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It’s the Article in the Constitution that forms the sole bridge between Jammu and Kashmir and the Indian Union. Some facts:
Kashmir And Article 370
From 1947 on, milestones of the dispute
This was perhaps not how Narendra Modi expected the week’s events to pan out. His swearing-in ceremony at the Rashtrapati Bhavan forecourt on May 26 afternoon had gotten him off to a flying start. Among a host of dignitaries, the presence of leaders of the SAARC countries, particularly Pakistan’s Prime Minister Nawaz Sharif, gave him the opportunity to send out a strong, assuring signal to the outside world. To wit, the ascendance of a Hindu-right leader to power in Delhi was not a threat to the nuclearised South Asian region. On the contrary, the presence of the regional leaders reaffirmed India’s desire to re-engage with its immediate neighbours. The next day’s meeting that Modi had with Sharif and other South Asian leaders at Hyderabad House only strengthened this view further.
However, the mood soon changed afterwards with a remark by a junior minister in the PMO, suggesting that a debate will soon start on Article 370 of the Constitution to determine the ‘special status’ of Jammu and Kashmir. In less than 48 hours of its swearing- in ceremony, the new government was faced with its first political controversy. “We are speaking to the stakeholders. Article 370 has done more harm than good,” Jitender Singh Rana, a first-time Lok Sabha MP from Jammu’s Udhampur, told a TV channel.
Rana now is known in his constituency as a “high drama artist” and apparently even has a certificate from All India Radio to prove it. A diabetologist of repute, he rose to prominence during the Amarnath land row as the spokesman for the Shri Amarnath Yatra Sangharsh Samiti—which was spearheading the counter-agitation against the Valley’s opposition to transfer of land to it. He became a household name in the region then with regular appearances on TV channels, even as the agitation continued outside with curfews lasting two months. Several thousand people, including women and children, filled the jails, besides fighting bloody battles with the police on the roads and bylanes.
The abrogation of Article 370 has been a long-standing demand of the BJP and the Sangh parivar. An agitation for its removal began almost from the time the Nehru-Abdullah agreement of 1952 detailed the special powers and status of the state. Syama Prasad Mookerji, who resigned from Nehru’s cabinet and launched the Jana Sangh, was one of the champions of the agitation, and his arrest while making an attempt to enter the state without a permit and subsequent death in the custody of the J&K police has made this a highly emotive issue for the Sangh parivar.
What Rana said, therefore, was not very different from the line in the election manifesto or what Narendra Modi himself had said while campaigning in Jammu. But it is the timing of his remark—especially at a time when the new government was busy highlighting its other, softer facets to the world—that has raised questions both within and outside the government. Led by Jammu and Kashmir CM Omar Abdullah, who wanted to know that since he hadn’t been consulted, the government should clarify who the ‘stakeholders’ were it was discussing the issue with, a host of Kashmiri leaders strongly reacted to the junior minister’s comments, some even arguing that since it came from someone in the PM’s office, it must have had Modi’s blessings.
Under the circumstances, however, this looked highly unlikely as the new prime minister could not be seen opening a new front domestically, especially one as sensitive as Kashmir, even as he was trying to project himself as a mature leader on the world stage willing to talk peace with Pakistan and other neighbours of India. Visibly embarrassed at the development, the PM’s close aides and BJP and RSS leaders tried to play down the issue. But it did little to contain the damage. “This is pure ignorance displayed by a national party on what forms the ‘constitutional link’, a bridge, between J&K state and the rest of the country,” says ex-National Conference MP Mehboob Baig.
Article 370 is perhaps the least understood and also most widely misread provision of the Indian constitution. Every now and then, it has led to controversies and debates and needed explanation on the special circumstances of its inclusion in the Constitution and the need for it to be there.
Hari Singh, the maharaja of J&K, acceded to the Indian Union in October 1947 when a full-scale war was upon the state in the wake of raids and pillage by tribesmen from Pakistan. He sought the Indian army’s help and agreed to join the Union. But it was the only former princely state that negotiated its accession to the Union. The Instrument of Accession document signed by the maharaja was also accompanied by a letter—which in legal terms is seen as a ‘collateral document’ and an ‘integral whole’ with the other document. And this was done only after Sheikh Abdullah, who was appointed by the maharaja as the prime minister of an interim government and three of his colleagues joined the Indian Constituent Assembly as members to negotiate the terms and conditions of J&K’s joining the Union. After five months of hectic parleys, and the personal intervention of Sardar Patel, the terms were agreed upon and they were made part of the Indian Constitution with the incorporation of Article 370. The separation of powers of the state and the Union was further formalised through an agreement between Jawaharlal Nehru and Sheikh Abdullah in 1952 and also endorsed by the constituent assembly of J&K.
Only three areas—defence, external affairs and communications—were designated as ones where the Union would have powers, while all others were left to the state. It was also agreed that neither side could unilaterally alter, amend or expand the powers. Any attempt by the President of India to bring about changes in the state to make other laws of the Union applicable in J&K had to have the concurrence of the state’s constituent assembly. The J&K constituent assembly from 1951 to 1956 debated and discussed all these provisions, and after incorporating them in the state constitution—the only state in India that had a separate constitution—it got dissolved.
There are two sets of interpretations to the legal and constitutional provisions of Article 370 and relations between J&K and the Indian Union. One clearly states that provision 1-C of the Article makes it explicit that Article 1 of the Indian Constitution that lists the states of India applies to Kashmir through Article 370. In other words, if Article 370 is removed or abrogated, J&K becomes independent of the Indian Union. Simply put, this is the only string that binds the two together.
It is also argued that since the constituent assembly of J&K no longer exists, there is no provision left for altering the terms and scope of the agreement between the two sides.
This view, though, has been questioned and tampered with by different governments in Delhi for years. In fact, during Indira Gandhi’s prime ministership, the Supreme Court held that since the constituent assembly of J&K is no longer there, the state legislature becomes its rightful heir and, therefore, expansion of the Union’s power can happen with the consent and concurrence of the state assembly.
But for the Sangh parivar, the opposition to special status for Kashmir and Article 370 come from another place altogether. As historian Christophe Jaffrelot says, “It is key for three reasons: ideologically this article contradicts their conception of the nation that is ethnic and unitary (Golwalkar opposed even the idea of federalism, saying it was responsible for ‘angularities’ that had to be erased; Article 370 is much worse!). Emotionally, the fate of the Pandits shows that Hindus are second-class citizens in their own country and, historically, S.P. Mookerjee died in Kashmir in 1953 for the cause.”
So what is the future of Article 370 and are we likely to see a renewed controversy on the subject or will the new government be smart and mature enough to realise that scrapping this provision of the Indian Constitution can do more harm than good to both the BJP and the nation as a whole.
A word of caution came from Congress leader and son of the last Kashmir maharaja, Karan Singh. In a statement on Thursday, he said, “My appeal to all concerned is to kindly tone down the rhetoric and not let the minister’s statement plunge the new government almost immediately into a complex and difficult situation.” He added that “the whole question of Jammu & Kashmir has to be looked at in an integral fashion, including the international dimension, the constitutional position, the legal aspects as well as the political aspects. Such an integral review is overdue, but it has to be done in a cooperative rather than a confrontational manner”.
While these are wise words, it remains to be seen whether this sage advice will taken to heart by the different players on the stage now, particularly at a time when assembly elections in Jammu and Kashmir are due in a few months’ time.