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Mainstream, VOL LVII No 45, New Delhi, October 26, 2019

Unmaking of Constitutional Rights in Kashmir

Monday 4 November 2019, by Arup Kumar Sen

In his discourse on promises of the Indian Constitution, Rohit De argued that “constitu-tional engagement included large numbers of ordinary Indians, often from minorities or subaltern groups”. He further argued: “The Indian Constitution is the longest surviving Constitution in the post-colonial world, and it continues to dominate public life in India.” (Rohit De, A People’s Constitution: The Everyday Life of Law in the Indian Republic, Princeton University Press, 2018)

After exploring the promises of the Indian Constitution in the everyday life of the people, Rohit De made a significant observation in the Epilogue: “...constitutional narratives are forged both inside and outside courtrooms.” (Ibid.)

In fact, the abrogation of Article 370 and Article 35A was primarily floated outside the courtrooms and parliamentary bodies. The Bharatiya Janata Party (BJP) promised in its election manifesto, Sankalp Patra, for the parliamentary Elections in 2019 that after coming to power it will abrogate Article 370 and Article 35A.

What is happening in the Kashmir Valley prior to and after the abrogation of Article 370 on August 5, 2019, is gross violation of basic rights of Kashmiris, which are guaranteed in the Indian Constitution. A number of field reports from Kashmir bear testimony to it. What we have come to know very recently is really alarming. The rights activist Khurram Parvez said to the media that the government had arrested 5000 to 6000 people during the 75-day-old clamp-down in the Kashmir Valley, and many of them had been released under a bond (The Telegraph, October 20, 2019). To put it in the words of The Telegraph (ibid.):

Kashmir has lost not just its special status but also its azadi to speak. A bond the government is forcing detainees, including top politicians, to sign to secure their release bans them from speaking against “the recent events” in Jammu and Kashmir—a thinly veiled reference to the changes to the state’s constitutional status and the security  clampdown.

Senior lawyers and rights activists have described this bond...as “illegal” and unconstitutional.

The unmaking of constitutional rights in Kashmir reminds us of Gandhi’s statement in YoungIndia in 1931: “It has been said that Indian Swaraj will be the rule of the majority community, i.e., the Hindus. There could not be a grater mistake than that. If it were to be true, I for one would refuse to call it Swaraj and would fight it with all the strength at my command, for to me Hind Swaraj is the rule of all people, is the rule of justice.”

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