The paradox of Indian liberal thought on Kashmir and Article 370

Burhan Majid

DURING A TELEVISION interview with India Today in December 2023, the late jurist Fali Sam Nariman, one of the country’s more prominent liberal voices, defended the Supreme Court of India’s verdict that month endorsing the abrogation of Article 370 – the part of the Indian constitution that recognised Jammu and Kashmir’s special, semi-autonomous status within the Indian Union, which the Indian government had done away with in 2019. The move also entailed stripping Jammu and Kashmir of its statehood.

According to Nariman, the appropriate procedure for the government to effect the abrogation should have been through Article 368, which outlines the process for constitutional amendments. The government, under the Bharatiya Janata Party (BJP), had forced the move through unilaterally via a presidential order under Article 370 itself, and then enforced its will in Kashmir with a brutal lockdown and internet blackout.

In reality, even amendments to the Indian constitution made under Article 368 were subject to the procedural requirements outlined in Article 370 for them to be applicable to Jammu and Kashmir. This is explicitly reinforced by the first Constitution (Application to Jammu and Kashmir) Order of 1954, also known as the Basic Order, which was issued under Article 370. But Nariman prioritised the procedural aspects of the government’s move over the question of its inherent legality, and in doing so chose to overlook the limitations set out in the constitutional framework that governed India’s relationship with Kashmir after Independence.

Nariman’s seemingly critical but blinkered point of view reflected a broader trend among much of India’s liberal intelligentsia on Article 370, just as on all things Kashmir.

That same month, another prominent public intellectual, Pratap Bhanu Mehta, criticised the government’s move and the court’s ruling in an opinion piece for the Indian Express, where he focused on the implications for federalism across India. Showing a selective ignorance similar to Nariman’s, Mehta conspicuously ignored the political context surrounding the dismantling of Kashmir’s constitutional autonomy – which, in a country ruled by an avowedly Hindu nationalist party, also killed off the only Muslim-majority state and placed it under the direct rule of New Delhi. The abrogation of Article 370 stemmed from the BJP’s longstanding agenda to fully “integrate” Jammu and Kashmir into India’s national framework. In typical style, Mehta shrouded his analysis with conditionals and questions. “How people assess this judgement will be determined by how our political history turns,” he wrote. “In one way, the abrogation of Article 370 moves history forward.” He positioned it as an attempt to “cut the Gordian Knot” left by the settlements of the late 1940s and 1950s that created the framework of Kashmir and India’s constitutional relationship.

In an earlier article, published the day after the abrogation in 2019, Mehta had adopted a similar tack. Rather than critique the abrogation and the dismemberment of Jammu and Kashmir on its own terms, Mehta wrote: “This moment is also a dry run for the political desecration that may follow in the rest of India.”

The YouTuber Dhruv Rathee, immensely popular among young Indian liberals and a persistent thorn in the BJP’s side, also fell in line with the government when it came to Article 370. He, too, sidestepped the complex historical and political contexts of Kashmir’s relationship with India and instead fell back on a hopeful but ill-informed rhetoric of “peace” and “economic progress”. Rathee enthused, “Finally, BJP has fulfilled its long-time promise!”

NARIMAN, MEHTA, RATHEE and the wider Indian liberal intelligentsia often interpret Kashmir through a state-centric, hegemonic framework that tends to downplay the distinct constitutional history that has underpinned the relationship between Jammu and Kashmir and the Indian Union. In doing so, they contribute to the erasure of this history through a violent production of knowledge that blurs the line between state narratives and epistemic truths. Much academic work shows how scholarship has been shaped to “depoliticise” Kashmir, obscuring the political distinctiveness it retained when acceding to the Indian Union in 1947.

A recent book by the senior advocate Aman Hingorani, Unravelling the Kashmir Knot – endorsed by a wide range of the Indian liberal intellectual elite, including a stalwart of legal scholarship like Upendra Baxi – underscores this point. Hingorani’s work is grounded in a grievance against the Indian state: he argues that it has failed to do enough to resolve the issue of Kashmir – that is, to integrate the territory – within the Indian framework.

Hingorani argues that Article 370 was “merely a feature of asymmetrical federalism,” effectively disregarding the fact that Jammu and Kashmir retained “internal sovereignty” through both the Instrument of Accession of 1947 and Article 370 itself as part of India’s constitution-making process. In a no-holds-barred claim, Hingorani further asserts that “there was nothing in Article 370 that could have prevented the proposed J&K Constituent Assembly from ceding all matters to the Indian Union or merging the territory of J&K with the Indian Union, had it chosen to do so.”

Hingorani writes as though the constituent assembly of Jammu and Kashmir was convened solely to merge the erstwhile princely state with India, pointedly overlooking the historical and constitutional context behind its formation in 1951. In reality, the constituent assembly emerged from negotiations between India’s first prime minister, Jawaharlal Nehru, and Jammu and Kashmir’s prime minister, Sheikh Mohammad Abdullah, to determine the extent of the powers ceded to India’s Union government beyond those already outlined in the Instrument of Accession. Its mandate included facilitating the transfer of “internal sovereignty” and “constituent power” from the Maharaja of Jammu and Kashmir to the people.

At the time of Partition, Jammu and Kashmir was ruled by the Dogra monarchy. Following conditional accession to the Indian Union by Maharaja Hari Singh, an interim government led by Abdullah was allowed to elect a constituent assembly to define the contours of a constitution for Jammu and Kashmir and to draft its own laws. The process culminated in the adoption of the state constitution, which came into force in January 1957. This directly contradicts Hingorani’s interpretation of Jammu and Kashmir’s constituent assembly as well as of Article 370 – which, in fact, enabled the constituent assembly’s convening.

The fact of the transfer of “internal sovereignty” and “constituent power” from the Maharaja to the people is reinforced by the report of the Basic Principles Committee of the state’s constituent assembly. The committee stated that “the sovereignty of the State resides in the people thereof and shall except in regard to matters specifically entrusted to the Union be exercised on their behalf by the various organs of the State.”

In his first speech on Kashmir as prime minister, Nehru echoed the unique relationship between Jammu and Kashmir and the Indian Union, famously asserting that “the fate of Kashmir is ultimately to be decided by the people.” He characterised the accession to India as both conditional and temporary. “We will not and cannot back out of it,” he emphasised. “We are prepared, when peace and law and order have been established, to have a referendum held under international auspices like the United Nations.”

In post-colonial India, Jammu and Kashmir occupied a unique position, distinct from that of the over 500 other princely states that acceded to the Indian Union. The Instrument of Accession, signed by the Maharaja in 1947, outlined this exceptional arrangement, reserving legislative authority over all matters except defence, external affairs and communication. While most Indian states merged with the Union after Independence, Jammu and Kashmir negotiated its terms of membership. These terms were later codified in Article 370, which solidified this unique relationship.

Simply put, the extension of the provisions of the Indian constitution to Jammu and Kashmir required “consultation” on matters related to the Instrument of Accession and “concurrence” on others, as outlined in Clause (2) of Article 370. This meant that the consent of the state’s constituent assembly, once convened in 1951, was necessary for any further decisions. Notably, since the Jammu and Kashmir constituent assembly was dissolved in 1957, all Constitution Application orders issued under Article 370 after the Basic Order of 1954 were unconstitutional.

Hingorani unabashedly advocates the use of legal mechanisms to generate momentum for “resolving” the Kashmir issue. His fixation on Kashmir’s territory – treating it almost as mere property – is striking. He argues that the solution to the Kashmir question does not lie in Article 370 or its abrogation, but in “depoliticising” the issue. This mirrors the Indian government’s overly nationalistic, muscular approach to Kashmir.

For Hingorani, the key to resolving Kashmir is not constitutional change but the reclaiming of territory in the Jammu and Kashmir region controlled by Pakistan and China. He contends that this can be accomplished if the Indian government refers the matter to the International Court of Justice (ICJ). Hingorani’s interpretation of Kashmir’s constitutional autonomy holds the Indian leadership responsible for repeatedly pledging, from 1947 onwards, to hold a plebiscite in Kashmir. This, he argues, has led the international community to view Jammu and Kashmir as a “disputed territory”, thereby legitimising “terrorism” and the “secessionist movement”. This is akin to the BJP’s justification for abrogating Article 370, which it also linked to controlling “terrorism”. However, Hingorani overlooks a crucial point: the 1948 United Nations Security Council resolution subjecting the finality of Jammu and Kashmir’s provisional accession to the will of its people.

What is even more troubling is how Hingorani provocatively inverts Jammu and Kashmir’s conditional accession to India, suggesting that the Maharaja was the “sole repository” of sovereignty and that New Delhi had no authority to revisit Jammu and Kashmir’s accession or subject it to “the will of the people.” Strangely, Hingorani argues that sovereignty never vested in the people of Jammu and Kashmir in the first place. As he writes:

THE LIBERAL VALIDATION of the Indian government’s treatment of Kashmir predates the rise of the BJP to national power. It has been a cornerstone for not only the Indian intellectual elite but also progressive political parties, ostensibly liberal constitutional courts, and more broadly for Indian civil society’s stance on Kashmir. India’s star liberals tap into moral outrage when it is politically expedient, yet become curiously passive when it is not, offering only muted critique of government actions.

On Kashmir, even otherwise opposed political parties and ideologies manage to converge. Right after the BJP government’s abrogation of Article 370, in August 2019, the Aam Aadmi Party leader and Delhi chief minister Arvind Kejriwal, then gearing up to fight the BJP in a looming Delhi assembly election, tweeted his endorsement of the move. “We support the government on its decisions on J&K,” Kejriwal wrote. “We hope this will bring peace and development in the state.”

Many other regional parties – including the Biju Janata Dal, the Telangana Rashtra Samithi, the Telugu Desam Party and the YSR Congress – also threw their support behind the government.

Even within parties fundamentally antithetical to the BJP, individual politicians expressed their approval. The Trinamool Congress’s Sukhendu Sekhar Roy tweeted, “Decades old Comedy of Errors are being rectified now. It was a thunderbolt today. Many more in the offing? Change is the wheel of our national life. We are mortals. But the nation is not.” What is this if not disturbing evidence of collusion between liberals and conservatives when it comes to Kashmir and its assertion of autonomy and political rights?

Worse still is the Indian National Congress’s stance on Article 370, especially considering its role as a historical architect of the constitutional relationship between Jammu and Kashmir and India. While the party has criticised the BJP’s “methods”, its own historical actions on Kashmir raise questions over its commitment to the constitutional protections granted to Jammu and Kashmir at the inception.

Tamil Nadu’s Dravida Munnetra Kazhagam stands out as the only exception. In its manifesto for the 2024 Indian election, the party boldly criticised the abrogation of Article 370 and the dismantling of Jammu and Kashmir’s statehood.

The Indian political elite’s betrayal of Kashmir is not merely a manifestation of the ascendant Hindu nationalist worldview of the BJP and its parent, the Rashtriya Swayamsevak Sangh. Rather, the methodical erosion of Kashmir’s constitutional protections has been afoot since 1953 – the year that a Congress government in New Delhi removed Sheikh Abdullah as the prime minister of Jammu and Kashmir and had him jailed.

Nehru, the Congress supremo, himself signalled the gradual undermining of Article 370. He not only dismissed its significance but also endorsed its transformation into a hollow shell. In a November 1963 speech in the Indian parliament, Nehru boasted that Article 370

By portraying Article 370 as a mechanism for Kashmir’s “integration” rather than protection, Nehru effectively set the stage for the gradual undoing of Jammu and Kashmir’s constitutional autonomy. This perspective mirrors the Congress’s present-day balancing act between acknowledging regional autonomy and pushing for national uniformity.

In a revealing statement in December 1964, Gulzari Lal Nanda, then India’s home minister, outlined Article 370’s instrumental role as a “tunnel” for expanding the Indian constitution’s reach into Jammu and Kashmir. He detailed how several executive orders had subverted the state’s autonomy. As Nanda explained,

Nanda went on to claim that while the elaborate procedure laid down in Article 368 must be followed for any normal constitutional amendment, when it came to constitutional amendments affecting Jammu and Kashmir all that is needed is an executive order by the president of India under Article 370. In the years that followed, this interpretation became the norm, eventually enabling the Indian government to dismantle even the last remnants of Jammu and Kashmir’s autonomy in 2019.

Such veiled trickery was on full display in the unconstitutional manoeuvres that replaced elected roles in Jammu and Kashmir with centrally nominated positions, even subjecting the state’s constitution to executive orders from New Delhi. For instance, a constitutional amendment in 1966 saw the elected “Sadr-i-Riyasat” replaced with a New Delhi-nominated governor, effectively transferring to the Indian government the authority to amend both the Indian and the Jammu and Kashmir constitutions. Additionally, the amendment reduced the title of the prime minister of Jammu and Kashmir to that of chief minister, further eroding the region’s unique political identity.

Despite Indian assurances of respect for Kashmir’s uniqueness, in reality there has been little of this. In 1995, the Indian prime minister, P V Narasimha Rao, famously stated about Kashmir that the sky was the limit and short of independence, any demands can be considered. A year later, another prime minister, H D Deve Gowda, promised “maximum autonomy” to be discussed with people’s representatives. Yet the Indian government, far from translating these promises into practice, continued to progressively strip Jammu and Kashmir of its autonomy. This pattern of unfulfilled commitments harkened back to the promises made by Nehru himself.

EVEN INDEPENDENT INSTITUTIONS like the Supreme Court of India have gone along with the Indian government’s actions regarding Kashmir. Besides facilitating the hollowing out of Article 370, the Supreme Court has also endorsed executive actions in blatant disregard of constitutional guarantees enshrined in both the article and the Jammu and Kashmir constitution. Its decisions have often been marked by political rhetoric. When, in December 2023, the court supported the unilateral abrogation of Article 370, it cited “integration” and India’s “sovereignty” as justifications. The court remarked that Article 370

That the judiciary’s alignment here with the political executive was not a primary concern for Nariman, Mehta, Rathee and their fellows raises significant concerns about Indian liberals’ willingness or ability to critique the powers that be, particularly when it comes to Kashmir. Is India’s liberal intelligentsia truly the force of accountability that it makes itself out to be?

Whether out of ignorance or fear of persecution, Indian liberals roundly fail to hold the Indian government to its promises to Kashmir. Hingorani’s book stands as a potent illustration of the statist interpretation of Kashmir, wherein legal frameworks are to be leveraged to systematically erase the Kashmiri people from the narrative.△