This story first appeared in The Wire
It may serve little purpose to dispel some of the myths around Article 370, now that India’s apex court appears have given its legal sanctity to some of them. Yet, truth must be told even long after the damage has been done.
The Supreme Court ruling on Article 370 has given a seal of finality to the loss of Jammu and Kashmir’s special status and relegated the subject to a matter of academic debates. The questions of whether this was done to suit the iron-fisted majoritarian policies of the government, and whether legal and historic facts were considered or skirted, will soon be reduced to the footnotes of history.
The realities will be forgotten. What will remain is the alteration of the relationship between Jammu and Kashmir and the Union of India which now hangs by flimsy excuses and not cemented by constitutionality. What also remains is the overwhelming celebration of a brute majority that sledgehammers the voice and sentiments of the people who have been impacted by this decision, who feel already betrayed, and will continue to be humiliated in the times to come.
The celebratory note is driven through words like “integration”, “unity”, “peace”, “end to terrorism” and “progress”. Distortions about Article 370 and what it signified will continue to be invoked, pedalled and amplified to reinforce a sense of triumphalism or to turn them into pivots of some election campaign.
Article 370 has been turned into a Mexican piñata signifying the seven deadly sins, and beating it is being deemed an act of faith by the blindfolded, who imagine and re-imagine the cardinal sins of this constitutional provision.
It may serve little purpose to dispel some of the myths around Article 370, now that India’s apex court appears have given its legal sanctity to some of them. Yet, truth must be told even long after the damage has been done. To this end, it is important to deconstruct two main myths.
Myth 1: Article 370 encouraged terrorism, hindered security interests
This myth is based on an erroneous understanding of Jammu and Kashmir’s history and the legality of Article 370.
Article 370 was part of the Indian Constitution. This would suggest that separatism in Jammu and Kashmir draws its strength from the provisions of the Indian Constitution and terrorists can operate only while weaponising these provisions.
Contrary to the Supreme Court verdict which relied on this distortion and stated that Article 370 was inserted due to a war-like situation in Jammu and Kashmir, the war was long over when Article 370 was ratified unanimously and the Indian Constitution adopted in 1949.
Article 370 was in existence for another four decades before insurgency started in Kashmir. The insurgency was decimated and reduced from thousands of armed guerillas to just over a hundred by 2010, and then gradually re-energised. Before Article 370 was demolished in 2019, there were about 200-250 militants operating in Kashmir. The numbers remain static despite Article 370 being bulldozed. In fact, militancy related incidents have spilled over to Rajouri-Poonch and the Chenab Valley of Jammu region in the last four years.
Though a ceasefire has been maintained along the Line of Control with Pakistan, which was also in place between 2003 and 2013 enabling the opening of trade and bus routes between the two parts of Jammu and Kashmir separated by the Line of Control, since 2019 the eastern borders in Ladakh have witnessed unusual and increased hostility, allowing China to guzzle up vast chunks of Indian territory.
Article 370 is not the cause of militancy or hostilities on the borders. To the contrary, whittling away of autonomy granted to Jammu and Kashmir under Article 370 was a contributing factor in provoking the 1989 insurgency or the recent Chinese incursions.
Myth 2: Article 370 was an obstacle to the unity and integrity of India
Article 370 was an affirmation of the special circumstances in which Jammu and Kashmir acceded to India and of the promises made by the Indian Union to the people of J&K. Contrary to popular perception, it did not weaken the integrity of the state; it strengthened it as it provided the constitutional and legal link to a state that was originally not a part of the Indian dominion when India and Pakistan were partitioned in August 1947. It was thus an affirmation of the integration of Jammu and Kashmir to India on the conditions of its special status within the Indian Constitution, the basis of which was the Instrument of Accession.
This affirmation further got a layer of legal and democratic sanctity when the Constitution of Jammu and Kashmir was framed by the Jammu and Kashmir Constituent Assembly and Article 370 was its foundational basis.
The Constitution of Jammu and Kashmir, 1956, starts with “We, the people of the State of Jammu and Kashmir, having solemnly resolved…to further define the existing relationship of the State with the Union of India…”
Section 3 of the Constitution lays down, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.” Section 5 states, “the executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.”
Section 147 prohibited any amendments to Section 3, further making the provision absolute.
The integration of the state was thus affirmed by an elected and democratically representative body, that supersedes all other previous proclamations, including the one by the royal heir apparent Yuvraj Karan Singh (which the court relied on). This meant that the people of Jammu and Kashmir had ratified Article 370, which was supposed to be temporary only till the J&K Constituent Assembly could take a final decision, and chose to be an integral part of the Indian Union while maintaining the state’s own federal autonomy.
Any other arrangement between Jammu and Kashmir and the Union of India, that torpedoes the people’s will through backdoor legislations endorsed by the court, may be technically legitimate but defies the basic principles of democracy which place people at the core of every decision-making process.
The new ‘Naya Kashmir’
The new arrangement of integration means that the territory has been integrated but the people have been weaned away. History has been instructive that the brutal attempts to manipulate Jammu and Kashmir’s politics and society have not helped integrate the people but caused more alienation, and a sense of humiliation and betrayal. With this final betrayal – signalling the lack of any hope of winning back the faith of the people – the foundation of a new ‘Naya Kashmir’ is being built over the old one.
This is a ‘Naya Kashmir’ where progress and development will be measured by the profits reaped by corporates, big businessmen with deep pockets and mining mafia from outside the state, while the permanent residents of the erstwhile state squabble for jobs, business ventures, land, basic essentials like electricity and water and bear the colossal consequences of the ecological vandalism that comes with reckless planning and development.
This is a ‘Naya Kashmir’ where selfie-taking tourists and tourism is deemed to be the sole index of the happiness and robustness of the state, even as local markets and roads outside the tourist areas begin to look like the ruins of some ancient site. The houses and business establishments will be bulldozed or attached on the most frivolous pretexts and JCBs will run over carts of vendors in beautification drives. In this ‘Naya Kashmir’, people will also lose jobs and be arrested for daring to speak or having dared to speak some 20 years ago, and the youth will be detained for democratically protesting over issues of unemployment and tribal rights.
Triumphalism over what
Many Indians – not only those who subscribe to majoritarian sentiments but even some of the so-called liberals – however, will rejoice mindless of the sense of loss and betrayal in Jammu and Kashmir (Ladakh included).
Are they rejoicing a ‘new era of peace? Terrorism continues to be a threat. History shows a directly proportional relationship between deepening trust deficit in Kashmir and insurgency. The sense of betrayal and lack of faith in Indian democracy has reached a new low – to a point from where it can go no further. Could this betrayal sow the seeds of another wave of virulent resistance, if not armed terrorism? It may not be a matter of if, but when.
Are they rejoicing the ‘calm and silence’? Nobody criticises the Indian government. No one talks about right to self-determination. Stone pelting has gone but that has been controlled under excessive repression and military jackboots. Beyond a point, this repression does not work. If and when there is a backfire effect, what would that look like? What would be the terms on which anyone smitten by a history of betrayals would want to negotiate?
Are they rejoicing the betrayal of the people who decided to be an integral part of the country seven decades ago? At least some of them would be rejoicing how the demography of the only Muslim-majority state in a ‘democratic, secular India’ can now be changed. How does that make Indian democracy look? What does it do it India’s global standing? Perhaps those who take pleasure in vilifying Muslims and wish to create a country where Muslims are reduced to second-rate citizens may also take pride in what they rejoice.
Are they rejoicing the butchery of India’s asymmetric federalism? How will a court verdict that sets a precedent that the government’s actions and motives cannot be challenged or deemed to be ill-intentioned impact India’s democracy and its federalism?
What next?
If at all there is a realisation of the monumental blunders made in watering down Article 370 and robbing Jammu and Kashmir of its autonomy, when it comes, much damage would have been done – not only in the region but also the rest of the country.
Even if some of it may be reparable, any road for a reach out to the people of Jammu and Kashmir, particularly its Muslim population, may be next to impossible. All bridges have been deliberately demolished. For now, it seems forever.