ON 5 August 2019, the Government of India issued a presidential order under Article 370, nullifying the constitutionally guaranteed autonomy of Jammu and Kashmir (henceforth J&K). The same day, the Modi government tabled and passed a bill diving and reducing the state into two union territories of J&K and Ladakh. In ramming this legislation through the houses of Parliament, the government advanced several specious historical claims: that Article 370 was a ‘temporary’ provision; that by preventing the complete ‘integration’ of the state it had fostered separatism and terrorism as well as creating a corrupt political class that had thwarted the development of the state. All this is apparently set to change at one fell swoop.

The veracity of these claims apart, these moves portended an ominous threat to Indian federalism. Although the Constitution affirms that India is a union of states, it clearly has a federal structure. What is more, this federal structure has several asymmetric features and provisions – Article 370 was one of them. The government’s moves not only cut against the provisions for J&K, but set a dangerous precedent for undermining the federal character of the polity. If a state can be placed under President’s rule and with merely the governor’s approval divided and reduced to union territories, then federalism is a dead letter.

Although the BJP orchestrated a chorus of approval for these moves, the government is evidently not confident of its hold on the newly ‘integrated’ union territory of J&K. Five months on, preventive detention – including of serving members of Parliament – and extraordinary restrictions on everyday freedoms remain the norm. The Supreme Court has finally begun hearing a clutch of petitions on J&K. Whatever the judicial outcome, the history of the Kashmir problem suggests that the Modi government’s expectations are likely to be belied. The tissue of half-truths and false-hoods on which its strategy is constructed will not survive contact with unfolding reality.

In justifying its decision to write down Article 370, the government insisted that it was explicitly noted as a ‘temporary’ provision of the Indian Constitution. As the External Affairs Minister, S. Jaishankar, put it: ‘By any standards, 70 years is a long definition of that term.’¹ To understand why this argument is misleading, we need to look closely at the formulation of Article 370.

The Maharaja of J&K acceded to the Indian Union in October 1947. The Instrument of Accession specified only three subjects for accession: foreign affairs, defence and communications. In March 1948, the Maharaja appointed an interim government in the state, with Sheikh Abdullah as prime minister. The interim government was also tasked with convening an assembly for framing a constitution for the state. Meantime, the Constituent Assembly of India was conducting its deliberations. Sheikh Abdullah and three of his colleagues joined the Indian Constituent Assembly as members in May 1949. Over the next five months they negotiated Kashmir’s future relationship with India. This led to the adoption of Article 370 in the Indian Constitution.

 

Article 370 restricted the Union’s legislative power over Kashmir to the three subjects in the Instrument of Accession. To extend other provisions of the Indian Constitution, the state government’s prior concurrence would have to be obtained. Further, this concurrence would have to be upheld by the constituent assembly of Kashmir, so that the provisions would be reflected in the state’s constitution. This implied that after Kashmir’s constituent assembly was convened the state government’s concurrence would not suffice. Further, once the Kashmir constituent assembly met, framed the state’s constitution, and dissolved, there could be no further extension of the Union’s legislative power. It was thus that the state’s autonomy was guaranteed by the Indian Constitution.

This was the first reason why Article 370 was described as ‘temporary’. The final decision on what provisions of the Indian Constitution, beyond the three subjects of accession, would apply to J&K would be decided by the state’s constituent assembly. As N.G. Ayyangar (cabinet minister without portfolio and former Dewan of Kashmir, who led the negotiations over Article 370), pointedly explained when the draft provision (numbered as Article 306A in the draft constitution) was tabled in the Indian Constituent Assembly: ‘So the provision is made that when the Constituent Assembly of the State has met and taken its decision both on the Constitution for the State and on the range of federal jurisdiction over the State, the President may on the recommendation of that Constituent Assembly issue an order that this article 306A shall either cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by them. But before he issues any order of that kind the recommendation of the Constituent Assembly will be a condition precedent.’²

 

There was another reason why this article was labelled ‘temporary’. At the time of its discussion and adoption in 1949, the Indian government was formally committed to a plebiscite in the state and it was possible that a plebiscite would be held in the near future. As Ayyangar told the Constituent Assembly when the Kashmiri representatives were joining it, ‘if the plebiscite produces a verdict which is against the continuance of accession to India of the Kashmir State, then what we are committed to is simply this, that we shall not stand in the way of Kashmir separating herself away from India.’³

Although neither Nehru nor Abdullah were keen on a plebiscite, they could not retract from this commitment. So, the framers of the Indian Constitution had to take into account the possibility that they may have to let go of J&K. Article 370(1)(c) explicitly mentions that Article 1 of the Indian Constitution applies to Kashmir through Article 370. Article 1 lists the states of the Union. This means that it is Article 370 that binds the state of J&K to the Indian Union. The removal of Article 370 would remove the state from the Union of India.

 

Note that the BJP government did not issue a presidential order declaring that Article 370 would cease to operate – despite there being an explicit provision for it. Clearly, they understand the implication of doing away with Article 370 altogether and instead chose to nullify it. Presidential Order C.O. 272 amends Article 367 (which explains how the Constitution is to be interpreted) to substitute ‘legislative assembly of the state’ for ‘Constituent Assembly of the State’, thereby obviating the need for concurrence from the state’s constituent assembly which dissolved itself in 1957. With the governor’s concurrence standing in for that of the legislative assembly, C.O. 272 then extends all provisions of the Indian Constitution to J&K.

The constitutionality of this move is highly dubious – not least because Article 370 explicitly states that it can be used only to extend provisions other than Article 1 and Article 370 to the state of J&K. It grants the president no powers to amend Article 370 itself.⁴

There is, in fact, a long tradition of the abuse of Article 370 to shrink the autonomy of the state. Again, some historical context is essential. The constituent assembly of Kashmir met for the first time in November 1951. Even as it got down to its work, Abdullah wanted to depose the Maharaja and end dynastic rule in Kashmir. Nehru had no love lost for the Maharaja. But the move to depose the ruler raised serious constitutional issues; for the Maharaja was recognised by the President of India. More importantly, it underscored the need to settle the broad principles governing the relationship between Kashmir and India. This was necessary to ensure that Kashmir’s Constitution consorted smoothly with that of India. Following intense negotiations, Nehru and Abdullah concluded an accord in July 1952.

 

Under the ‘Delhi Agreement’ the Union’s authority would be confined to the three subjects of accession; the residuary powers would be vested in the Kashmir government. The residents of the state would be citizens of India, but the state legislature would define and regulate their rights and privileges. The head of the state would be recognised by the President of India on the recommendation of the state legislature. Delhi could only exercise emergency powers on the request of the state government. These were the contours of the ‘pre-1953’ autonomous status for Kashmir.

Unfortunately, the accord failed to hold. The Delhi Agreement came under intense attack by the Bharatiya Jana Sangh (precursor to the BJP) and the Praja Parishad in Jammu (a Dogra Hindu organization), both of which demanded complete integration of the state with India. Painted into a corner by these forces, Abdullah began toying with a variety of alternatives, including independence or a condominium of India and Pakistan for the whole state or the valley. This set the stage for Abdullah’s dismissal, with Nehru’s approval, and imprisonment.⁵

Thereafter, successive Indian governments sought to shore up their slipping hold on Kashmir by planting pliant governments in Srinagar and by creatively undermining the state’s autonomy. In May 1954, the Indian government issued an omnibus presidential order extending several provisions of the Indian Constitution to J&K. At this point, there was at least the fig leaf of ‘concurrence’ of the state’s constituent assembly. In November 1956, the state constituent assembly adopted a motion dissolving itself from 26 January 1957. Yet the Indian government continued to use presidential orders under Article 370 to apply more provisions of the Indian Constitution to the state.

 

In November 1963, Nehru told Parliament that Article 370 and Kashmir’s autonomy ‘has been eroded…and many things have been in the last few years which have made the relationship of Kashmir with the Union of India very close…So we feel that this process of gradual erosion of Article 370 is going on… We should allow it to go on.’⁶ As indeed it did.

Consider some of the more egregious ways in which the state’s autonomy was hollowed out. In November 1964, Article 356 (imposition of President’s rule) was applied to the state via Article 370. In November 1966, the state’s constitution was amended to replace the elected Sadr-i-Riyasat with a governor nominated by the central government. In July 1975, a presidential order under Article 370 curbed the state legislature’s powers with respect to the governor and the composition of the upper house. Article 370 which provided a mechanism to extend provisions of the Indian Constitution to the state was deployed to amend the state’s own constitution. All along New Delhi held that since the constituent assembly of Kashmir had wound up in November 1956, the powers granted to that body should be vested in the state legislature.

The intention of the framers of the Constitution was, of course, just the opposite. What is worse, this reading was upheld by the Supreme Court, thereby making a mockery of Article 370. In July 1986, a presidential order under Article 370 applied Article 249 (which allows Parliament to legislate on the state list) to Kashmir. At this time, the state was under president’s rule, so even the pretense of concurrence by the state legislature was unavailable. But the central government held that Governor Jagmohan’s concurrence sufficed. This set the precedent that enabled the moves of 5 August 2019; it at once eviscerated the remaining scraps of the state’s autonomy and consigned its constitution to oblivion.

 

Explaining his government’s decision to do away with Kashmir’s autonomous status and to divide the state into two union territories, Prime Minister Modi observed that ‘a new age has begun in Jammu-Kashmir and Ladakh’.⁷ The move, he explained, would remove corruption, promote investment and curb violence. BJP leaders have maintained that a key objective of these moves was to remove the old leadership of the National Conference and the People’s Democratic Party and to foster a new generation of leaders. The latter would not only fall in with New Delhi’s wishes, but their political horizons would be limited to regaining statehood and ensuring development. As BJP general secretary, Ram Madhav, put it, ‘Kashmir needs a new leadership, built not on the separatist narrative of the 20th century but on the development narrative of the 21st century.’⁸

 

The slogan ‘Naya Kashmir’ ironically harks back to Sheikh Abdullah’s famous Naya Kashmir agenda. It was in pursuit of this that Abdullah supported accession to India and subsequently negotiated autonomy for his state. It subsequently became a trope in projecting imagined futures for Kashmir against the backdrop of grim realities. The search for new leaders to give shape to this vision was also a running thread through Kashmir’s history after Abdullah’s incarceration in 1953.

‘We will build a new Kashmir, quickly if you help, slowly if you don’t, but build it we will!’⁹ said Prime Minister Indira Gandhi, addressing a public rally in Srinagar in June 1970. These fighting words underscored her intent to alter the then prevailing status quo. In fact, important changes were already underway.

Chief Minister G.M. Sadiq had been in office since 1964. A year into his tenure he had merged his splinter group, the Democratic National Conference, with the Congress party. What’s more, Sadiq had enabled the erosion of the state’s special status by accepting more provisions of the Indian Constitution (including Article 356, which caters for President’s rule) and amending the state’s Constitution to convert the elected Sadr-i-Riyasat into a centre-appointed governor. Following assembly elections in 1967, Sadiq returned with a comfortable majority. New Delhi was poised to tighten its grip over the state.

Yet the government struggled to create jobs or promote investments in Kashmir. Sadiq noted that the educated youth of the state were increasingly drawn to the secessionist groups. The prime minister deputed her confidante I.K. Gujral to mobilize investments in the state. But Gujral reported that industry was not prepared to invest in a conflict zone and the best he could do was to get two public sector units to open factories in the state.¹⁰

The central challenge, however, was posed by the stalwart leader of Kashmiris – Sheikh Abdullah. Although Abdullah had been in and out of prison since his dismissal and arrest in 1953, his standing in the Kashmir Valley was unrivalled. Indira Gandhi understood the importance of co-opting Abdullah to ensure that New Delhi’s hold over Kashmir remained unshaken.

 

Among the inputs that shaped her thinking was advice from an unlikely quarter. Jayaprakash Narayan had been an advocate of self-determination for Kashmir, but had changed his mind after Pakistan’s aggression in 1965. The following year he wrote to Indira Gandhi arguing that Kashmiris could be enthused about autonomy within India if Abdullah advocated it. The Sheikh might have flirted with independence in the past, but now ‘he is realist enough to realize’ that India would not part with any portion of Kashmir.¹¹ To secure Kashmir it was imperative to forge a new concord with Abdullah, who remained under arrest.

 

In October 1967, Gandhi tasked Foreign Secretary T.N. Kaul with reaching out to Abdullah in his ‘private’ capacity. Kaul had known Abdullah for nearly four decades. In a series of meetings with the Sheikh, he probed the latter’s mind. Abdullah said that the ‘gradual whittling of Article 370 …was unfortunate’, but agreed that India’s interests should ‘not be harmed in any way’. At the same time, he noted that it was difficult to make the case for autonomy: ‘no fruitful dialogue was possible unless a free and congenial atmosphere was created in Kashmir …[Kashmiris] were not prepared to accept this master-slave relationship.’

When Kaul pointed out that New Delhi would not parley with anyone demanding self-determination, Abdullah retorted, ‘It was very strange… that while Government of India had no hesitation in talking to Nagas who were in open armed revolt against her they should refuse to meet the real representatives of the Kashmiri people.’¹² In the event, Abdullah was open to meeting the prime minister when he was out of prison.

Abdullah was released in March 1968, but Indira Gandhi chose not to meet him. She evidently hoped that the Sheikh would reconcile himself to the new realities in Kashmir. She was not off the mark. In 1971, Indira Gandhi returned to power with a massive majority and the next year, following the military defeat of Pakistan, the Congress won 57 out of the 74 seats in the J&K assembly elections. With Sadiq’s passing in December 1971, Syed Mir Qasim took over as chief minister. These dramatic developments left Abdullah with few cards to play.

Meanwhile, P.N. Haksar, the prime minister’s principal secretary, advised her that ‘it is imperative to make a fresh start and lead him [Abdullah] by hand on the difficult and tortuous road whose ultimate destination is reconciliation.’¹³ Haksar also advocated a quiet dialogue between New Delhi and Abdullah to work out a model of autonomy acceptable to both sides. The ensuing negotiations between G. Parthasarathi and M.A. Beg led to an agreement in November 1974. The accord paved the way for Abdullah’s return to power, but at the cost of further hollowing out the autonomy of J&K.

 

In February 1975, Abdullah took over as chief minister with the support of the Congress. To the Sheikh’s surprise and consternation, these developments drew widespread criticism in the valley. Thereafter, he sought to maintain a prudent distance from the Congress. When the latter suggested that the National Conference should merge with the Congress, Abdullah demurred. He also refused to take any suggestions from the Congress on the composition of his cabinet beyond agreeing to give them four berths. Lastly, Abdullah dug in his heels on seat sharing with the Congress in local body elections. By October 1976, an irate Indira Gandhi was telling Gujral that Abdullah had become ‘a pain in the neck’. Indeed, she was seriously contemplating removing him from office.¹⁴

In the event, it was Indira Gandhi who was ousted from power in March 1977. The Congress withdrew its support to Abdullah’s government in J&K. Released from these ties, the Sheikh won a handsome victory in the assembly elections. When Indira Gandhi returned to power in 1980, she had to make yet another new start in Kashmir – this time with more deleterious consequences. Her dismissal of Farooq Abdullah’s government pushed the state into a new phase of popular unrest and eventually an armed insurgency.

 

The history of Kashmir from mid-1960s onwards underscores the difficulty of finding leaders who are both pliable and effective. If a stalwart like Sheikh Abdullah had to face popular disapproval of the manner of his return to power, what are the odds that the current situation will throw up new leaders who can hold their own with the Kashmiris? As for promoting investment in the state, this proved difficult even before the onset of the insurgency. In the face of persisting violence, what incentives will Indian capital have to invest in Kashmir? For the government’s assurances about curbing violence are likely to prove hollow.

The government has repeatedly claimed that Article 370 fostered separatism and that its removal would pave the way for peace. In fact, the opposite is true: the arbitrary hollowing out of Kashmir’s autonomy prepared the ground for popular disaffection and widespread support for the insurgency. In the absence of credible mainstream leadership today, the insurgency will get a fillip.

As we enter a new cycle of violence, India’s democratic credentials are being questioned abroad. Responding to criticism of the government’s moves in the foreign press, Jaishankar insisted that ‘My reputation is not decided by a newspaper in New York.’¹⁵ The government, however, does care deeply about its standing abroad, especially the United States. New Delhi has obviously been discomfited by the hearings in US Congress on Kashmir and has been working its own channels of influence. The government’s moves have also given an opportunity to Pakistan and China to raise this issue in the United Nations. While New Delhi may seek comfort in the absence of any statement by the Security Council, Beijing has fired a diplomatic shot across the bow. As with the United States in the past, China may well find this a useful lever to pressure India from time to time and so force New Delhi to expend its diplomatic energies in defensive manoeuvres.

The abrogation of Kashmir’s autonomy was the culmination of a long-standing ideological project. But contrary to the hopes of its architects, it will further alienate the Kashmiris and perpetuate the ongoing cycle of violence. New Delhi will have to cope with this not only against the backdrop of support from Pakistan but also a far less conducive international context.

 

As we ponder what lies ahead, it is worth recalling JP’s sage advice to Indira Gandhi: ‘To think that we will eventually wear down the people and force them to accept at least passively the Union is to delude ourselves. That might conceivably have happened had Kashmir not been geographically located where it is. In its present location and with seething discontent among the people, it would never be left in peace by Pakistan. China is bound sooner or later to take a hand in the sport of fishing in troubled waters. With the issue settled to the satisfaction of the great majority of the people, the external mischief-makers would not find a favourable soil for sowing their mischief.’¹⁶

 

Footnotes:

1. Subrahmanyam Jaishankar, ‘Changing the Status of Jammu and Kashmir will Benefit All of India’, Financial Times, 24 September 2019. Accessed online at https://www.ft. com/content/4f0e297a-d3bd-11e9-8d46-8def889b4137

2. Ayyangar’s statement, Constituent Assembly Debates, vol. X, 17 October 1949, pp. 422-27.

3. Ayyangar’s reply, Constituent Assembly Debates, vol. VIII, 27 May 1949, p. 357.

4. For a lucid consideration of the constitutional issues raised by this order, see, Gautam Bhatia, ‘The Article 370 Amendments: Key Legal Issues’, 5 August 2019. Accessed online at https://indconlawphil.wordpress.com/2019/08/05/the-article-370-amendments-key-legal-issues/

5. Srinath Raghavan, War and Peace in Modern India: A Strategic History of the Nehru Years. Permanent Black, Ranikhet, 2010, pp. 219-25.

6. Lok Sabha Debates, vol. XII, 27 November 1963, cols. 1231-32.

7. https://www.youtube.com/watch?v=Brs_ KrCkND4

8. Ram Madhav, ‘A Time for New Leaders’, Indian Express, 22 August 2019. Accessed online at https://indianexpress.com/article/opinion/columns/jammu-kashmir-special-status-article-370-bjp-govt-amit-shah-5924896/

9. Wajahat Habibullah, My Kashmir: The Dying of the Light. Viking, New Delhi, 2001, p. 35.

10. Radha Kumar, Paradise at War: A Political History of Kashmir. Aleph, New Delhi, 2018, pp. 99-100.

11. Jayaprakash Narayan to Indira Gandhi, 23 June 1966. Accessed online at http://www.mainstreamweekly.net/article6668.html

12. Notes on Kaul’s meeting with Abdullah in October 1967, Subject File 13, T.N. Kaul Papers, Nehru Memorial Museum and Library (NMML), New Delhi.

13. Haksar to Indira Gandhi, 2 June 1972, P.N. Haksar Papers, NMML.

14. I.K. Gujral, Matters of Discretion: An Autobiography. Hay House, New Delhi, 2011, pp. 83-84.

15. https://indianexpress.com/article/india/ramnath-goenka-memorial-lecture-external-affairs-minister-subrahmanyam-jaishankar-6119611/

16. Jayaprakash Narayan to Indira Gandhi, 23 June 1966. Accessed online at http://www.mainstreamweekly.net/article6668.html