Excluded from Law-Making for Two Years, Kashmiris are Angry and Alienated

Unprecedented and unparalleled legal changes have taken place in the erstwhile state of Jammu and Kashmir since 2018 without their consent or even involvement.

On August 5, 2019, the Narendra Modi government revoked Jammu and Kashmir’s special status and statehood, dividing it into two union territories. In this series – ‘One Year in a Disappeared State’ – The Wire will look at what the last year has meant and what the region looks like now. 

Srinagar: Jammu and Kashmir has been without an elected government for the past two years, but its legal framework has seen unprecedented and unparalleled changes during this period, starting from the imposition of Governor’s Rule in June 2018.

Laws were tweaked to disempower the people of J&K and undermine its institutions much before the Bharatiya Janata Party-led Central government read Article 370 of the constitution and dismembered J&K into two union territories in 2019. The laws continue to be tweaked even now.

The latest was seen on July 17, when the administrative council of the J&K union territory proposed changes in two laws that govern construction to declare a portion of the land held by the armed forces as “a strategic area” so as to allow construction activities within it.

Illustration: Pariplab Chakraborty

The recurring theme in all this rewriting of laws is that the inhabitants of J&K, for whom the laws are being written, have no role to play in decision-making processes.

This new legal structure is being erected and invented at a sustained pace at frequent intervals, triggering widespread resentment among political and other groups in J&K.

Legal changes in Governor’s Rule

The process of rewriting laws began as soon as the Mehbooba Mufti-led government in J&K collapsed after the BJP withdrew its support to it, citing a “deteriorating security situation” in the state.

After the imposition of Governor’s Rule on June 20, 2018, as many as 56 Governor’s Acts were enacted to amend existing laws and to implement new laws before the state came under the direct rule of the Union government in December 2018.

These laws were enacted under sub-section (4) of section (92) of the J&K constitution, which empowered the governor to exercise the powers of the state legislature in the absence of an elected government or in case of the dissolution of the assembly. Before June 2018, governors of J&K rarely exercised these powers when the erstwhile state came under Governor’s Rule.

The six-month period between June and December 2018 also saw the amendment of the controversial Public Safety Act (PSA) to allow local PSA detainees to be lodged in jails outside Jammu & Kashmir. Earlier, this was impossible. This new provision was rampantly used to lodge Kashmiri detainees in the jails of Uttar Pradesh and Haryana after the reading down of Article 370 by the Centre on August 5, 2019.

The Governor also repealed the Jammu & Kashmir State Lands (vesting of ownership to the occupants) Act, also known as Roshini Act, which allowed ownership rights of state land to be transferred its occupants, subject to the payment of a fee.

Also read: One Year On, it is Clear India is Occupied By Kashmir

This move was made after Ikkjut Jammu, a group formed by one of the advocates who had defended the accused in the Kathua rape case of January 2018, sought its repeal to “defeat the jihadi war in the form of demographic invasion of Jammu”.

Between June and December 2018, Jammu and Kashmir’s human rights law – Protection of Human Rights Act, 1997 – was also amended to restrain the State Human Rights Commission from entertaining complaints of human rights violations that had taken place more than a year earlier.

The amendment was justified by the authorities on the grounds that it would bring the state law on par with the human rights law at the Centre.

In a move aimed at weakening the J&K government’s remaining grip on the Hill Councils of Leh and Kargil, the governor amended the Ladakh Autonomous Hill Development Council Act, 1997, to clip the voting rights of nominated members and give more administrative and financial powers to these bodies.

Changes in President’ Rule

When the state came under direct Central rule in December 2018, the Centre applied the Constitution (Seventy Seventh Amendment) Act and Constitution (One Hundred and Third Amendment) Act to J&K on the concurrence of the governor – a person appointed by the Centre.

The route adopted for the application of these constitutional amendments was questionable, because an amendment made in the Constitution of India before August 5, 2019, could not be applied to J&K without the concurrence of its government.

Changes on August 5, 2019

On August 5 last year, severe restrictions were placed on J&K and its democratically-elected leaders were placed in detention when the BJP-led Central government unilaterally read down Article 370 and bifurcated the state into the union territories of J&K and Ladakh.

These arbitrary constitutional changes removed J&K’s special status as well as the exclusive rights of its permanent residents to contest state elections, apply for government jobs, get seats in professional colleges and buy and own land.

The changes were effected through two Presidential Orders – C.O. 272 and C.O. 273 – and the J&K Reorganisation Act, 2019.

Also read: A Year After Abrogation of Article 370 and 35A, the Outcomes Are Barely Understood

Presidential Order C.O. 272 was issued on the concurrence of Satya Pal Malik, the then governor of J&K, to apply all provisions of the Constitution of India to Jammu & Kashmir.

In the same order, Articles 370 and 367 of the constitution were amended to provide that ‘Constituent Assembly’ shall mean ‘State Legislative Assembly’ and ‘State Government’ shall mean the ‘Governor of the State’.

Subsequently, Presidential Order C.O. 273 was issued to declare that all clauses of Article 370 ceased to exist on the basis of a resolution approved by parliament.

This was despite the fact that clause (3) of Article 370 provided that recommendations of the Constituent Assembly of the state would be necessary before the President of India could declare that any provision of Article 370 would cease to exist.

This order also scrapped all the key provisions of the J&K Constitution, which was adopted by the state’s Constituent Assembly in 1956.

The Reorganisation Act, 2019, partitioned J&K into two union territories, made 109 Central laws and retained nearly 170 state laws.

After reorganisation

Laws continued to be changed after parliament approved the reorganisation of J&K.

Hours before J&K and Ladakh began functioning as separate union territories, the President of India made all Central laws applicable to the union territory of Jammu & Kashmir.

“All those Central laws, Ordinance and rules which are applicable to the whole of India except the existing State of Jammu and Kashmir immediately before the appointed day, shall now be applicable to the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh in addition to the Central laws specified in TABLE – 1 of the of Fifth Schedule to the principal Act,” reads the Jammu & Kashmir Reorganisation (Removal of Difficulties) Order, 2019, notified on October 30 last year.

Major changes were effected in the state laws on March 30, 2020, when the Ministry of Home Affairs unveiled the J&K Reorganisation (adaptation of state laws) Order, 2020.

Under the order, the Jammu and Kashmir Civil Services Decentralisation and Recruitment Act, 2010, was amended to open J&K’s government jobs to those from beyond the erstwhile state.

Also read: Year After End of 370 and 35A, Kashmiris Fear a Fraud Bigger Than Rigged Election of 1987

According to these amendments, a person who has resided in J&K for 15 years or has studied there for seven years and appeared in class 10 or class 12 exams in an educational institution located in J&K will be eligible for employment.

The amendments also make the children of Central government employees who served in J&K for 10 years eligible for jobs.

Before August 5, 2019, J&K’s permanent residents had exclusive rights over government jobs advertised by the state government.

Certain changes have also been made in a few state laws through the J&K Reorganisation (adaptation of state laws) Order, 2020, to undermine the institution of chief minister.

According to these amendments, the lieutenant governor (LG) replaces the chief minister as chancellor of the Islamic University of Science & Technology (IUST), the Baba Ghulam Shah Badshah University (BGSBU) and the Cluster Universities of Jammu and Srinagar.

Now the administrative council headed by the LG is proposing changes in state laws that were retained under the J&K Reorganisation Act.

On July 17 this year, the administrative council agreed to the proposal of amending the Control of Building Operations Act, 1988 and the J&K Development Act, 1970 to provide a special dispensation to carry out construction activities in strategic areas.

Rage and despair in J&K

These unprecedented changes in laws have led to widespread anger and alienation in J&K over the past two years.

Member of parliament and former high court judge Hasnain Masoodi said that the reading down of the Article 370 and the reorganisation of J&K are illegal and unconstitutional acts.

“All the modifications carried out in the laws and all the processes like delimitation are unconstitutional. We have already challenged the August 5, 2019, decisions in the Supreme Court,” he said.

According to Naeem Akhtar, senior leader of the People’s Democratic Party and former state minister, the BJP is using coercive methods to implement its agenda in J&K.

“They have ensured that there is no resistance to their policies. They are using methods like persecution, threat of persecution, use of force, arrests, house detention to fulfil their agenda,” he said.

“The BJP is showing its Hindutva voters that they are beating and humiliating Kashmiris every day,” Akthar added. “This state had joined India in the hope of saving its identity, its culture. But we are now seeing the opposite happen.”