Kashmiri Pandit Body Supports Abrogation Of J&K Special Status; Says Article 370 Was Discriminatory

In yet another development in the case pertaining to the abrogation of Article 370, which the Supreme Court is set to start hearing from August 2, 2023, certain intervenors, advocating for the rights of Kashmiri Pandits, have filed intervention applications in support of the central government's decision to abrogate the special status of Jammu and Kashmir. Additionally, these applications have urged the Supreme Court to recognize the violence inflicted upon the Kashmiri Pandit community between 1989 and 1991 as a "direct or indirect consequence of the powers granted to the Jammu & Kashmir State government under Article 370". The applications have been filed by an organisation representing Kashmiri Hindus, the Youth 4 Panun Kashmir, as well as Virinder Kaul, a Kashmiri pandit social activist. 

The following arguments are raised in the applications–

I. Article 370 Fostered a Virtual "Mini Pakistan" at the Expense of Kashmiri Pandits

The applications contend that Article 370 disregarded the interests of the Kashmiri Pandit community and allowed the creation of a virtual "Sheikdom or Sultanate or Mini Pakistan" within India, funded by Indian taxpayers' money. They argue that Article 370 was a "dead letter" designed to create a situation where J&K became anti-minority and pro-majority, causing the exodus of the Kashmiri Pandit community since 1947. 

II. Presidential Power of Recognition Remained Intact Despite the Constituent Assembly's Dissolution

The applications assert that after the dissolution of the Constituent Assembly of Jammu and Kashmir in 1957, the powers to concur on amendments to Article 370 remained with the President and were never transferred to the state legislature. They argue that the Presidential power of recognition is sovereign, unconditional, and unconstrained. Consequently, the abrogation of Article 370 and 35A was constitutional and within the powers of the President.

III. Article 370 Was Always Meant to Be Temporary

The applications point out that Article 370 is part of the Indian Constitution's provisions for 'Temporary, Transitional, and Special Provisions,' indicating that it was intended to be temporary and not permanent. 

IV. Article 370 Was Discriminatory

The applications allege that Article 370 discriminated against various groups, creating two classes of citizens, one for Jammu & Kashmir and one for the rest of India, thereby violating the principle of equality. They cite several instances where laws in the erstwhile state disadvantaged women, non-permanent residents, and minorities. As per the applications, the revocation of Article 370 removed these discriminatory provisions and extended equal rights and protections to all residents. Some examples of such discrimination, as provided in the applications include the Jammu and Kashmir State Subject Law of 1927, which  prevented outsiders from settling in the erstwhile State. Arguing that even the wealth tax could not be imposed in the State, the application argues that the Urban Land Act, 1976, which is in force in the entire country, was not applicable to Jammu and Kashmir and as a result rich landlords, belonging to the majority community in the Valley, indulged in economic exploitation of the poor and the Indian citizens, who were non-State subjects and lived in the valley as they could not even secure loans from the financial institutions. It also adds–

"Article 370 and Article 35A discriminated against women marrying outside the erstwhile State. The children of Kashmiri women marrying outside the state lost permanent resident status and privileges. No such restrictions applied to men of the erstwhile State...Daughters had unequal inheritance rights compared to sons under the laws of the erstwhile State. This violated equal inheritance guaranteed under the Indian constitution...The erstwhile State specific laws did not provide for any anti- domestic violence laws. It had further not extended criminal laws dealing with cruelty, dowry deaths, and domestic violence that applied in rest of India. This deprived the women of the State legal protections."

V. Article 370 was not democratic

The applications argue that Article 370 and 35A did not uphold the democratic and secular character of the Indian Constitution. They claim that the state-specific laws allowed dominance of one religion and ethnic character over others, neglecting the heterogeneous and multi-ethnic identity of Jammu & Kashmir. The granting of permanent residency and exclusive rights under Article 370 was inconsistent with the characteristics of the Indian Constitution. As per the applications–

"It (Article 370) disregarded the federal & secular character of the Indian Constitution as a separate Jammu and Kashmir Constitution allowed dominance of one religion and ethnic character over the others, which includes Kashmiri Hindus, Gujjars, Bakharwals, Dalits, Sikh Community, Valmikis, Gorkha and refugees who had flown from west Pakistan and Pakistan occupied Jammu & Kashmir."

VI. Indian laws were not applicable in J&K

The applications contend that due to Article 370 and 35A, Indian laws were not applicable in Jammu & Kashmir, which hampered economic growth, trade, and occupation. The lack of legal recourse further disadvantaged minority communities, like the Kashmiri Pandits, who were deprived of their land and rights. Further, private industries could not be established as the J&K law did not make provisions for the citizens of India to own land within the State. This further hindered the right to trade and occupation and even lead to unemployment in youths. It adds–

"Thousands of Pandit families were deprived of their agricultural land. Even though one of the relatively few parliamentary seats allotted to the erstwhile State compared to its share of population due to constitutional exceptions. For example, in 2014, it had about 1% of India's population but only 0.6% of Lok Sabha seats."

The applications also state that the Ranbir Penal Code (RPC), which is applicable to Jammu and Kashmir, had provisions that were different from the Indian Penal Code applicable to the rest of the country. Referring to the Apex Court's landmark judgment decriminalising queer sex, the applications add–

"This verdict of the Hon'ble Supreme Court had not been welcomed by the erstwhile State of Jammu & Kashmir for the very reason that the Indian Penal Code was not applicable."

VII. Article 370 created conditions that enabled terrorism

The applications claim that Article 370 provided cover for the erstwhile state government to perpetuate terrorist violence and ethnic cleansing, particularly against Pandits and other minorities, enabling conditions for terrorism and violations of minority rights.

The intervention applications support the central government's stance on the abrogation of Article 370 and request the Supreme Court to acknowledge the historical atrocities faced by the Kashmiri Pandit community. 

Recently, the Union Government had filed an affidavit stating that J&K witnessed immense socio-economic progress after the abrogation of its special status. However, the Supreme Court said that the post-decision developments have no bearing on the constitutionality of the decisions and that it will go by only the merits of the matter.