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.
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.
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.
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.