Mahbooba Mufti, the Chief Minister of Jammu and Kashmir and President of People’s Democratic Party had been detained for the past 14 months and thereafter charged under the Public Safety Act, the genesis of which can be traced to 1978. She was finally released on Tuesday after a year and thereafter in an audio message she commented that people must continue struggle for the resolution of Kashmir issue and what had been snatched by Delhi must be given back. “I have become free today after more than a year. During this time the black decision of August 5, 2019, black day, would always pain my heart and soul. And I realise that the people of J&K would have the same feeling. Nobody among us can forget the day’s robbery and humiliation,” she said in the 1 minute 23 second audio message. She was charged under section 107 of the Criminal Procedure Act. Under this law, multiple detentions can occur without trail which can extend up to three months. She had been moved to her own residence on April 7 which had been declared as a subsidiary jail by an official order. Her daughter, Iltija Mufti has even challenged the detention and moved to the Supreme Court under Habeas Corpus which is a writ requiring a person to be brought to the court, especially to ensure the person’s release unless lawful grounds have been proved for arresting. Her petition was scheduled for listening on March 18 but had to be delayed due to the imposition of the nationwide lockdown. Politicians including Farooq Abdullah and son Omar had been arrested to thwart backlash over the decision of abrogating Article 370 by the Central Government. Immediately, after her release Omar Abdullah tweeted, “I’m pleased to hear that @ MehboobaMuftiSahibahas been released after more than a year in detention. Her continued detention was a travesty & was against the basic tenets of democracy. Welcome out Mehbooba”. It is the Aug 5, 2020 and the anniversary of the revocation of Article 370 and a curfew has been imposed. Indeed, nothing has changed since 5th August 2019 as communications still continue to be cut off in Jammu and Kashmir on the pretext of development that has been rhetoric in nature.Protests sweep Jammu and Kashmir.
Yet, the narration of history has been altered by the Bharatiya Janata Party on 5th August, 2019 with the scrapping of Article 370 and 35A after which it was designated as an Union Territory, namely Jammu and Kashmir and Ladakh, as the former has now ceased to be a state. A complete shutdown of internet services was announced by the Central Government. Armed forces were also deployed to keep Jammu and Kashmir under supervision. Human Rights violations have occurred throughout when innocent boys have been detained in jail, believing them to be militants linked to Pakistan’s terrorist forces. Protests have been silenced and freedom of speech prohibited. The United Nations Educational, Scientific and Cultural Organization (UNESCO) have stressed that the highest numbers of shutdown have occurred in India. Civilians have been killed in encounter by the Indian Armed Forces.
What is Article 370?
However, it is important to view Article 370 from the prism of the past. The Partition of 1947 must be perceived from the lens of a watershed that gave birth to two nation- states, India and Pakistan, the latter which has been believed to be a product of a failed democracy as post- colonial historians would argue. There was euphoria on the streets on the midnight of 14th August, as India was granted independence from colonial rule which had dominated its historical trajectory from the past 200 years. The Constituent Assembly under Rajendra Prasad had met on 14th August to decide upon the Nation Flag and its Emblem. Pakistan and Kashmir essentially were bound by trade links which made the former believe that she had authority over the latter.
A Muslim- majority Princely state had been under the rule of the Dogra Maharaja, Maharaja Gulab Singh since 1846 did not deem it necessary that its citizens have any share of political power. His descendant, Maharaja Hari Singh carried on this legacy which soon led to the political distress as the leader of All Jammu and Kashmir National Conference; Sheikh Muhammad Abdullah demanded that Muslims be entitled to equal political rights. However, Pathani tribesmen with support from Pakistan had attacked Kashmir which led Maharaja Hari Singh to appeal to the Indian Government for help. The Indian Government stated that it could offer resistance only if the Maharaja would sign the Instrument of Accession which officially took place on 26th October, 1947 and by the protocol, agreed to comply with the Dominion of India. Sheikh Abdullah was appointed the Prime Minister thereafter. It was under N. Gopalaswami Ayyangar that Article 370 was formulated. The Government of India was permitted to frame legislations for Jammu and Kashmir in Defense, Communications and Foreign Affairs. Article 370 therefore awarded a separate Constitution to Jammu and Kashmir, whereas Article 35A entitled its permanent residents special privileges as well as Government jobs. It also accords rights with attainment of property.
However, Kashmir has emerged as a disputed territory between India and Pakistan that remains etched in history.
- (2020, Oct 14) Hussain, Ashiq. People will continue struggling for resolution of Kashmir: Mehbooba Mufti’s message after release. Hindustan Times. https://www.hindustantimes.com/cities/people-will-continue-struggling-for-resolution-of-kashmir-mehbooba-mufti-s-message-after-release/story-djtpsd66uwgjQa7p6g9bMJ.html
- (2020, September 23) Nasir, Ganai. Iltija Mufti Moves Supreme Court, Files Fresh Petition For Mother’s Release. Outlook India. https://www.outlookindia.com/website/story/india-news-iltija-mufti-moves-supreme-court-files-fresh-petition-for-mothers-release/360768
- Mehbooba Mufti moved to her official residence, remains in detention under PSA. The Economic Times. https://economictimes.indiatimes.com/news/politics-and-nation/mehbooba-mufti-shifted-to-her-residence-detention-continues/articleshow/75024451.cms
- (2020, October 14) Bhat, Tariq. Revocation of Article 370 was robbery, insult: Mehbooba Mufti. The Week Magazine. https://www.theweek.in/news/india/2020/10/14/revocation-of-article-370-was-roberry-insult-mehbooba-mufti.html
- (2020, August 4) Salam, Kathryn. Kashmir, One Year Later. https://foreignpolicy.com/2020/08/04/kashmir-article-370-blackout-arrest-covid-pandemic-modi/
- Jalal, Ayesha. Democracy and Authoritarianism in South Asia: A Comparative and Historical Perspective, New Delhi: Cambridge University Press, 1995.
- Bandopadhyay, Shehkar. From Plassey to Partition and After: A History of Modern India, Hyderabad: Orient Blackswan Private Limited, 2004.
- Gupta, Surbhi and Bhushan, Shashi Ojha, ‘Article 370 of the Indian Constitution: A study in specific reference to legal dimensions and implications’, International Journal of Law, Vol. 4, Issue 3