Jammu and Kashmir is on the edge – again. This time, over a possible repeal of Article 35A by the BJP government. Most public debate around Articles 35A and 370 focuses on legal and constitutional justifications that support or oppose them. This is expected and necessary, but we may benefit from other non-legalistic perspectives as well.
Not ‘ripe’ for full integration
On 17 October 1949, at the tail end of the Indian Constitution-making project, N. Gopalaswami Ayyangar introduced draft Article 306A (later renumbered as Article 370) in the Constituent Assembly. The draft Article gave Kashmir a special status in India’s federal set-up. Ayyangar was taking the Assembly through the Article’s text when Maulana Hasrat Mohani, founder of the Communist Party of India, interrupted him and pointedly asked: ‘Why this discrimination please?’
Ayyangar explained that this was ‘due to special conditions of Kashmir’. Unlike other states, Kashmir was not ‘ripe’ for full integration with the soon-to-be Republic. He referred to the war in Kashmir and the fact that the United Nations was now involved in the issue.
Ayyangar then went on to state the Government of India’s position on the future of Kashmir: Again, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it.
At the end of this debate, except for Mohani, no member of the Assembly opposed Ayyangar and, in the end, the Assembly adopted Draft Article 306A.
Why we have Articles 35A & 370
From the debates, we can garner two critical strands of the Assembly’s approach towards Kashmir: first, the unusual conditions of Kashmir do not facilitate full integration with India and second, it was up to the Kashmiris to decide the future relationship between India and their state.
The people’s choice played a key role in Sardar Patel’s admittedly tremendous achievement of shepherding all the princely states into the Union. This exercise would have been impossible if most of these states did not have a critical mass of people wanting to join the new republic.
It is precisely because such a critical mass did not exist in Kashmir that we have Articles 35A and 370 in the first place – an arrangement that symbolised Kashmir’s willingness to join the Union but under certain conditions. This pact (in a sense) is what our self-fashioning modern-day Sardar Patels want to undermine.
Remember Ambedkar’s words
It may be legally possible for the BJP with its massive mandate under Prime Minister Narendra Modi and Amit Shah’s leadership to push through changes in Kashmir’s special status. A Constituent Assembly debate on what is legal versus what is wise is worth quoting.
On 13 December 1946, the Constituent Assembly took up the Objectives Resolution for discussion. There were two important groups missing in the Assembly. A debate ensued on whether to move the amendments or stall Constitution-making in their absence.
B.R. Ambedkar warned the Assembly in words that can counsel any government that may consider launching a step like abrogation of 35A.
It may be that you have the right to do so. The question I am asking is this. Is it prudent for you to do so? Is it wise for you to do so? Power is one thing; wisdom is quite a different thing and I want this House to consider this matter from the point of view, not of what authority is vested in this Constituent Assembly, I want this House to consider the matter from another point of view, namely, whether it would be wise, whether it would be statesmanlike, whether it would be prudent to do so at this stage.
Would the repeal of Articles 35A and/or 370 without the consent of the Kashmiri people be wise, prudent or statesmanlike?
It is unlikely that the BJP government engages in such exercises of self-reflection and forethought; this requires a willingness to discard the tunnel vision of its project to make Kashmir fully Akhand with Bharat, and instead adopt a more panoramic view.
Whether those thousands of troops were flown to Jammu and Kashmir to deal with the potential fallout of removing of Article 35A or otherwise, the BJP government should keep in mind Ambedkar’s words. It must acknowledge that the people of Kashmir are telling us loud and clear that they do not want the existing constitutional relationship between the Union and state to change, for now.
It would do well to allow the Kashmiris to have a stake in this debate, like the Constituent Assembly did 70 years ago.
The author is the senior associate editor for Constitutional and Civic Citizenship at the Centre for Law and Policy Research, Bengaluru where he works on initiatives to facilitate and sustain a popular constitutional culture in India that includes: constitutionofindia.net, ConQuest Quiz, and the National Constitution Society. Views are personal.