When India and Pakistan gained independence, Jammu and Kashmir chose to retain an independent status for the state. While the state was undergoing standstill agreements with the two newly independent countries, Pakistan attacked the state. Maharaja Hari Singh, the then maharaja of the state, signed an Instrument of Accession with India in order to be able to protect his state.
A GLANCE AT ARTICLE 370
Article 370 of the Indian Constitution gives a special status to the state. Under this article it was declared that the Parliament can make laws for the state only over matters mentioned in the Instrument of Accession. This included Defence, Foreign Affairs, Communications and Finance. It also stated that other matters in the Union and State list could be governed only if specified by the President in concurrence with the government of the state. It also stated that the President could, by public notification, with the state’s Constituent Assembly’s recommendation, declare that this article shall cease to be operative or shall be operative in accordance with modifications and exceptions, as specified by him.
Under the Indira-Sheikh accord signed in 1974 the strengths of the state’s powers were further defined.
CURRENT LEGAL STATUS
The state of Jammu and Kashmir has its own separate Constitution. It is known to have a special status within Indian territory. On certain aspects of law it varies from the rest of India. For instance:
Right to Property
It is still a Fundamental Right for the people of Kashmir while it is not so for the rest of the people of India. Besides this, Indian citizens from other states and women who marry men from any state other than J & K are not permitted to buy land or hold any property within the state.
Moreover, the Fundamental Rights, Fundamental Duties and Directive Principles of State Policy are inapplicable to the state.
The Centre can’t declare Financial Emergency in J & K. To declare emergency on grounds of internal disturbance or imminent danger, it can be done by the President only in concurrence with a request made by the government of the state. So, the only ground where the centre can move unilaterally to declare emergency is that of War and External Aggression.
CRITICISM AGAINST SOME LAWS in Kashmir
Despite such special status, India comes into the line of fire for the laws prevailing in the state. Naturally, Pakistan is at the forefront of the critics. The National Assembly of Pakistan has openly criticised the laws of J & K and has even gone to the extent of declaring them draconian in nature. The Assembly even says that the Kashmiris are subjected to the worst kind of human rights abuses. Some such laws that often face the heat are the following:
JAMMU AND KASHMIR PUBLIC SAFETY ACT (PSA), 1978
Under this act the state has been empowered to arrest a person without trial for a period of two years under the pretext of maintaining public order. The Act has been regarded as unjust as provisions like the right of the accused to appear before a magistrate within 24hours, fair trial in public, access to counsel, ability to meet relatives, cross examination of the witnesses, appeal against conviction, etc. Amnesty International and other human rights organizations have said people tried under these acts have high risks of being tortured. Furthermore, Human Rights Watch till date maintains that grave injustice was committed against Shabir Ahmed Shah a peaceful campaigner for the right to Kashmiri self-determination who spent 22years in jail, in which most of the period was under preventive determination. All this was done only because he called for strikes, issued leaflets and called for the boycott of the Republic Day and Independence Day. The fear that some scholars have expressed is that continuing with such an act will lead to further alienation of the Kashmiri population, instead of healing their wounds.
TERRORIST AND DISRUPTIVE ACTIVITIES ACT (TADA), 1990
Similar to the PSA, this Act allowed detention for a period up to 1 year on grounds of disrupting the territorial sovereignty and integrity of India and even on the suspicion of committing such acts in the future. This Act had given special powers to the security forces in the use of force, arrest and detention and was thus extensively used in Kashmir. Although the Act was repealed in 1995 the concern that is voraciously expressed is that the cases filed under this Act may be applied to the preceding trials which are in connection to the offences committed under the said Act prior to 1995. Kashmir is said to have arrested 19,060 persons under TADA. The Act has been referred to as a black law on numerous occasions.
JAMMU AND KASHMIR DISTURBED AREA ACT, 1990
The Act permits the Central Government or the Governor to declare a part or the whole of the state as disturbed. Now what happens under this disturbed status is that a Head Constable or any other official of the same level has the power to use force or shoot (and kill) under the pretext of protecting and thereby maintaining public order. In addition to this any magistrate or police officer holding a rank of a Sub-Inspector in the least can, if he deems it to be necessary, destroy any arms dump or fortified position from where armed attacks are made or are attempted to be made or is considered to be an area of hideout for armed gangsters. What’s even more interesting is that no suit, prosecution or legal proceeding can be instituted against any individual, who has acted as per the above two provisions, except with the previous sanction of the State Government. Thus, this Act is often viewed by Pakistanis and also Kashmiris as a means of oppressing the inhabitants of the state and leaving them in constant fear of the state officials.
ARMED FORCES (JAMMU AND KASHMIR) SPECIAL POWERS ACT, 1990
This is an Act that has remained a bone of contention between the people of Kashmir and the Central Government since its enactment. Working in relation to this Disturbed Areas Act, the Armed Forces Special Powers Act extends sweeping powers to the military forces when the area has been declared as disturbed. The armed forces can be used in aid of civil authorities. Besides this, even a non-commissioned officer can search any place, seize any vehicle or fire at any person or arrest him without any obligation of disclosing the grounds of his arrest. The criticisms that arise against the provisions of this Act are that it legally facilitates arbitrary arrests and detention as well as extra judicial executions and the destruction of property.
What’s worse is that although the Act provides for the arrested individuals to be brought to the nearest police station this is seldom done. Moreover, the security forces have been told to act on the instructions of the civil administrative authorities but this isn’t what happens in reality. Possibly, the biggest criticism that the Act faces is against the immunity from prosecution that protects the armed forces officials no matter what grave crimes they commit.
Amnesty International and Human Rights Watch have expressed their opinions time and again that the Act has proved to be counter-productive as it has heightened the alienation of the Kashmiris to alarming levels. Despite the fact that many voices have stated that the Act has only worsened the situation, no effort has been made to review the Act. The Act has also failed to quell violence completely. It is regarded as a draconian law that the Britishers had imposed to instil fear within the Indians which has been embodied within the state of Kashmir.
The above four Acts are the ones that are condemned most often. Other than this a few other Acts which often attract negative light are the Indian Telegraph Act, the Official Secrets Act, the National Security Act, the Unlawful Activities (Prevention) Amendment Ordinance and the Prevention of Terrorism Act.
The objective of Article 370 was to give a temporary special status to J & K and consequently incorporate the state with the rest of the country and maintain harmony across the region. But what has happened in practise is that the temporary status is far from being repealed. In addition to this the laws that have been enacted have come under fire not only from Pakistan but also from the secessionist activists within the country whose voices have subsequently reached the ears of the inhabitants of the state. All this has led to a certain level of detachment of the people from the rest of the nation. Sadly, they come to perceive the legal set up as one that tends to curtail their freedom and as the causal factor of the majority of their sufferings.