides, whether states interfere of not, already there have been foreign militants who have been going to Kashmir, not only from Pakistan but also other countries.
Is there a way for the government to back off? The PM did say that the measures are ‘temporary’. Would you trust the government to restore the status quo?
There are many ways the government can retract. But right from the time Bharatiya Jana Sangh was founded, it has worked towards the abolition of the special status of Jammu and Kashmir. It is a part of its anti- Muslim agenda. It is integral to their idea of Hindutva or making of a Hindu State.
What has India lost or gained in Kashmir after August 5?
India and Indians have lost an opportunity to be the beacon of hope for a world divided along lines of religion. We lost the chance to show that it is possible for people practising different religions to live together and respect each other. So many Kashmiris were won over to India because of this ideal and now the ideal lies broken. It will take decades to re-build the foundations of such a society.
The government appears to be trying to promote new and younger leaders in Kashmir and have co- opted some leaders like Muzaffar Baig…
Muzaffar Baig is asking for extension of Article 371 to Jammu and Kashmir. In other words, it would mean that Article 35A should be re-worked into the Indian Constitution. If the government had done everything through a democratic process and not played around with the Constitution, perhaps some solution could have been found. I do not know. Now it is a matter of speculation.
Why do you think allegations of human rights violations in Kashmir have not had much traction either before or after August 5? Is it due to the weaknesses of the media or the inactiveness of the civil society?
The media has, with some honourable exceptions, already indulged in self-censorship. We are not getting reports from Kashmir. There have been fact finding teams who have gone to Kashmir and come back with reports of children, mainly minor boys, being detained in jails without informing their parents; large-scale arrests filling up the jails; curfews being enforced in a way so that people have not been able to reach hospitals; children living in fear and the entire economy being affected.
Have you been able to get in touch with your friends in Kashmir? Do you still have relatives there? And what are your hopes and aspirations for Kashmir?
My ancestors left the Valley in 1820 and we did not go back. We have no roots in Kashmir. We as a community do not speak Kashmiri or have the same culture as the Kashmiri Pandits who live or lived till 1990 in the Valley.
I dream of the day when every community feel India belongs to them equally; and I have worked all my life towards this goal. Many of us have worked for the realisation of that dream and that includes many Kashmiris. The latest events are tragic and gut wrenching.