Thursday, 19 May, 2022
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Legally, BJP govt can revoke Article 35A but Ambedkar would have asked if this was prudent

BJP government must show a willingness to discard the tunnel vision of its project to make Kashmir fully Akhand with Bharat.

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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.

Also read: With special status hollowed out, J&K considers Article 35A last vestige of real autonomy

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.

Also read: BJP’s master strategist Amit Shah set to tackle Kashmir, Naxalism & NRC at home ministry

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 wiseprudent 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.

Also read: With 35A debate, is Kashmir more about domestic politics & less about strategic interests?

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:, ConQuest Quiz, and the National Constitution Society. Views are personal.

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  1. Irrespective of whether what has been attributed to various leaders was ever said by them or not, one thing that comes out clearly to an average mind is the fact that plebiscite was advised and applicable for Kashmir when it’s geographic area was undevided, i.e. it was devoid of POK and it’s population composition was as it was at the time of independence.

    It all lost its applicability and relevance once both these crucial attributes were forcibly attacked and altered by foreign aggression and foreign aided terrorism, during wars and post eighties respectively, irreversibly.

    Hence to my mind, Kashmir ( Without Jammu and Laddakh regions as there was & is no ambiguity about their being an integral part of India, willingly by choice of the people) problem as is being presented in this article can not be evaluated on the basis of historical opinions (even if these were authentic) as they have lost their relevance in the present context as explained above.

    We all now need to follow a line of constructive line of thinking and action based on the present configuration of population, after comprehensively evaluating situations created in the valley by inaction of successive local governments, lack of growth and development all these intervening decades caused by choked industry and revenue pipelines and visible helplessness shown by locals in fighting the terrorism as the past is altered to an irreversible extent and is not applicable now.

    And last but not the least, we need to sincerely define the parameters and dimensions of “How long and what period can be defined as ‘Temporary’ in a nation’s present history and would anyone like emulate such a situation in his or her personal life i.e. would you like to medically treat yourself today according to a diagnosis made, based on report of a pathological test conducted in your childhood ?

    I know the answer is a big NO. We will have to deal with the problem and it’s solution in its contemporary form judiciously, honestly and sincerely.

  2. Whether Modi will win or not in 2024 due to existing economic policies and other reforms, can be elaborated & discussed later on. But as of now the Nation is on safe hands & marching in a right direction. So far as Article 370 & 35A are concerned, both will be erased from our constitution sooner or later.

  3. Administration and political will never cares for logic and whether a decision is just or not.We are much delayed in scraping ,370and 45 ,A.Only Modi can cut and treat cancer rotton limbs of 370 and45,A.He should do it sooner is better.Ashok

  4. These provisions were at best temporary with assumption that there will be willing integration. But what democracies have found and as shown by tripple talaq that with time things do not lead to integration with Muslims but to radicalisation.

  5. There is no point shouting from the rooftops that Kashmir is an integral part of the country if laws are different for Kashmiris and Indians from other states. Abolish it and we will see what happens. Most Kashmiris anyways do not see themselves as a part of this country. They may pelt an extra few stones. Why do our soldiers need to die there if we do not have claim to that land?

  6. Yes both 370& 35A should be abolished in one go as it’s in national interest . Indian people are with govt so govt should take this tough decision with boldness.

    • Kashmir was, is never an integral part on India. Maharaja Hari Singh acceded to India because of Pakistani aggression in October 1947. Had Pakistan not committed the blunder, Kashmir would have remained independent or became a part of Pakistan according to Radcliffe mandate. So, forcible integration which amounts to ‘rape’ will be more suicidal and detrimental to the interests of Kashmiris. In a no win situation, India does not stand to win.

  7. Government should apply wait and watch policy. Should solve Kashmir issue without abrogating Article 35A/Article370. Constitutional experts can advise it without abrogating Article35A/Article370.

  8. The author is very partial and tossing a biased coin. It’s a driven truth that Kashmir is being infiltrated again and again by terrorists groups. Idiots like you know exactly that it is very hard to provide education, housing, security , employment and other basic necessities to the people and that is why you keep them engaging in this stupid communal and land war. Its is done for the betterment of people of Kashmir and its future generations.

  9. This is cheap talk sir. U have conveniently twisted and misused Mr. Ambedkar’s quote. Quite obviously you are asking the PM to not use his strong hold in parliament for bringing down article 35A, but what Mr. Modi have today is mandated by us Indians, and if he deals with 35A its by virtue of that mandate. The case would have been similar if the house was some how compromised which ain’t the case. Also, coming to kashmiri’s opinion on the matter, than where is there opinion? A mob posing for media cannot be considered as reflection of kashmiri’s opinion. And as in every relationship if one person always keeps asking for their personal space and time, rest of the family gets affected. As mentioned in earlier comment, things have been hanging for too long, so better deal with it when a possibility has come.

  10. The logic of people’s choice is only being offered as a justification for the special status granted to J&K because were it to be located in the Indian heartland rather than on what has turned out to be Pakistan border then I doubt even Nehru would have had the audacity to do what he did here. Also if people’s choice is a parameter then surely there would be at least enough reason why the special status and these Articles need to apply to Jammu and Leh. Which leaves us with Kashmir, which has been partly and illegally occupied by Pakistan. The UN mandated plebiscite required Pakistan to vacate that occupied part as a precondition. Since that is unlikely to happen I think at the worst we are left with a de facto border of Kashmir at the LOC and therefore the special status provision need no longer need to be made available. One could say regardless of a formal agreement the Kashmir status has been resolved by default. Ambedkar’s words quoted here likely were taken out of context. There is no way of knowing how 70 years later he would opine! It is outrageous that a small population and part of India should hold the rest of the country to ransom! The Pandits of Kashmir have already been cleansed from their homeland and I don’t see any of these advocates of democratic franchise for Kashmiris bothered about that! It is never going to “right time” to remove these two Articles. The present Government has an unusually unique mandate to take these steps which were in their Manifesto as well. They should get on with it!

  11. Scrap 35A & 370 as soon as possible and without giving any excuse. People have voted Modiji since he promised the same in LS manifesto. please donot pull like temple. By the way congrats for Triple talaq action.Same promptness expected to remove 35A & 370.If require take action like Tianmen square.

  12. The article is good …. But PM Modi rather than concentrating on these reforms is still banging on EVMs to win the next election . We need ballot boxes back ….

  13. What Shri G A Ayyangar said on the floor of the Constituent Assembly – GoI had committed to the people of Kashmir that they would be given a choice, whether to stay in the Republic or go out – would get a person locked up for sedition if those words were to be uttered now.

  14. It was all because of Nehru’s urgency to score point with Sardar Patel, went to All India Radio and announced plebiscite in Kashmir, which was unwarranted. The Kashmir story revolves around Raja Hari Singh, Sheik Abdulla and Nehru. Hari Singh appointed Sheik Abdulla as Prime Minister of the state to play tricks against Indian govt under Nehru against annexing Kashmir. Later Sheik Abdulla went against Hari Singh and colluded with Nehru demanding special status and Nehru with his hurriedness took instant decision to grant special power only to side line Hari Singh. Later, when Sheik Abdulla was becoming stronger within the state, Nehru played his dirty party against Abdulla trying to remove him. In process the ordinance was passed by President, by terming it as temporary. The politics played by these people and later Pakistan’s involvement in taking over part of the state, ended up in a mess. No successive govts had the will to solve the issue and problem persisted. Post 80s came the support of Pakistan creating disturbance and local leaders in Kashmir playing into it. Finally, what we have today is that people of the state are the suffers, politicians have filled enough for their own, making the state to suffer. Worst of all, the students of the valley are encouraged to protest by funding them and many students lost their precocious time and started joining militancy supported by Pakistan. The sons and daughters of these separatist politicians, migrated to UK, Australia and Gulf for higher studies. Dirty game of politics everywhere and it is right time to settle the matter once and for all, if it involves removing the corrupt politicians and separatists and sending them to jail.

  15. This is just coward-speak. Get rid of 35A and 370 in one shot. We will deal with what happens when it happens.

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