Let us accept, for argument's sake, that the abrogation of Article 370 is a positive step that will bring to Kashmir — as the government claims — prosperity, progress and security. Let us also accept that Article 370 was a temporary provision, and its abrogation was desirable seventy years after Independence. Finally, let us agree that, now that the abrogation of Article 370 has become the law, it is the patriotic duty of all Indians to support the government as it attempts to restore normalcy and transform Kashmir.
This being said, it is still a fact that the manner in which Article 370 was abrogated does not stand the test of constitutional propriety. This point of view is not about political partisanship, but a sober reading of the provisions of the Constitution. Article 3 of the Constitution states categorically that Parliament cannot form a new state by separation of territory from any state, increase or diminish the area of any state, or alter the boundaries of any state unless the Bill for this purpose “has been referred by the President to the legislature of that state for expressing its views thereon…”. Article 370 (3) also clearly states that the President may declare, by public notification, that Article 370 shall cease to be operative “provided that the recommendation of the Constituent Assembly of the state… shall be necessary before the President issues such a notification”. Jammu & Kashmir’s Constituent Assembly dissolved itself in 1957 without recommending either abrogation or amendment of Article 370.
The legislative assembly of J&K is the successor to the Constituent Assembly, and must, therefore, be the deemed institution that is mandated by the Constitution for recommending any change to Article 370.
In the face of such a categorical provision in the Constitution, what did the government do? It deferred the due elections in J&K, extended President’s rule, subsumed to itself through Parliament the powers of the Assembly under Article 356, dispensed with any need to consult with a duly elected state legislature, and used its brute majority in the Lok Sabha and a managed majority in the Rajya Sabha to do away with Article 370. It was a clever move, but not a constitutionally correct one. The repercussions of acting in such a way are not only legal. The people of J&K are flesh-and-blood citizens of our country. They are not some mechanical artefact outside the democratic fabric of India. If the Constitution says that their views need to be taken into account before a change of such tectonic proportions is imposed on them, then that should have been the way the government should have acted.
It can be argued that if the government had indeed acted on the recommendation of the J&K legislature, it would never have achieved its objective, because the legislature would never volitionally recommend the abrogation of Article 370. This is true, but I would still argue that the process should have been attempted, and any other course of action - such as the one taken now-should have had the fig leaf at least of an attempt to consult with the citizens of J&K. After all, a territory that was a state till the other day has been converted to a Union territory (UT), and the powers of its legislature drastically curbed in favour of those vested with the lieutenant governor. In the entire history of India, there have been occasions when a UT has been converted to a state, but never a case of a state converted to a UT. What has happened, therefore, is a very substantial change, and it matters to every other state in India how this has been done. To be sensitive to such matters is essential in a federal polity, because a wrong precedent opens the sluice gate to other constitutional misadventures, especially since the government now has an overwhelming majority in the Lok Sabha, and is able to produce one in the Rajya Sabha, too. The danger is that there are no checks and balances left in the arbitrary subversion of constitutional processes.
However, the fact of the matter is that Article 370 now stands read down. To do away with it — in the manner that the government did — is the easier part of a far more complex exercise. The real challenge begins now. The Kashmir valley is under siege. There is no internet, no mobile telephony, no cable network, no broadband, and because of the curfew, no freedom to move about freely. The government claims that attempts to restore normalcy have begun, and in this endeavour it has the support of every citizen of India.
India’s diplomacy too will face major challenges. There is no doubt that J&K — including Pakistan-occupied Kashmir (PoK) — is an integral part of India, and that what we do in J&K is our internal matter. However, Pakistan will do its utmost to internationalise the situation, and we must pro-actively gear up to provide a convincing rebuttal. There is also the apprehension of an increase in terrorism. Alienation is a fertile ground for creating militancy. In the current situation we have tarred by the same brush of condemnation even those leaders and political parties who were stakeholders in the democratic process, and were only till recently partners in a coalition with mainstream national parties. Almost certainly, Pakistan will seek to exploit the situation, and increase its sponsorship of terrorism. Our defence and paramilitary forces should be fully equipped to give a befitting reply to all such attempts.
The key imperative is that J&K needs a healing touch and a return to normalcy, in which the state is not only fully integrated with India legally but also emotionally. It can only be hoped that the PM's promise, in his address to the nation, that J&K will now see a quantum jump in investments, the creation of jobs, tourism and overall economic prosperity, becomes a reality. In this goal, the entire nation stands with him and the government. This is the time when we need to once again recall the slogan which Atal Bihari Vajpayee took to the people of J&K: Kashmiriyat, Jamhooriyat and Insaniyat.