Thursday, 30 October 2014

Is Abrogating Article 370 a Mistake?

India is a country which embraced Federalism at the time of independence from Colonial rule with many nations existing within its ambit. A noteworthy instance in acknowledging the Federal polity in India is that of Jammu and Kashmir and Article 370 of the constitution which grants the state an autonomous status. Since the BJP-led government assumed office at the Centre in May 2014, the idea of abrogation of this article has been gaining steam. However, this move may jeopardize India’s already fragile relations with the state of Jammu and Kashmir and may lead to a forced Balkanisation of the state and defeat the idea of Cooperative Federalism with which article 370 was enacted.

On July 11, 2014, the Supreme Court of India dismissed a petition challenging the constitutional validity of Article 370. A bench of Chief Justice RM Lodha, Justice Pinaki Chandra Ghose and Justice Rohinton Fali Nariman dismissed the plea by Kumari Vijayalakshmi Jha, who argued that the article was a temporary provision that lapsed with the dissolution of the state's constituent assembly in 1957.

However, the impact that this proposed move would have on the Indian Federal structure are lost in the din of political rhetoric. Why has this article been the most debated one among all the provisions of the Indian constitution? What is the BJP’s interest in abrogating it and what impact would this action have on not only the people of Jammu and Kashmir, but also India as a whole? These are some of the aspects explored in this essay.

Brief History
At the time of independence, J&K was a Muslim majority state with a Hindu ruler, Raja Hari Singh. The state was a bone of contention between then newly formed Pakistan and India. Being a Muslim state, Pakistan demanded that the state be a part of that country while upholding the ideals of secularism, India staked claim at it.

There was no provision in the British approved partition plan which stated upfront that the Hindu Princely state must accede to India and the Muslim states to Pakistan. The accession of Junagadh was an example of the ambiguity consequent to this. Jinnah accepted the accession of Junagadh to Pakistan in 1947 despite it being predominantly a Hindu province and later a people’s movement revoked that decision and Junagadh became a part of India.

Article 370 was a result of a refusal by the Hindu King Raja Hari Singh of Jammu and Kashmir to join either India or Pakistan after partition. In order to retain sovereignty of the state, despite Pakistan’s claim over it owing to a Muslim majority in line with the two-nation theory, led to the state’s monarch siding with the Indian side under special circumstances.  All the other princely states had chosen sides among the two countries, however, owing to a political movement under the leadership of Sheikh Abdullah (Father of Farooque Abdullah; later formed the National Conference), who was opposed to merging with Pakistan, J&K was granted a special status. In 1947, coming under attack from NWFP tribes, an Instrument of Accession was signed between Hari Singh and India which agreed upon maintaining the state’s sovereignty unlike other princely states. What this meant in effect was that other than specific matters including defence, communications and foreign policy, the Indian Parliament would have to seek permission from J&K State Assembly before implementing any laws in the state. The article was accepted in the Constituent Assembly in 1947 and was adopted in the Constitution in October 1949.

In 1949, PM Nehru asked Abdullah, who was appointed as the PM of J&K to prepare a draft of the article (then called Draft Article 306-A) to be appended to the Constitution in consultation with Dr. Ambedkar.  The then Law Minister Dr. Ambedkar had refused to draft the article on the grounds that while Abdullah wanted India to defend and develop Kashmir and that Kashmiris have equal rights all over India, the same rights must not apply to citizens from other parts of the country in Kashmir. He felt that it was a betrayal of the national interest. On his refusal, the article was eventually drafted by Gopalaswami Ayengar who was a minister without a portfolio in the first Cabinet of India and a former Diwan of Hari Singh. After being introduced in the Constituent Assembly, the draft Article 306-A faced extensive opposition, with only Mualana Azad standing in its favour. However, with Pandit Nehru’s backing, it was adopted and implemented, initially as a temporary arrangement, with hopes of a full integration in time to come.

The idea of a Plebiscite in J&K to uphold the people’s voice of the state in framing the state’s constitution was taken up briefly in the beginning, being discarded eventually in 1949. The Constituent Assembly of J&K which was to be consulted for any Central Law to be implemented in the state was constituted in 1951 and dissolved in 1957 and in the absence of such a body, abrogation of the article 370 is simply unconstitutional.

Government’s interest in revoking article 370
The BJP has indicated in the past that once in power, it would work on abrogating Article 370. Now that they have a government at the Centre, this seems like an impending reality. A junior Minister in the Prime Minister’s Office, Jitendra Singh recently said in a statement “We are in the process of repealing Article 370 and are in talks with the stakeholders,” starting fresh speculations on the issue. Also veteran BJP leader L K Advani, in his blog, called for the same in order to facilitate Kashmir’s further integration into the country.  This blog was a tribute to the founder of Jan Sangh, Shyama Prasad Mukherjee who died in a jail in J&K in 1953 while leading agitation against the article.

The reason for BJP to want the article gone is rooted in the history of how it came about. Being a Right-wing Hindu Nationalist Party, the BJP maintains that after the implementation of Article 370 in J&K, Sheikh Abdullah was appointed the Prime Minister of the state. He brought about reforms in the state, especially pertaining to land which adversely affected the Kashmiri Hindus (especially the upper caste Pandits) and led to them being relegated in their social standing. The land-owning Hindu community, as a consequence to the law limiting maximum land individual holding of 22.75 acres, lost their land during the redistribution process where any surplus land holdings was distributed among the peasants who worked on it, mostly Kashmiri Muslims. This led to the idea of land redistribution mistaken for communalism.

Moreover, since 1950, on several occasions, various provisions of Article 370 have been overruled by Constitutional orders. As it stands now, out of 395 total articles in the Indian Constitution, 135 are alm0st identical to that of the J&K Constitution and 260 articles have been applied to J&K making the article virtually irrelevant. Although, officially, J&K still enjoys an autonomous status, in reality, the state is farther away from autonomy now than it was at the time of independence. 

Unfortunately, the larger implications of scrapping this legislation would impact India’s relations with J&K, a state which agreed to be a part of the country on the sole condition of retaining its autonomy. Any attempts at abrogating this article, would therefore, fuel the already-existent mass resentment against the Centre. The article, as it is, hasn’t been followed through in entirety, however, scrapping it completely would lead to a further trust deficit in the people of the sate towards the Union. For the BJP too, to move past the labels of being a majority-appeasing, radical Hindu party, it is important to drop this issue. Moreover, PM Modi, in his Republic Day message this year as the Chief Minister of Gujarat had emphasized on the critical importance of a vibrant and functional federal structure in India as the Centre may not always be able to do justice to the potential and needs of various states. Repealing article 370 wouldn’t uphold the same vibrant and functional federal structure he spoke about.   

Abrogating the article a mistake
There is a widespread opposition in the state against speculations of the Centre abrogating article 370 with the current government being politically opposed by both, the separatists and the NC.

Article 370 grants the state of J&K special provisions with regards to its political structure. This article, according to the constitution, can only be abrogated or modified by the President with the nod from the state government and an approval by the state’s constituent assembly. By this definition, constitutionally, the article cannot be abrogated because J&K’s constituent assembly was dissolved in 1957 after the accession of the state was deemed complete and ceases to exist now.

Since 1956, when the Indian constitution was amended at Bakshi Ghulam Mohammad’s insistence, J&K has slowly but steadily been losing the powers it was guaranteed under section 370. In 1957, the Delhi Amendment was applied to the state, abolishing the Sadr-e-Riyasat and PM position in J&K, replacing them with Governor and CM. There started the complete dilution of autonomy.

The provisions of the article have time and again been ignored by respective central governments in India and consequently, it has already been diluted to an extent of only remaining as a symbolic right to the people of J&K. However, abrogating it completely would send out a message to the Kashmiri population that the Centre has failed to recognize the state’s autonomy which was the essential condition at the time of accession. In an environment of an already high level of distrust in Kashmiris towards the Indian state, this move could be seen as an attempt to completely disregard their voice in the constitutional process, that they have no right over their own political fate.

Essentially, the problem is in the perception of how the article is seen by the central government and the state. The state sees it as a constitutional right to autonomy and self governance while the Centre sees it as an extended temporary provision which has run its course.

In 1949, India had taken the matter to the UN and thereafter, several resolutions were passed relating to it, most of which concluded that bilateral negotiations between India and Pakistan would be the only way to solve this conundrum. Despite that, there hasn’t been much said about the issue by either of the countries openly in the recent times, although, tensions remain on the surface.

There have been attempts within India to solve the tensions between the Centre and the state leadership, Beg-Parthasarthy Accord of 1975 being one of them. In 2010 also, a special group headed by Justice Saghir was sent by then Prime Minister Manmohan Singh to negotiate the terms of article 370 with the state. However, none of the efforts by any of the governments has yielded any concrete positive results.

If this article is abrogated, the next step would be the Balkanisation of the state into Jammu, Kashmir and Ladakh regions at the behest of the Centre. History proves that such a move can have only a detrimental impact on the people of such states. States emerging from erstwhile Yugoslavia serve as a reminder to this grim reality.

The call for abrogation is also indicative of a complete misunderstanding of Indian federalism which is founded in the theory of unequal federalism. The constitution has abundant provisions providing special status to various other states too. Then there are the Fifth and the Sixth Schedule for the Tribal and Northeastern states. Would these be revoked too in time to come?  How then would the centre protect the rights of those who have neither sufficient representation nor, adequate opportunities for progress? This unequal but special provision guarantee these protections to the most marginalized and neglected communities in India, revoking their rights would result in a sure descent into a similar undemocratic structure which our founding fathers opposed and fought against. 

Medha Chaturvedi

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