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Mainstream, VOL LVII No 35 August 17, 2019

Kashmir: Abolition of Article 370 and its Implications

Monday 19 August 2019

by Ram Puniyani

Currently there are celebrations in sections of the Indian society and there is a pall of gloom in Kashmir. On Tuesday, August 5 (2019), by a Presidential order Article 370 has been revoked alongwith Article 35 A. Interestingly, the citizens of Kashmir, the traders of Kashmir scattered in different parts of the country are under immense tension about the well-being of their families back home. The celebrations are running parallel among the people who think that Articles 370 and 35A are the ones which have prevented the progress and peace in Kashmir. The step of revocation of these Articles was taken in great secrecy. On the pretext that a terrorist attack is in the offing, a large number of Army personnel was sent to further boost the already present lakhs of soldiers in the Valley.

With heavy military deployment on one side, the communication in the State has been totally clamped down and people do not know what is in store for them. An undercurrent of panic prevails all over the State.

The legal pandits are raising a question as to whether this Article can be abolished by the way it has been done. The Constituent Assembly, which formulated this special provision, had the likes of Sheikh Abdullah, Jawaharlal Nehru and Sardar Patel, among others. One of the provisions of the Instrument of Accession of Kashmir to India states, “‘nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution”.1 The people of Kashmir, as represented in the then Constituent Assembly in Kashmir, had to be taken in confidence for any major change in the terms of the Article, thereby terms of relationship with/accession to India. So it seems that in a hurry to actualise the RSS-BJP’s Hindutva agenda, the present regime is recklessly pushing itself in a direction which may not be legally tenable. The legal position and the stand of the Supreme Court in the matter will be extremely crucial in deciding the final fate of these Articles and the status of Kashmir.

What has been done by the Modi regime has no parallel in Indian history. By the Presidential order the Articles 370 and 35A have been revoked, J&K as a State has been bifurcated into two Union Territories, one of J&K and the other of Ladakh. First time in the history of the nation a State has been downgraded to a Union Territory. The whole idea was that Kashmir will overcome the earlier hurdles at the time of accession and will have better democratic atmosphere. What has been imposed by a dictate is that the State itself has not only been divided, it has been demoted into two Union Territories where the Central Government will rule the roost through Lt. Governors, with the democratic processes undermined in a serious way. All the major leaders of the State have been imprisoned or are out of contact with the people of the State. What are visible all around are the empty streets and the heavy presence of military forces everywhere.

Background

When India became independent the princely states were given the option of either remain independent or to merge with India or Pakistan. Most of the princely states did merge with India. The problem came in matters of Junagadh, Hyderabad and Kashmir. Junagadh was merged into India and later plebiscite was conducted there in which the people of Junagadh did vote for merger with India. Hyderabad, with a Muslim King and a Hindu majority population, wanted to remain independent or merge with Pakistan. Through police action by the military it was merged into India. The Nizam opted for Pakistan as mainly Jinaah had offered him all the powers within the State.

In matters of Kashmir, the King was a Hindu, Raja Harisingh, and the majority population was Muslim. Harisingh wanted to remain independent. At this point the Pakistan Army instigated a tribal attack that was orchestrated in Kashmir.

Faced with the attack, Harisingh approached India to assist with military help to quell the Pakistani aggression. As Kashmir was indepen-dent at that time it was not possible for India to send the Army and so the compromise was struck. In this the major role was played by Sheikh Abdullah, who was the Chief of the National Conference, who identified more with the secular, democratic values of Gandhi and Nehru. To facilitate the Indian Army to help fight Pakistani aggression the Treaty of Accession was negotiated. This Treaty involved accession, not merger of Kashmir into India. As per this Kashmir will be a part of India with autonomous status. Autonomy meant that the Kashmir Assembly will have all the powers except in matters of defence, communication and external affairs, which will be looked after by the Central Government. This also involved that Kashmir will have its own Constitution, its own flag, its own Prime Minster and Sadar-e-Riyasat.

Under these conditions Kashmir acceded to India. India sent its Army and could save two-thirds of Kashmir from Pakistani aggression. As further war involved loss of civilian lives, ceasefire was declared and the matter was taken to the United Nations. The United Nations resolution in the matter asked for vacation of aggression by Pakistan, reduction of Army by India and to conduct the referendum, plebiscite.2 The plebiscite was to be done under UN supervision with the option to Kashmiris to either remain independent, or merge with Pakistan or merge with India. Pakistan, well-backed by America, refused to vacate the aggression, violated the United Nations resolution and the matter came to a standstill as no plebiscite could take place. The term Line of Actual Control came into being denoting the line across which the two countries, India and Pakistan, had their control.

It is this Treaty of Accession which was the basis of Article 370. Article 35A further provided protection to the State and prohibited the sale of land to the non-residents of Kashmir.3 By the way similar provisions do prevail in several other hill States like Himachal Pradesh and Nagaland. These provisions were given to the hill States, to Adivasi areas to protect these from the influx of wealthy industrialists and others swamping these areas, to preserve their character.

The Modi Sarkar’s Agenda

The Modi-Shah duo, as per the agenda of the RSS, attributes the non-development, corruption and violence in Kashmir due to the presence of this Article; so in pursuance of that they seem to have rushed the step of revoking it.

Will this lead to the development of the State as is being argued by many commentators, including those who do not belong to the BJP camp. There are States where land cannot be bought by outsiders; there land is being leased and industries set up. Will industrialists venture to invest in areas where militancy is uncontrolled and on the rise? The statistics show that with the Modi rule of last five years the violence is on increase.4 The last five years of Modi rule also saw a massive rise in unemployment all over India. The policies pursued by the Modi Sarkar, which are leading to an increase in unemployment, whether these can open the doors of industrialisation and employment in Kashmir is a question which time alone can tell us. The core point to consider is that development can be brought into the Valley by undoing those factors which are preventing the development there. What are those factors?

A bit of background needs to be recalled. After the accession of Kashmir to India the communal forces become very active. It is well known that the likes of Jawaharlal Nehru and Sardar Patel were part of the committee which gave final shape to Article 370.5 Meanwhile the communal forces, which totally kept aloof from the freedom movement of India, and had no role in the process of the making of India as a nation, started clamouring for full integration of Kashmir into India. Their pressure was for doing away with the Treaty of Accession and to fully merge Kashmir into India. The nation witnessed the horrible murder of the Father of the Nation by the Hindu nationalist Nathuram Godse. Shyama Prasad Mookerjee, the leader of the Hindu Mahasabha, who later became the founder of the Bharatiya Jan Sangh, the previous avatar of the BJP, started strong pressure to fully merge Kashmir into India. He violated the prevalent law to enter Kashmir, was arrested and unfortunately died in the jail in Kashmir under tragic circumstances.

Sheikh Abdullah, the Lion of Kashmir, had great faith in India’s secularism. Due to the murder of the Father of the Nation and due to pressure from Hindu nationalists to fully merge Kashmir into India, he was shaken to the core. Disturbed by all this, he started talking to the United States, China and Pakistan. This was treated as treason by the Government of India and he was imprisoned on these charges. This was the major turning-point for Kashmir and its people. The people, who looked forward to a harmonious existence as an autonomous part of India, were rudely jolted by this and the process of alienation began in Kashmir. This was the germ of militancy and separatism in times to come.

This separatism initially was steeped in the values of Kashmiriyat. Kashmiriyat is a synthesis of the values of Vedanta, Buddhism and Sufi values.6 Later with support from Pakistan, and infiltration into Kashmir of Al-Qaeda type elements, it took an ugly communal shape. All this was countered from the Indian side by increasing the presence of the military by and by. The civilian life in the Valley was replaced by the life under the force of the gun.

The plight of the people of Kashmir can be gauged from the fact that on one side militants and on the other military presence wrecked the social life in the State. It witnessed massive civilian casualties, the unique phenomenon of half-widows, where the man is missing for years, derailing the normal life and increasing the alienation much further.

Kashmiri Pandits

As far as the painful issue of exodus of Kashmiri Pandits is concerned, let’s recall that it took place during President’s Rule with Mr Jagmohan as the Governor of the State. The same Jagmohan later joined the BJP. At that time the communalised militants were targeting the Pandits. There was a goodwill mission which was requesting the Pandit community to hold on and calling upon the state to bring in the measures for the security of the citizens, more so of Pandits in the State. Jagmohan actually facilitated the migration of this beleaguered community.7 The BJP constantly keeps hankering that the Congress has failed to do justice with the Pandits. Let’s realise we had six years of rule of Atal Behari Vajpayee (1998-2004), and from 2014 again the BJP-led government is there at the Centre. The question arises: why they could not be rehabilitated?

The answer lies in the fact that in the situation where violence is the dominating atmosphere and militancy is not abetting, how can Pandits go back to their homes? The roots of militancy lie in alienation, and that’s not being addressed at all. We do need to think a bit more deeply as to how amicable situations are created when Pandits can go and live in their original homes and areas.

What happened during last few years?

While there have been regular acts of violence, whenever the process of dialogue is given a go-by such acts worsen. The statistics show that the number of civilian casualities have gone up during the last five years.8 The dissatisfaction of the people has been manifesting in the form of stone-throwing, the incidents of which went up during this time. To attribute it to mere funding by Pakistan will be shortsighted. No doubt Pakistan has played a negative role, but the major factor is the dissatisfaction among the people of Kashmir.

The BJP-RSS combine has been on a spree to blame Nehru for all the failures. They have been propagating that the Kashmir issue became problematic due to Nehru’s mistakes and that had Sardar Patel been handling Kashmir it would have been sorted out by now. The truth is that Sardar Patel was keener on merging Hyderabad into India.9 About Kashmir he did state that if Pakistan allows Hyderabad to merge into India, he will have no objection to Kashmir merging with Pakistan. Nehru is blamed for Article 370; this is a propaganda as this Article came as an outcome of discussions in which Sheikh Abdullah, Pandit Nehru and Patel were all members. The decision of ceasefire was again taken in the Defence Committee of the Cabinet in which Sardar Patel was a member. Nehru agreeing to plebiscite was right as that was the norm and even in Junagadh, where Patel was the key figure, plebiscite was conducted in which the people of Junagadh opined to merge with India.

Path to Peace

What has been done by the Modi-Shah duo is a heavy-handed muscular nationalism. The democratic ethos has been given a go-by. The popular sentiments of the people of Kashmir have been put under the carpet. Democratic processes have been replaced by the barrel of the gun. Contrary to what Atal Behari Vajpayee had formulated, Insaniyat (Humanism), Kashmiriyat and Jamhooriyat (democracy), we are witnessing policies which are just hyper-nationalist, which are undermining the local people’s sentiments and aspirations for a democratic set-up.

Some are also bringing in Dr Ambedkar to undermine Nehru. The truth of the matter is: even he was for the Muslim majority going to Pakistan as he outlines his opinion in his collected works (writings and speeches) part 14, part 2, page 1322.10

How will the people of Kashmir respond? That needs to be seen. At present there is a great sense of insecurity all around in the people of Kashmir. We need to keep the people at the centre of our policy-making. The reactions of Pakistan and China to this are not very friendly. We can live in peace only with good relations with our neighbours, we can create harmonious atmosphere by respecting the sentiments and aspirations of the people of the State.

The reduction of the status of J&K to a mere Union Territory is a matter of concern. The process of integration is only through mutual dialogue, accommodation and strengthening of democratic processes. While we look forward to the legal opinion on the issue, we need to assuage the anguish of the people of Kashmir. The litmus test of any decision lies in the reaction of those whom it primarily affects. We look forward to the times when rectification measures are undertaken whereby the people of Kashmir, Kashmiri Pandits—all can celebrate with joy and Kashmiriyat, the soul of Kashmir, is revived.

Footnotes

1. https://thewire.in/law/constitution-torn-to-shreds-as-rss-indulges-article-370-fantasy-in-kashmir

2. https://en.wikipedia.org/wiki/United_Nations_Security_-Council_Resolution_47

3. https://economictimes.indiatimes.com/news/politics-and-nation/instrument-of-accession-from-1947-till-date/articleshow/70546147.cms?from=mdr

4. https://thewire.in/law/constitution-torn-to-shreds-as-rss-indulges-article-370-fantasy-in-kashmir

5. https://indianexpress.com/article/explained/sheikh-abdullah-ayyangar-sardar-patel-how-article-370-was-negotiated-debated-5881060/

6. https://www.countercurrents.org/puniyani220610.htm

7. https://www.news18.com/news/india/governor-jagmohan-was-responsible-for-pandit-exodus-says-saifuddin-soz-in-new-book-on-kashmir-1787973.html

8. https://thewire.in/security/has-kashmirs-militancy-entered-its-most-lethal-phase-yet

9. https://scroll.in/article/884176/patel-wanted-hyderabad-for-india-not-kashmir-but-junagadh-was-the-wild-card-that-changed-the-game

10. https://hindi.sabrangindia.in/article/dr-br-ambedkar-on-kashmir-issue

The author, a retired Professor at the IIT-Bombay, is currently associated with the Centre for the Study of Secularism and Society, Mumbai.

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