By Balkanizing the state of Jammu & Kashmir into two Union Territories and reconfiguring its constitutional relationship with the Indian Union, the NDA/BJP government has entered into a copse of Grey whose hues, tints, tones, and shades are going to challenge the resilience of the Indian state as never before.
The Constitutional Grey: the central government ignored the explicit mandate of Article Three of the Constitution of India – that provides that, before you gerrymander with the boundaries of a state — consultation with the legislature of that state is an essential pre-requisite. For what consultation with the state legislature really implies is ascertaining the will of the people of that state. Parliament must have a measure of the collective will of the people of that state in its purview before it embarks upon reorganizing that state. The method adopted by the current government has portentous implications on the entire federal scheme and the relationship between the Centre and States. For what it implies is that in future the central government can put any state under President’s rule, suspend/dissolve its legislature and claim that now the power of the state legislature vests in Parliament, the Union legislature in consultation with itself has the mandate to rejig the map of India is nothing short of constitutional chicanery, to put it mildly.
Then the ludicrous manner in which the words “Constituent Assembly “in proviso to Article 370 (3) have been interpreted by the Constitution (Application to Jammu and Kashmir Order) 2019, to read legislative assembly and since the assembly is dissolved, so in terms of Article 356 (1)b read with Article 357(1) it means the Parliament of India gives even the proverbial rubber man a run for his money.
Before it’s accession to the Indian Union, Jammu & Kashmir was governed in terms of “The Jammu & Kashmir Constitution Act promulgated in 1939 until it adopted its own Constitution on 26th of January 1957, unlike the relationship between the rest of the princely States and the Indian Union. Moreover Para 7 of the Instrument of Accession signed by Maharaja Hari Singh on 26th October 1947 explicitly stated “nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.
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Though other princely states also signed similar covenants but given the prevailing state of hostilities with Pakistan the situation in J&K was fraught with complexity. That is why a special mechanism was adopted by the Constituent Assembly on 17 October 1949 in the form of Article 370 to cement the relationship between the Indian Union and Jammu & Kashmir to move it beyond the instrument of accession.
The sagacity of this action evidenced itself on 26 November 1949. Rajpramukhs of the princely states that had acceded to the Union of India signed and adopted the Constitution in its entirety, except the Maharaja of the State of Jammu and Kashmir. Now, in order to make Jammu & Kashmir’s integration with India permanent by a reference to the people as Lord Louis Mountbatten had promised while accepting the instrument of accession on 27 October 1947, a Constituent Assembly was elected in Jammu and Kashmir. It convened on 31 October 1951 and remained in session till 17 November 1956 and as earlier stated adopted a Constitution that came into force on 26 November 1957. It was Article 3 of the said Constitution that cemented the relationship of Jammu & Kashmir inalienably. It states that Jammu & Kashmir shall be an integral part of India and Article 4 defined the state, as it stood constituted on 15 August 1947.
While the government may have bifurcated the state into two parts, what happens to the Constitution for the undivided state of J&K? For no one can abrogate that Constitution of Jammu & Kashmir as it has no self-destruct provision in its 12 Parts and 147 Articles. It is concurrent to the Indian Constitution in terms of its Article 5 and therefore even Parliament of India cannot rescind it, for it has been framed by an elected constituent assembly much like the Indian Constitution itself. If one was to argue that with the bifurcation, the Constitution has become a dead letter, it can equally be argued then that the relationship between India and Jammu and Kashmir is now back to the terms of the Instrument of “Accession de-horse the Constitutional sophistry” of 2019.
The Political Grey: Going all the way back to 1947 there is a sizeable section of people in Kashmir who have rooted for autonomy, self-rule, independence, and merger with Pakistan. All these four strains are present in the body politic of Kashmir. They are intertwined and overlapped; therefore the slogan of Azadi means different things to different people. However, there are also the standard-bearers of the Indian Union in the Vale of Kashmir again stretching back to independence namely the National Conference (NC) and the Indian National Congress. Over a period of time, various other political outfits like the People’s Democratic Party (PDP) founded in 1999 also joined this endeavour that is fraught with grave personal risk and consequences both from indigenous terrorists, non-state actors sponsored by the ISI and organization’s like the Hurriyat Conference.
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After the last round of intense militant activity in the mid 1990s that saw killings of the leaders and cadres of these political parties, they have still persevered and between 1996 and 2019, over four assembly elections and seven parliamentary elections, they not only participated in the democratic franchise but by doing so reaffirmed their faith in the Indian democratic system. The current bifurcation has completely cut the legs out from the regional parties namely the NC & PDP. What was considered to be the political mainstream in Kashmir has effectively been turned into the fringe.
The Hurriyat and other separatists would mock them for trusting the Indian state and they would have no other means of political and even physical survival but to make common cause with the Hurriyat. With well-organized political machinery across Kashmir, it would not only have both a multiplier and domino-effect but also there may be nobody left to articulate the Indian point of view, to the people of J&K. The repercussions of this marginalization of the political mainstream would be grave in the years to come. It is ironical that three former Chief Ministers of Jammu & Kashmir Dr Farooq Abdullah, Omar Abdullah, and Mehbooba Mufti till recently an ally of the BJP and their families are in incarceration.
The Security Grey: It is a well-known security canon that if a militant/ separatist/ terrorist/ revolutionary/ insurgent/ terrorist movement has popular people’s support it is near impossible to contain it– much less neutralize it. The counterinsurgency manual authored by General David Petraeus in 2006 and applied in Iraq is premised upon the following key tenets that are simple, but radical. Focus on protecting civilians over killing the enemy assumes greater risk. Use minimum, not maximum force. Simply translated, it means winning the hearts and minds of the people. If you fail to drive a wedge between the populace and the insurgent – the insurrectionary would win.
In the long war against militancy in Punjab, the inflection point came when a popular government even on a thin electoral base was restored in 1992. Within three years, Punjab reaped the peace dividend and has not looked back. Similarly, negotiated Political settlements in Assam, Mizoram, Tripura, and Bodoland brought peace to those regions. Currently, the government is negotiating to end the decades-old insurgency with the underground Naga. It is sheer obtuseness to remove the political buffer between Delhi and Srinagar and administer Kashmir from New Delhi.
Whenever there has been a direct confrontation between Delhi and an alienated part of India it is the former that has lost because every grievance from a blocked municipal drain to overzealous frisking at a security checkpoint coalesces the people’s anger onto Delhi. That’s why in Kashmir “Azadi” means so many different things to different people. In the present instance, not only has the buffer been removed but also the entire political mainstream has been obliterated with the sword of bifurcation. There would be serious implications down the line.
The Strategic Grey: Pakistan is back in the game not only in Kashmir but also in the region. After being the pariah of the Beltway post-Osama bin Laden era, it has risen like the proverbial phoenix to become the sweetie pie of Washington DC once again. The US needs Pakistan ever more. If the US “surrenders” to the Taliban, then the Taliban would succeed. Moreover, with the Iranian issue back on the front burner, Pakistan will have a role to play in the US scheme of things. Whatever militant capacity the US- Taliban deal would free up, it will all come to Kashmir. The Taliban fighters perceive conflict/Jihad/ Martyrdom as the normal. They are not going back to a pastoral existence. A child born in Afghanistan in 1979 when the Soviet Invasion took place today would be forty years old. For him, death, destruction, cruelty, and conflict is a way of life and then there is always the ISIS to fill the vacuum if the demobilized Afghan fighters are unwilling to become guns for the Pakistani deep state. Rather than carry out this obtuseness the government needed to apply the healing touch to bring the people closer rather than alienating them.
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The International Grey: India’s whole case for the return of POK and the northern territories rests on the Article of Accession, an Article of the Jammu and Kashmir Constitution and two resolutions of Parliament in 1994 and 2012 which states that the only unfinished business of Partition are those parts of J&K which are illegally occupied by Pakistan and ceded to China. While the Instrument of Accession does not delineate the boundaries of Jammu & Kashmir it is Article 4 of the J&K Constitution that defines them. “The territory of the State shall comprise all the territories which on 15 August 1947 were under the sovereignty or suzerainty of the Ruler of the State”. Now with the dismemberment of the original state of J&K, that particular claim becomes a non-sequitur. For in both bilateral and multilateral negotiations India would not be able to say that we are wanting control over the original state of J&K as acceded to India on the 27 October 1947 by Maharaja Hari Singh as that state no longer exists. This unraveling of J&K has weakened our case in the chanceries and conference rooms of the world.
That is why I told the Home Minister in the Lok Sabha on 6 August 2019, that Jammu & Kashmir is not black and white – there are “Fifty Shades of Grey” in between.
The author is a lawyer, Congress’ Lok Sabha MP from Anandpur Sahib, former Union minister of information and broadcasting, and distinguished senior fellow Atlantic Council – Washington DC. His Twitter handle is @manishtewari.
This article was first published on ORF.
I’m not a great admirer of Manish Tewari, but for once he’s managed to put forwards a very clear and lucid picture of the reality in Kashmir. The RSS/BJP Bhakts will no doubt be abusive, but that doesn’t mean there’s not need for articles like this one … which confront the blood thirsty Nationalism of a nation gone mad with the implications of such actions
Please correct put forwards to put forward.
What happened to your Article 3, when both you IDIOTS( Congress & BJP) broke up ANDHRA PRADESH. Did you guys get a resolution from the ASSEMBLY.
AND Manish, just because Kashmir status has been changed, that does alter the territory ceded to INDIA by Maharaj Hari Singh.
We will one day take it “WHOLE”…. more important than this imminent eventuality, AZADI TO BALUCHISTAN SHOULD BE INDIA’s priority, along absolute PEACE IN AFGHANISTAN.
Enough is enough! Kashmir needs to be independent. It ‘does not belong’ to any country. The world needs to wake up and grant it autonomy and independence. Otherwise it could well end up like Yugoslavia.
Manish Tiwari is a prime example of a Gandhi Toe Nail Sucker. The poor chap has no base in any constituency and is 50 shades on Toadism is why he is what he is in Congress. He has probably read only a couple of books in his life and now goes about using the title of one them. Ofcourse there are many like him because the Gandhi Toe Nail, I believe requires regular cleaning.
We have been talking to Pakistan and also with the Kashimiris for the last 70 years. What has been achieved? Absolutely nothing!!!! Now we have a government with a strong prime minister who has finally had the sense and the courage of taking the right decision. And I am sure this will play out very well
Meanwhile Manishi, the left toe of the left leg needs cleaning. Get on with it
The means used for abrogation and splitting the State could be questionable or doubtful as Manish Tewari points out, but it is now upto the SC to finally decide. The methods used by NDA would be justified only if the end result is a detailed dialog with Pak on resolving the issue , with whatever acceptable concessions from either side. If the issue gets resolved, then all the legislative gymnastics and clampdown on Kashmiris would have been worthwhile and Modi can be classed as a greater PM than even Indira Gandhi, in terms of the depth of change brought about. If matters dissolve into a verbal and military slugfest with internal strife, then surely the PM’s actions will be open to question, no matter what the legal position.
@sudarshan nityanda
“detailed dialog with Pak on resolving the issue”
“Whatever concessions from either side”
You are either a Paki with a fake name or a Paki agent like RaGa and P Chidambaram. (Where is the thief hiding? Pakistan?)
Your case dismissed.
There will be no dialogue, India has already made lot of consessions to Pakistan project/ TNT.
The J&K has 3 parts. Jammu, Kashmir and Ladakh. People of this state, other than muslims are happy about what has happened. Emotions of Kashmiris are whipped by local politicians and separatists and until they are brought under control, things will not be easy to operate. People from Congress party’s only goal is to criticize Modi govt and appease minorities. Most of foreign media and select Indian media are happy to support Pakistani line of thinking. Unfortunately enemy for India is within.
Congress should apologise for ceding part of Kashmir to Pakistan and ruining Indian Kashmir lock, stock & barrel. Congress should be disbanded and their leaders barred for life from politics.
If the COngress leaders in Oct 1947 had delayed even 48 hrs in sending troops, Srinagar would have been lost to Pak, probably forever. Nehru and Patel’s quick decisions , ensured that ultimately 70% of J&K came under India , with a legal Accession.
Regarding POK, even the Army at the time said they needed to restock and regroup thru the winter 1947 and spring 48 before attempting a capture. Having fought for over a year , our leaders decided not to prolong the conflict further , since both armies were at a stalemate in winter 1947 , with almost equal strengths.
Nehru and Patel must be complimented for not shedding more of our soldiers’ blood for an acquisition of doubtful value, given the hostility of the tribes of Gilgit Baltistan to the Indian State. We would have been more of a colonizing force in that case.
Hey author,
Don’t fool us. The recommendation sought from any state legislature, before changing it’s boundaries, are NOT BINDING on the parliament.
Did your party respect the “will of the people” while bifurcating Andhra?? The state assembly had then said a clear ‘no’ .
So spare us your lecture. Your party has lost its way, and party-men have lost their minds.
He blurted out something in haste. Now the serious cover up attempts only appear to be a halfhearted whitewash.
Every time we read Congress people it reiterates tht they spk Pakistani language…all the 50 shades of grey Tearing is talking abt come frm his political handlers across the boundary (read as PAID by handlers across the boundary).
Why does these Congressi fail to accept their grave historical blunders? Again paid for this insomnia?
Foolish to compare Kashmir with any other part of India. But what else to expect from a clueless Congi. You have no new ideas, the same old stupid failed policies.
Burhan Wani clarified to the Indian government and the global big powers what needs to be done. Nobody wants another Terroristan in a dangerous neighborhood. JK had plenty of autonomy and more. Hurriyat made it abundantly clear what they want.
One would wish for clear blue skies and dazzling sunshine, as promised when these bold decisions were announced. 2. A sobering report in Huffington Post about the enclave of Soura in Srinagar, with 15,000 resentful people. Whether it represents an aberration or the General mood will become more clear as restrictions are gradually lifted.