Expert Speak India Matters
Published on Aug 05, 2019
Temporary #Article 370 gone, federal control over #Kashmir is now final

Everybody anticipated something big. But nobody anticipated such a big bang, epochal decision. History was made twice over on Monday, August 5, 2019 when with one stroke Article 370 was abrogated (the attendant Article 35A would stand annulled) and the bifurcation of Jammu & Kashmir to make the (erstwhile) state federally administered was proposed. Once the proposal turns into law, as it shall, given the Modi Government’s determination, Jammu & Kashmir will become a Union Territory with a legislature, at par with Puducherry, while Ladakh will become a Union Territory directly administered by the Union Government.

Article 370 has been abrogated through a presidential notification that has already been published by the Gazette of India, giving it a stamp of finality. The bifurcation of Jammu & Kashmir and reclassification of the status of its three regions would be through an reorganisation bill. Several opposition parties, including the BSP, BJD, YSRCP, AIADMK and AAP, have supported the Government’s decision.

The abrogation of Article 370, which was listed as a temporary provision in India’s Constitution and accorded Jammu & Kashmir a ‘special’ status, different and separate from that of the other states of the Union of India, marks the fulfilment of a political commitment made by the Bharatiya Janata Party since the days of its previous avatar, the Bharatiya Jana Sangh. That commitment was reflected in successive election manifestoes of the BJP, and before that the BJS, and was on top of the list comprising the party’s ‘core agenda’. It dates back to BJS founder president Syama Prasad Mookerjee’s protest against Article 370 and his death after incarceration by Sheikh Abdullah, then the ‘premier’ of the erstwhile princely state.

Much as Prime Minister Atal Bihari Vajpayee wanted to see Article 370 go for the full and final integration of Jammu & Kashmir with the Union of India, he did not take the NDA1 Government down that route for two reasons. First, the BJP did not have a majority of its own and depended on the NDA1’s wafer thin parliamentary majority. The National Conference was a member of the alliance and Farooq Abdullah was a Minister in the Vajpayee Cabinet.

Second, despite his bitterly disappointing experience in dealing with Pakistan and the Kargil conflict, Vajpayee chose the softer option of dealing with separatists in Kashmir Valley by adopting the three-point policy of ‘Insaniyat, Kashmiriyat, Jamhooriyat’. Critics called it a voodoo policy and, truth be told, it did not yield the desired results. In any event, Vajpayee preferred to toe the soft line rather than push for disruptive change.

It would be legitimate to ask why Prime Minister Narendra Modi and his NDA2 did not risk this tectonic change in the status of Jammu & Kashmir during his first term. The reason is two-fold. He needed time for political consolidation; and, second, he needed a strong man to execute a policy with potentially far-reaching political consequences at home and abroad.

With Amit Shah as his Home Minister and a resounding ‘303’ electoral victory that has vested unprecedented power and authority in Modi, he has pushed ahead with key features of NDA3’s political agenda – criminalizing ‘triple talaq’, amending anti-terrorism laws and giving them teeth similar to TADA and POTA, and, now, abrogating Article 370 and opting for Jammu & Kashmir’s bifurcation along with reclassification of its status to allow greater and far-reaching federal control.

What does all this mean on the ground for Jammu & Kashmir and India?

First, the two-dynasty raj that has held back the percolation of democracy’s political, social and economic benefits ever since Maharaja Hari Singh signed the Instrument of Accession in October 1947 will now find it difficult to hold the state hostage to their caprices. A fresh delimitation will make powers more evenly balanced between Kashmir and Jammu. The planned increase in the number of seats in the legislative assembly from 107 to 114, with constituencies reserved for Scheduled Castes and Scheduled Tribes, will democratize representation. As a Union Territory, the Centre will have oversight on policy and control over key areas of governance like policing. Ladakh has long sought separation from Jammu & Kashmir and the proposed Union Territory status for this region will fulfil its political aspiration as well as enable direct federal administration free of interference by vested interests in the Valley.

Second, the abrogation of Article 370 and the assumed annulment of Article 35A means laws and rules unique to Jammu & Kashmir, including a separate penal code, state citizenship and restricted access to property and voting rights, will automatically abate. If necessary, they can be separately repealed.

Third, Kashmiri politicians who thought they were smart have been hoist on their own petard: The Sadar-e-Riyasat was to represent the will of the state assembly. That post evolved into that of Governor through an amendment initiated by a Kashmiri politician. The Governor has now exercised the authority that was vested in the Sadar-e-Riyasat and remains vested in him by default. His recommendation is legally that of the Assembly as the state is under Governor’s rule.

Fourth, the separatists, namely the Hurriyat and its proxies, have suffered a huge blow. Federal administration means a tougher law and order regime and greater accountability of the next elected government. With no ‘state’ to separate from the Union of India, they will be hard put to push their case for separation.

Fifth, Monday’s sweeping changes lays to rest the ghost of UN Security Council Resolution 47 of 1948. Seven decades on, any talk of a plebiscite to determine the future of Jammu & Kashmir is irrelevant, not in the least because Pakistan has force-changed the status of those parts of Kashmir it occupies and restoration of status quo ante is an impossibility. UN Secretary General Kofi Annan had buried UNSCR 47; Modi Government has conducted a long overdue requiem.

Sixth, the status of occupied territories also changes as a consequence of Monday’s policy shift. Aksai Chin, under Chinese occupation, is now Union Territory under direct control of New Delhi. Similarly, the occupied territory ceded by Pakistan to China and territory under Pakistani control will now be considered Union Territory and not disputed geography. How this plays out is open to speculation, but it is bound to impact India’s position on territory under foreign occupation. If ever there was any doubt about sovereign ownership, it is now being asserted with the full force of constitutional provisions and parliamentary approval.

History tells us that disruptive change is not without disruptive consequences. There is bound to be resistance to what the Prime Minister and his Home Minister have dared to do in the face of conventional wisdom that the political status quo called Jammu & Kashmir is best left undisturbed. Lethargy and loath, coupled with aversion to risk, prevented previous Prime Ministers from acting decisively even if they were convinced that Article 370 was an abomination, a wart that needed to be excised – for the betterment of the people of that state and unity of the nation.

Those who are arguing against abrogation of Article 370 by claiming that it served as a link between Jammu & Kashmir and the Union of India are being facetious. Jammu & Kashmir was integrated with India in October 1947 when Maharaja Hari Singh signed the Instrument of Accession. Article 370 came as a temporary provision in 1952. Article 35(A) came in 1954. Neither of these two articles can be even remotely considered as conditions precedent to accession. That is both logic and law.

Jawaharlal Nehru had predicted Article 370 would erode and disappear one day – “Ye ghiste, ghiste, ghis jayega”. With 50 presidential orders expanding the scope and role of the Union Government in Jammu & Kashmir, nothing much remained of Article 370 but it stood like a rock between alienation and integration. That rock got blasted on Monday.

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Kanchan Gupta

Kanchan Gupta

Kanchan Gupta was a Distinguished Fellow at ORF. His work focuses on Indias political economy. His areas of interest are domestic politics and the Middle ...

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