Modi and Kashmiris

The Modi-led government needs to be thanked for stirring a wave of discourse about Jammu and Kashmir. Addressing his first rally in Jammu in December 2013, Modi kick-started a fresh debate on Article 370 of the Indian constitution, which provides a mechanism to the government of India to ‘govern’ Jammu and Kashmir.

Instead of orchestrating the ‘trademark BJP demand’ for abrogating this article, he sought a debate on it. And said, “Irrespective of whether it remains a part of the Indian constitution or not, the time has come for at least a debate to find whether Article 370 has benefited the common man in Jammu and Kashmir.” Some commentators attached significance to this statement as a realisation that this article could not just be wished away.

Whether the BJP had understood the inviolability of this article or not, it did bring it into sharp focus. Since the incorporation of this article in the constitution of India its only interpretation in the public domain was the one trumpeted by one political party – that this article was protecting the special status of the state.

The genesis of this article and its standing in the constitution of India showed that the future of the state was yet to be decided and had been drowned in the interpretations by ‘electoral-politicians’. Ironically, leaders and organisations championing the cause of the right to self-determination and demanding execution of the UN resolutions on Kashmir considered any debate or discussion on this article as strengthening the ‘dominant discourse’ or jumping on the bandwagon of diversionary politics of autonomy and self-rule.

Taking up the offer of debate by Narendra Modi, the Kashmir Centre For Social Development Studies (KCSDS) a Srinagar-based advocacy group on December 25, 2012 held a one-day conference at Srinagar. The conference was titled, ‘Article 370, UN and Kashmir Resolution’. In the most recent history of the state, it was the first ever conference on how Article 370 and UN resolution were dovetailed to each other and how the proviso ‘temporary’ attached to it connected it to the resolution of the Kashmir Dispute.

Constitutional wizards, legal luminaries and intelligentsia successfully deconstructed the myopic interpretations of Article 370 and its sub-heading: ‘temporary provision with respect to Jammu and Kashmir.’ On October 17, 1949, N Gopalaswami Ayyanger, member of the Constitution Drafting Committee as well as then cabinet minister, presenting the article (then draft Article 306 A), had categorically told the Constituent Assembly that the government of India was committed to hold a plebiscite in the Jammu and Kashmir state to allow the people there an opportunity to decide if they wanted to stay with the Republic of India or opt out of it.

He had made it known that this article was necessitated because the Kashmir dispute was in the United Nations. “We are still entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place when [the] Kashmir problem is satisfactorily settled.”

In the conference, Article 1 of the Indian constitution, which deals with the name and territory of India, and the states that form the Union of States, was also debated. This article was also applied to Jammu and Kashmir through Article 370 and “as a matter of fact could not provide for permanent accession of Jammu and Kashmir to [the] Union of India.”

The opinions that emerged during the discussion were almost in consonance with the findings by a team of lawyers that had been articulated in a White Paper on the ‘Constitutional Relationship of Kashmir With India’, published on June 23, 1964 by the Jammu and Kashmir Plebiscite Front. It is not only Article 370 that suggests that the final disposition of the state was yet to take place but “Article 253 of the Indian constitution also recognises Jammu and Kashmir as a territory whose final status is yet to be determined.”

Since Narendra Modi as prime ministerial candidate started the debate on Article 370, and it was picked up by an advocacy group in Srinagar, it has invited scores of columns both from Srinagar and outside. It also resulted in a sixty-page judgement from the Jammu and Kashmir High Court stating, among other things: “Jammu and Kashmir, while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other Princely States. And the state continues to enjoy special status to the extent of limited sovereignty retained by it.”

This order, when read in the context of the Instrument of Accession (notwithstanding the controversy surrounding it), amply suggests that accession is temporary and subject to a referendum.

In fact, decoding the straitjacketed state discourse, this article has started entering into people’s discourse outside Kashmir. Calling Article 370 as a “bedrock” for relations between the Kashmir state and the “rest of India” and commenting on the judgement of the Jammu and Kashmir High Court, The Hindu in an editorial on October 15 suggested to the BJP government that “it is far wiser for any dispensation to wait for a resolution of the dispute with Pakistan over the entirety of Kashmir’s territory before revisiting the state’s constitutional status. Any premature action on this front may be a needless misadventure.”

 Published in the News on 22-10-15