Waqas Farooq Kuttay and Muneeb Yousuf 28 September 2019
Last month, the Home Minister of India tabled a bill in the Rajya Sabha to reorganize the Jammu and Kashmir State. This bill was passed easily as BJP enjoys brute majority in both the houses. Special powers JK enjoyed under Article 370 were revoked by a presidential order. These two acts altered the relationship of J&K with rest of India. The state was bifurcated into two Union Territories––the Union Territory of Jammu and Kashmir with legislature and Union Territory of Ladakh. To better understand how this special provision (Art 370) was passed and became part of Indian Constitution, we need a little peek into ‘one of the days’ of its (Art 370) Constituent Assembly history.
On 17th of October 1949, barely a month before the adoption of Constitution, the Constituent Assembly was debating an important (to be) provisions of Constitution then known as Art 306A which later became Article 370. On the same day draft article would be moved in Constituent Assembly for vote. The members of Constituent Assembly from J&K had disagreed to original draft article and also to the revised draft few days ago, which was formulated by eminent lawyer N G Ayyangar and others. In the last minute Mr. Ayyangar moved a resolution to substitute the words ‘appointed’ by ‘for time being in office’(Clause 1, Sub clause (b) of draft Art 306 A), for the ‘Government of the State’ under the Maharaja’s Proclamation of 05.03.1948). Mr Ayyangar and Maulana Azad had failed to convince Sheikh and his colleagues to accept this last-minute change. In the evening, on the same day, Sheikh Abdullah would write a letter to Mr. Ayyangar expressing his displeasure for passing the draft (with change mentioned above) despite disagreement by members from state of J&K. Abdullah wrote that he and his colleagues were in lobby when Mr. Ayyangar and Maulana Azad came to them and asked whether they will accept the above change. Adbullah and his colleagues refused to entertain any such change. They already had reservations with the draft article (which Abdullah mentioned in the start of letter). This change made them more nervous. Despite reservations by members from State, and who still were discussing the matter in the lobby, the draft article with this new change was moved in Constituent Assembly (without presence of members from J&K). All the four rushed to the assembly to their respective seats (when someone told them that the draft has been moved and discussion on Article has started). Abdullah was angry and said that they could not believe that final draft was passed without the consent of members from State, therefore they desisted from taking part in the debate. Abdullah wanted Ayyangar and team to rectify the mistake, otherwise members from State would tend their resignation.
After one day, on 18th October 1949, Abdullah got a strong worded reply from Mr. Ayyangar. Ayyangar wrote that he did not want to deal with the history of drafting and passing of Art 306 A, as no dissent note was raised against the contents of Article (from a Constituent Assembly of which only four members were from J&K and all the rest from mainland India, and the four members had already been bypassed by majority). Mr. Ayyangar also acknowledges that he and Maulana Azad failed to convince the members from State to agree to the changes made at the last minute to the draft (still the draft was passed and changes were made without the consent of members from J&K in a Constituent Assembly which was supposed to work on principal of consensus rather than brute majority). Ayyangar argued that he followed all the procedures while formulating the draft of Art 306 A, he had also entertained the objections raised by Abdullah on it few days ago, and as far as trivial change of word ‘appointed’ substituted with ‘for time being in office’ is concerned, it is of very little importance. This change does not affect the substance of Art 306 A (this trivial change would be instrumental in removing Sheikh from office in 1953). He further tells Sheikh that there is nothing in Art 306 A which needs rectification, and Sheikh and his colleagues, if they feel as such, can raise their objections (which they did not during the passing of the draft Article) according to the rules of house, and if there are any concrete grounds for such objections, they will be dealt meaningfully and accordingly. (See Art 370: A Constitutional History of Jammu and Kashmir by A G Noorani, Oxford India Publications, 2011, 2014, pp 62-76).
That was the one of the first betrayals slapped on the face of Kashmiri leadership by the Indian leadership, and this unilateral decision of the Constituent Assembly/Government of India sow seeds of doubt in the mind of Sheikh Abdullah over his endorsement of Accession (which would ultimately lead to his arrest in 1953). The ‘Silsila’ of betrayals wouldn’t stop here, there are many and all are well documented. We would not go in all of that, rather our focus is on the opinions/voices raised against the revocation of Art 370 in mainland India, Kashmir (in past and those living outside Kashmir) and by some separatist groups (in past). Many of these voices said that any decision on revocation should have been taken democratically, with people of J&K on board and not with the force of majority in parliament, others argued that historical promises towards Kashmiris should have been respected, whatever the arguments, the crux is that lot of people were unhappy with the decision of the government. Even we and our friends living in Delhi were unhappy with this decision. Sadness loomed on faces for many days after revocation; no one looked happy, as government claimed. But my question is whether Kashmiris should be unhappy, or should they feel betrayed with the decision of the Government on revoking of Art 370?
Art 370 was part of the Indian Constitution (and still is in a defunct state), and a Kashmiri with separatist leanings, who does not believe in Indian constitution, logically does not believe in Art 370 also, since it is part of the same Constitution. Second, Art 370 was an empty shell with most of the provisions of Indian constitution applicable to erstwhile state. Third, most of the provisions of this article were removed undemocratically by earlier governments, therefore BJP has done nothing new. Fourth, State Subject (now known as Art 35 A) was a Dogra edict ( of 1927) supported by Dogras and Kashmiri Pandits who dominated state services, and did not want to partake jobs with more qualified outsiders at that time, it was never demanded by the Kashmiri Muslims or Muslims of the whole State. And Art 370 was negotiated with government of India by Sheikh Abdullah and his colleagues. The members from the State to Constituent Assembly (of India) were not democratically elected, therefore, it was Sheikh and his entourage who negotiated terms with the Government of India and not the people of State. Art 370 was never the Article of the people of J&K. From 1947 (till 2019) it was (and still remains) the Article of National Conference, even People’s Democratic Party has flaunted and romanced with idea of Self-Rule. Therefore, those who argue for restoration and lament the demise of Art 370 and Art 35A are basically doing it for National Conference, since it was brainchild of this party. It was Sheikh Abdullah’s redemption and compensation for the historical blunder he made.
Coming to Separatists (of all shades), the main plank has been Independence from Indian State and not autonomy. SAS Geelani is not even ready to talk to government until his conditions are accepted by Indian state, one of the conditions being complete de-militarization of the state and acceptance of J&K as dispute. Separatists see Indian state as an occupier, oppressor and colonial power, therefore, asking for favour like Art 370 or 35A from Indian state or protesting its revocation will be contradictory with their stand. Some Separatist organisations from time to time have stood for protection of both these articles arguing that it protects historical nature and boundaries of the disputed state, but Pakistani state has already brought several changes altering the very ‘originality of the dispute’. In 1970s the Zulfiqar Ali’s government removed the state subject rule and a steady demographic change has been happening steadily for decades.
There are concerns though that revocation of Art 370 and 35 A is intended to change the demography of J&K by flooding Hindus from mainland India, on lines of Tibet and Palestine, and by giving citizenship to West Pakistan Refugees. Delimitation of seats in the UT may get Jammu region more seats in State Assembly which may be used to the advantage of central government in near future. Both concerns are genuine but as of now even JK BJP wants domicile laws to be retained so that the land purchase and jobs remain with the local population, and also to check influx of people from outside state (now UT). All opposition leaders in Jammu region are under detention, no political party except BJP has come in support of revocation of Art 370. There was no mass euphoria in Jammu region over revocation of both Articles.
In the last month, several Indian influential intellectuals wrote on the revocation of Art 370 and 35A. Many of them lamented on the undemocratic way, this was executed and its ramifications for Kashmir and people of India. The step (revocation of Art 370 and 35A and reducing a full-fledged state to UT without consulting the local elected representatives) may have ramifications for India. It may be a bad precedent which will affect the federal structure or create fears in leaders of other States about increasing centralization of the Indian federal polity (on same grounds decision may be challenged and even nullified after few years by Supreme Court) but fact is that it has nothing to do with Kashmir dispute. As Dr. Aman Hingorani rightly puts it that “…the genesis of Kashmir issue does not lie in Art 370. The Kashmir issue is much wider and multi-layered…” (Indian Express, 13.08.2019). This is the correct reading of the dispute in J&K, the people (of Kashmir) if they want to struggle against Indian Union, they can do it with or without the presence of Art 370 and Art 35 A. There is no denying that the dynamics of the dispute will change, and these changed dynamics will also depend on how Separatist and people adapt to the changes made.
Waqas Farooq Kuttay and Muneeb Yousuf are Research Scholars at Jamia Millia Islamia, New Delhi.