Jammu and Kashmir: the Legitimacy of Article 370

by NYLA ALI KHAN

Photograph Source: Motohiro Sunouchi – CC BY 2.0

Introduction

The recent unilateral decision of Prime Minister Modi’s government to revoke Article 370, which guaranteed the special status of Jammu and Kashmir; dismemberment of the State, and its diminishment are flagrant violations of the sovereign Constitution of India. These maneuvers jeopardize the federal structure of India. The erosion of the rights and privileges of a State is an unhealthy precedent to set in a diverse and federal country. The current curbing of political and civil rights in Jammu and Kashmir is deplorable.

Historical Perspective

On 26 October 1947, Maharaja Hari Singh signed the “Instrument of Accession” to India, officially ceding to the government of India jurisdiction over defense, foreign affairs and communications. The accession of J & K to India was accepted by Lord Mountbatten with the proviso that once political stability was established in the region, a referendum would be held in which the people of the State would either validate or veto the accession. After signing the Instrument of Accession, the maharaja appointed his political adversary, Sheikh Mohammad Abdullah, as the head of an interim government.

On 2 November 1947, Pandit Jawaharlal Nehru, the first Prime Minister of independent India, reiterated his government’s pledge to not only the people of Kashmir, but also to the international community, to hold a referendum in Indian and Pakistani-administered Jammu and Kashmir under the auspices of a world body like the United Nations, in order to determine whether the populace preferred to be affiliated with India or Pakistan. Nehru emphasized this commitment several times at public forums over the next few years.

In January 1948 India referred the Kashmir dispute to the United Nations. Prime Minister Nehru took the dispute with Pakistan over Kashmir beyond local and national boundaries by bringing it before the UN Security Council, and seeking a ratification of India’s “legal” claims over Kashmir. The UN reinforced Nehru’s pledge of holding a plebiscite in Kashmir, and in 1948 the Security Council established the United Nations Commission for India and Pakistan (UNCIP) to play the role of mediator in the Kashmir issue. The UNCIP adopted a resolution urging the government of Pakistan to cease the infiltration of tribal mercenaries and raiders into J & K. It also urged the government of India to demilitarize the State by “withdrawing their own forces from Jammu and Kashmir and reducing them progressively to the minimum strength required for the support of civil power in the maintenance of law and order.” The resolution proclaimed that once these conditions were fulfilled, the government of India would be obligated to hold a plebiscite in the State in order to either ratify or veto the accession of J & K to India.

In the meantime, the Government of Jammu and Kashmir negotiated with the central government to ensure that it would be allowed to function as a fully autonomous unit within the federation. Article 370 of the Constitution of India ensured that apart from defense, foreign affairs, and communications, decisions with regard to other matters would be determined with the consent of the Government of Jammu and Kashmir. There was a reason that special status was guaranteed to Jammu and Kashmir under Article 370 of the Indian Constitution. On 13 July 1950, the new government of J & K, headed by Sheikh Mohammad Abdullah, made a landmark decision.

“Between 1950 and 1952, 700,000 landless peasants, mostly Muslims in the Valley but including 250,000 lower-caste Hindus in the Jammu region, became peasant-proprietors as over a million acres were directly transferred to them, while another sizeable chunk of land passed to government-run collective farms. By the early 1960s, 2.8 million acres of farmland (rice being the principal crop in the Valley) and fruit orchards were under cultivation, worked by 2.8 million smallholding peasant-proprietor households.” (Bose 2003: 27–28)

This metamorphosis of the agrarian economy had groundbreaking political consequences. This revolutionary measure, which greatly improved the human development index in the State, would not have been possible without Article 370. The political logic of autonomy and Article 370 of the Indian Constitution was necessitated by the need to bring about socioeconomic transformations.

The legislative bill, which had orchestrated this transformation, won the unstinting support of thousands of erstwhile disenfranchised peasants. But displaced landlords and officials in the Dogra regime made no bones about their hatred of the political supremacy of the new class of Kashmiri Muslims. This hatred unleashed a reign of terror and brutality against the Valley’s new political class.

The “defining moment in Jammu and Kashmir’s post-Indian independence history” came in 1950 when disenfranchised peasants “were freed from the shackles of landlords through a law that gave them ownership rights on the land they tilled. . . . The sweeping land reforms under the Big Landed Estates Abolition Act passed on July 13, 1950, changed the complexion of Kashmiri society. The historical image of the emaciated local farmer in tatters, with sunken faces and listless eyes, toiling to fill the granaries of landlords changed overnight into one of a landowner who expected to benefit from the labor he had put in for generations” (Ahmed, F.). This program emphasized the necessity of abolishing exploitative landlordism without compensation and enfranchising tillers by granting them the lands they worked on. Many policy makers in the Indian subcontinent, political scientists, and economists have acknowledged the effectiveness and rigor of land reforms in Jammu and Kashmir, which benefited underprivileged farmers in all three parts of the State—Jammu, Kashmir, and Ladakh.

In August 1952, the government of J & K reiterated the commitment of to the principles of secularism and democracy which enabled the forging of ties with the Indian nation-state: “The supreme guarantee of our relationship with India is the identity of secular and democratic aspirations, which have guided the people of India as well as those of Jammu and Kashmir in their struggle for emancipation, and before which all constitutional safeguards will take a secondary position.” For the layperson, the “new Kashmir” in which the hitherto peripheralized Muslim population of the Valley and marginalized women would reinsert themselves into the language of belonging a welcome development.

But the nationalist project of the Praja Parishad had sought the subsumption of religious minorities into a centralized and authoritarian state since the 1940s. These integrative and centralist measures were met with massive opposition, which the government of India suppressed with bloody maneuvers. The volcanic nature of the protests in the Valley gave a veneer of legitimacy to its action of large-scale repression of leaders of the Plebiscite Front. Sheikh Mohammad Abdullah was also arrested, for the umpteenth time, under the Defense of India Rules, to further hush the voices of dissent.

Sheikh Mohammad Abdullah underlined in his letter to Shyama Prasad Mukherjee, founder of the Bharatiya Jan Sangh, in February 1953,

When talking about the constitutional aspect, it is sometimes conveniently forgotten that the Praja Parishad wants that Article 370 should be expunged from the Constitution. So far as we are concerned, we have maintained that the special position accorded to the State can alone be the source of a growing unity and closer association between the State and India. The Constituent Assembly of India took note of the special circumstances obtaining in the State and made provisions accordingly.

To entertain the doubt that the Muslims of Kashmir would now give up their secular ideals would be uncharitable, although the statements and the pronouncements made by the leaders of communal parties in India from time to time and the inspiration and guidance they are providing at the moment to the Praja Parishad leadership in Jammu is, no doubt, giving them a rude shock. But let me assure you and the people of India that the Muslims in Kashmir will not falter from their ideals even if they are left alone in this great battle for secularism and human brotherhood.

As I’ve said on other forums, the Constitution of India seeks to guarantee respect for the rule of law, the independence of the judiciary, and the integrity of the electoral process. But time and again, provisions of the Constitution of India have been breached in Kashmir, and the ideals that it enshrines have been forgotten. In Kashmir, rights relating to life, liberty, dignity of the people, and freedom of expression guaranteed by the Constitution, embodied in the fundamental covenants and enforceable by courts of law, have been flouted. The revocation of Article 370, without consultation, makes it clear that the much lauded parliamentary democracy in India has been unable to protect a genuine democratic set-up in Kashmir.

Heads of Governments cannot avoid their ethical and moral responsibilities toward the peoples of the States in a federal country. The lives of those people cannot be torn asunder by paramilitary forces and other “upholders” of the law.

Blow to Kashmiriyat 

“Kashmiriyat” was not handed down to me as an unachievable and abstract construct. On the contrary, it was crystallized for me as the eradication of a feudal structure and its insidious ramifications. It was the right of the tiller to the land he worked on. It was the unacceptability of any political solution that did not take the aspirations and demands of the Kashmiri people into consideration. It was the right of Kashmiris to high offices in education, the bureaucracy and government; the availability of medical and educational facilities in Jammu, Kashmir and Ladakh. It was the preservation of literatures and and historical artifacts that defined an important aspect of “Kashmiriyat.” It was the formation of the Constituent Assembly of J & K to institutionalize the Constitution of the State in 1951, which was an enormous leap toward the process of democratization. It was the fundamental right of both women and men to free education up to the university level. It was, constitutionally, equal opportunities afforded to both sexes in the workplace. It was the nurturing of a contact zone in social, political and intellectual ideologies and institutions. It was pride in a cultural identity that was generated in a space created by multiple perspectives.

Trust cannot be won and unity cannot be maintained by the display of national chauvinism and erosion of Kashmiriyat.

Nyla Ali Khan is the author of Fiction of Nationality in an Era of Transnationalism, Islam, Women, and Violence in Kashmir, The Life of a Kashmiri Woman, and the editor of The Parchment of Kashmir. Nyla Ali Khan has also served as an guest editor working on articles from the Jammu and Kashmir region for Oxford University Press (New York), helping to identify, commission, and review articles.

Could India Have Remained an Undivided Country?

(L to R) Pandit Jawaharlal Nehru, Lord Mountbatten and Mohammad Ali Jinnah

by ARSHAD KHAN

It would be a silly question indeed to ask why December 25th is celebrated.  On the other hand, one could ask why it is a national holiday in Pakistan, for it is not because it’s Christmas.  By an unusual coincidence it happens to be the birthday of Muhammad Ali Jinnah, the founding father of the country.  Exactly how Pakistan came into being is an interesting story as it also leads to the question whether the dismemberment of the Indian subcontinent — now three countries — could have been averted.

 
Jinnah started out as a voice for Hindu-Muslim unity, although wary of majoritarianism and Hindu domination.  A highly successful lawyer with patrician tastes, he was averse to mob violence and wanted constitutional independence — the British handing over to an elected Indian government and a constitution safeguarding the rights of minorities.
 
The first step was to seek Dominion status in which Indians would run their own affairs although subject to control by the British government.  Accordingly a London conference was convened.  The Round Table Conference began in grand style on November 30, 1930 with a plenary session at the House of Lords;  after which the participants retired to St. James Palace for the talks.

 
Hindu and Muslim members sought first to agree on a united front.  His Highness The Aga Khan was leading the delegation and also spoke for the Muslims.  Sir Chimanlal Setalvad, a prominent Hindu member, has written that the Aga Khan agreed to the Hindu demand for joint electorates, instead of separate Hindu and Muslim ones, but with the reservation of seats for Muslims, and he added magnanimously, “In that event you lead and we follow.”  Jaswant Singh describes (p. 178) what transpired in his excellent book, “Jinnah: India — Partition, Independence.”   Unfortunately the Hindu members receptive to the proposal were intimidated by the others and the Hindu Mahasaba (p. 179, ibid.), the precursor of the nationalist Hindutva movement.  Prime Minister Modi’s Bharataya Janata Party (BJP) has a Hindu nationalist fervor which has unmasked the BJP that was in power with Jaswant Singh as Foreign Minister.
 
Without a united front, the Round Table Conference was doomed.  The seeds of Pakistan had been sown, and as Jinnah repeatedly confronted majoritarianism devoid of any assurances for Muslims, his demands for Pakistan became more implacable.
 
The last chance for one India arrived in 1946 with the Cabinet Mission.  Field Marshal Viscount Archibald Percival Wavell served as Viceroy of India from 1943 to early 1947.  Lord Wavell hosted the Mission and served as a link to the parties i.e. Jinnah of the Muslim League and Nehru of the Congress Party.  The somewhat ingenious plan devised coalesced the provinces into four groups, the western provinces (now Pakistan), the east, the center and the south.  The first two were Muslim majority, the latter two Hindu.  The individual provinces would elect members to a group constituent assembly which would then select representatives for the central government in Delhi.  Equal Hindu and Muslim groups ensured reasonable parity in Delhi.
 
The interim government in Delhi that Wavell had in mind would consist of a council of twelve (p. 207, ibid.):  five from the Muslim League, five from Congress, one Sikh and one Dalit.  In accepting the plan and therefore less, Jinnah was putting his demand for Pakistan at risk.  The gesture was unappreciated for with each letter and each communication with Congress, Wavell’s original parity suffered dilution.  Moreover, Nehru even rejected the Cabinet Mission’s grouping plan claiming clearly falsely that, the “entire country is opposed” to it (p. 379, ibid.).
 
In the end there were fourteen members of the council without parity for Muslims.  The plan was formally rejected by the Muslim League on July 27, 1946 (p. 382, ibid.).  The era of a constitutional path to independence was over.   Jinnah and the Muslim League had tired of Nehru’s repeated shifts on positions critical to Muslim interests.
 
Thus the call for Direct Action.  The demonstrations began on August 16, 1946, and the confrontations led to riots leading to killings.  The British government recalled Wavell in February 1947.  Lord Mountbatten of Burma took over, and a precipitate rush to independence followed.  Group enmities resulted in a mania of  killing as Muslims fleeing violence in the new India and Hindus and Sikhs the same in Pakistan fled towards the borders without protection.  Over two million lost their lives before the cataclysm ended.  And occasional spasms still erupt such as the 2002 killings of Muslims in Gujarat during Modi’s rule plus numerous other incidents.

The leftovers include the continuing troubles in Indian Kashmir and the frequent blinding of the young during demonstrations.  The security forces eschew rubber bullets for pellet loaded shotguns.  The decades-long insurgency has cost the lives of up to 100,000 Kashmiris.
 
The two countries have fought four wars.  In the first, Pakistan wrested control of a third of Kashmir from India after the Maharaja seceded the state to India against the wishes of an overwhelming majority of his people.  In the third war, India repaid Pakistan in kind paving the way for East Pakistan to become the new country of Bangladesh.  The other two wars ended in the status quo ante.  If there is another war, the world could face a nuclear winter — about 300 nuclear weapons in the two countries are trained on each other.
 
What a price to pay for majoritarianism!  In the meantime, the new Modi government with its Hindu nationalist agenda and continuing contempt for secularism  — even centuries-old place names are being changed — confirms the fears of the Muslim minority, justifying their course of action during that fateful summer of 1946. 

Arshad M. Khan is a former professor who has, over many years, written occasionally for the print and often for online media outlets.