#Article370: Playing with fire

At a time when Prime Minister Narendra Modi surprised many by inviting Pakistani Prime Minister Nawaz Sharif to attend his swearing in ceremony, and caused a section of separatist leaders to react with cautious optimism to his ascendance to the highest post, something different popped up from somewhere close to his office. First time MP and newly inducted Minister of State (PMO) Dr Jitendra Singh touched upon a sensitive and contentious issue, and even referred to Modi vis-à-vis the purported discussion with “stakeholders” on the fate of Article 370. He did clarify his remarks later, but the row he kick-started has raised tempers on all sides.

With the mainstream parties of Jammu and Kashmir, like the ruling National Conference (NC) and the opposition People’s Democratic Party (PDP), taking umbrage at Singh’s assertions that the process for abrogation of Article 370, which, according to him, had done more harm to the state than benefit, the Congress too reacted sharply to the “misadventure” piloted by the minister. Singh has been rewarded with the important portfolio presumably for defeating Congress stalwart Ghulam Nabi Azad in Udhampur.

The Bharatiya Janta Party (BJP) has all along called for the abrogation of Article 370, which defines the special relation between Jammu and Kashmir and the Union of India. However, during the party’s previous rule under Atal Bihari Vajpayee, the issue was pushed to the background, and he went the extra mile to address the protracted political issue. Vajpayee’s understanding of the political dynamics was well exhibited by his conduct, through which he put into motion two parallel processes, i.e. New Delhi-Islamabad and New Delhi-Srinagar. Prime Minister Modi too invoked Vajpayee’s legacy and told an election rally in Hira Nagar (in Jammu) he would follow Vajpayee’s line of addressing the Kashmir issue within the ambit of “Insaniyat, Jamhooriyat and Kashmiriyat”. Earlier, in Jammu, he sought a debate on Article 370 to discuss its merits and demerits.

But before he could move forward on any such invocation, his minister “stole the show” on day one of his government, instilling fear among the people in general, and in Kashmir in particular. After a “successful” meeting with Nawaz Sharif, people were expecting a change in atmosphere. But it turned out to be the opposite. Not that Article 370 has been an article of faith for the people who are demanding “azadi”, but it still instilled a feeling of uniqueness. The special status of Jammu and Kashmir is guaranteed by the Indian constitution through Article 370. And this status was not an out of turn favour to the state, whose status is yet to be determined when one looks at the fact that it is divided in three parts.

Genesis:
Kashmiris have been subjected to atrocities by rulers right from 1586, when it lost its sovereignty to Mughal Emperor Akbar. Since then, they have lived with a sense of disempowerment and always feared ruination under a foreign invasion that would take a heavy toll on its cultural and linguistic identity. When Maharaja Hari Singh acceded to India in 1947 (with the support of Kashmir’s most prominent leader Sheikh Abdullah), it was also in contrast to the mechanism adopted for the division of India. In spite of being a Muslim majority state, it acceded to India, and this uniqueness was taken into consideration. Article 370 came into existence to give the feeling to the people they were special, and this wall was meant to protect their cultural and linguistic identity. Leading constitutional expert AG Noorani notes in his book, Article 370, that Jammu and Kashmir was the only state that negotiated its relations with the Indian Union.

It is a different matter that rulers right from Jawaharlal Nehru have not kept their promise of ensuring that this uniqueness would be preserved. Instead, they worked towards its erosion, and that is why the average Kashmiri lost faith in the Indian system and its democracy. One of the reasons for the armed rebellion that has now been on for over 20 years was that Kashmiris felt cheated as the state initially acceded to the Union for three subjects only. Earlier, the promise of plebiscite was also made by the first Prime Minister in the United Nations.

Today, Article 370 is an empty shell but its significance as a psychological tool of being “different” remains. The first blow to the trust and confidence of the Kashmiri people came in August 1953 when the then Prime Minister Sheikh Mohammad Abdullah was illegally dismissed. That was done to pave the way for the erosion of the so-called autonomy the state was enjoying under Article 370. 

Post 1953, Government of India clandestinely extended 262 of 396 articles of the Indian constitution to the state. Out of 98 entries in the union list 94 apply to the state, and interestingly one is related to the navy when there is nothing associated with that in the state. The Indian government also extended Article 249, under which Parliament can make laws on any item, which falls in the state list, that too in normal times. And that was done during governor’s rule in the state. All this was done in violation of Article 370, and the interim powers given to Parliament are still used when they ceased to exist when J&K’s Constituent Assembly completed its task of adopting the constitution in 1956.

Misinformation:
While the debate on Article 370 is on, a misinformation campaign has also been unleashed to mislead the public opinion in India. First, there is misinformation that no outsider can buy the land in Jammu and Kashmir. That has nothing to do with Article 370. The State Subject law that gives the power to debar any outsider from buying land was passed by Dogra rulers in 1927. 

Second, the Supreme Court has no jurisdiction. This is again a concoction. Day in and day out, Supreme Court rulings come in relation to the state and all judges of the J&K High Court are appointed by the President of India on the recommendations of the Supreme Court. 

Third, a Pakistani citizen gets citizenship and the people of J&K have dual citizenship. This again is misleading, as no dual citizenship exists in the state. Any foreign woman citizen, whether from Pakistan or any other country, who marries a citizen of Jammu and Kashmir can get citizenship. It applies to any citizen from the rest of India as well. 

Fourth, anyone who shows disrespect to the Indian tricolour cannot be booked under any law as the state has its own flag. This too is incorrect, as there are scores of people who have been booked under sedition charges for such a crime. 

There are many more examples one can quote that are being spread towards making a false case against Article 370.

Can they do it?
Now that the parties involved in the debate are talking about its continuance and abrogation, as the RSS too reiterated its commitment for the latter, the question is, can they do it? The answer is a big no. Even if the BJP government goes ahead with this “ambitious” misadventure, it has to be done by an amendment in Article 368, but that will not be applicable unless the state accepts it. And it has to be done by the Constituent Assembly of the state that ceases to exist. The Constituent Assembly is set up just once, and in case there is a revolution and a new constitution has to be drafted, only then does such a situation arise. For the sake of argument, even if we presume that they do it, then the Constitution of Jammu and Kashmir goes away and we go back to the instrument of accession, according to which the Centre will have jurisdiction to only three subjects: defence, communication and external affairs. That as of now would be a welcome situation for the Kashmiris who want the final resolution of the dispute.

Whatever the final outcome of the present discussion, the newly instated BJP government has not started on a positive note in Kashmir. It has negated the optimism with which new government was seen in the state. When people are for azadi and you try to snatch the so-called autonomous character away, how can you win the battle of hearts and minds? With many agreements certifying the disputed nature of the state, there is no other way but to reach out to people with a unique approach and shun this bogey of “Ek Vidhan, Ek Nishan, Ek Pradhan”. This surely does not apply to Jammu and Kashmir, where people feel they have different aspirations than the people of India.

Shujaat​ Bukhari is the editor of the Srinagar English daily Rising Kashmir.