Echoes of Sikkim can be heard in the revived controversy over the status of Jammu and Kashmir. The law may be on the side of sovereignty, but laws are made by people and the ultimate decision will be taken by whoever controls the crowds. In Sikkim, it was the Centre acting through agencies like Research and Analysis Wing. As A.S. Dulat, the former R&AW chief, tells us in his recently published memoirs, Kashmir: The Vajpayee Years, the Intelligence Bureau is “the key to the Central government’s hold on Kashmir.”
In 1975, when the mob that R&AW and other agencies mobilised and manipulated in Sikkim demanded blatantly un-constitutional changes, Gurbachan Singh, New Delhi’s man in Gangtok and a R&AW functionary, declared blandly, “Revolutions evolve their own constitutionality!” No doubt any government at the Centre — not just Narendra Modi’s — would love to use that expedient theory somehow to dismantle Article 370 of the Constitution. But, as stated by Justices Muza-ffar Hussain Attar and Ali Mohammad Magray of the Jammu and Kashmir high court last week, “legally and constitutionally” the sovereignty of J&K remained “intact and untampered” even after Maharaja Hari Singh signed the Instrument of Accession.
At a simple level, Kashmir’s integration with the rest of the country will remain incomplete so long as the state is demographically distinctive like Nagaland or Arunachal Pradesh. The British realised this in Sikkim in the 19th century and encouraged Hindu Nepalese migration to dilute the kingdom’s Buddhist Bhuti-ya-Lepcha ethos. Mehbooba Mufti’s People’s Democratic Party government and Omar Abdullah’s National Conference tried in 2004 to weaken a unique Kashmir institution (that of permanent resident) through a Permanent Residents (Disqualification) Bill. It sought to undo a 2002 High Court ruling saying a permanent resident (a category the maharajas created in the 1920s) who was female remained a PR and retained their special rights even after marrying a non-PR. It’s another matter that for some reason the bill didn’t finally become law.
Identity lies at the heart of separatist politics. Just as the protected kingdom of Sikkim had entrusted defence, foreign affairs and communications to India, these were also the only three subjects that Maharaja Hari Singh transferred to New Delhi in 1947. Only those who are totally ignorant of international treaties and constitutional law argue that despite this limited accession, the state of Jammu and Kashmir is an integral part of India. We might treat it as such in many respects but, juridically, it is not.
Two factors are principally responsible for blurring Kashmir’s constitutional position. First, Pakistan’s relentless hostility and repeated military aggression generates a sense of militant righteousness in this country. Second, the gradual erosion, mainly through the back door, of the state’s special rights makes Kashmir seem like other states. Apart from laws enacted in New Delhi or adopted under pressure in Srinagar, the substitution of the terms Sadr-i-Riyasat and Prime Minister with governor and chief minister is part of the process of erasing Kashmir’s identity.
Sheikh Mohammed Abdullah, architect of Kashmir’s accession to India, was deeply upset when Article 370 was placed in the “Tem-porary and Transitional Provisions” of Part XXI of the Constitution. Fearing for the state’s special status, he demanded “iron clad guarantees of autonomy” and eventually raised the banner of independence. He was thrown out of office and into jail. Many Kashmiri Muslims saw his 1974 accord with Indira Gandhi — stating, “The state of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India” — as betrayal. He might have retorted that, at least, the accord succeeded in extracting the Centre’s renewed commitment to Article 370.
Ram Jethmalani’s informed view that Article 370 cannot be touched because it “is a part of the basic structure of the Constitution” and has been “incorporated in accordance with the wishes of the then Constituent Assembly of Jammu and Kashmir” is worth noting. Less informed Hindu chauvinists argue that a public notification by the President of India under Article 370(3) can declare that Article 370 has ceased to be operative. Others say Article 370 can be amended by an Act under Article 368 of the Constitution and the amendment extended under Article 370(1). However, my Kashmiri friends point to legal obstacles — Article 147 of their own state’s Constitution forbids the introduction in either house of any measure seeking to change the Indian Constitution’s provisions regarding the state.
As Sikkim’s annexation proved, legal niceties are really irrelevant. What matters is what can be forced through in the name of the people. Pakistanis claim that no matter who wins their elections, the Inter-Services Intelligence remains in power. Kashmiris will probably say that no matter who struts on the stage in Kashmir as CM — and some have been New Delhi’s lackeys appointed through heavily rigged elections — the IB really rules the state.
I can understand the Bharatiya Janata Party’s 2009 election manifesto saying Article 370 poses “a psychological barrier for the full integration of the people of Jammu and Kashmir with the national mainstream” and that the party “remains committed to the abrogation of this Article”. But that is an emotional argument that can be countered by two points. First, however unpalatable many readers might find this, Jammu and Kashmir is not a part of the Indian Union. It joined India only in respect of defence, foreign affairs and communications. Second, no matter what clever legal innovations are devised in New Delhi, they will not win over hearts and minds in Kashmir.
Revoking Article 370 would at best be an exercise in futility. The greater danger is it might intensify the conflagration by turning even moderates into extremists.
The writer is a senior journalist, columnist and author
