India’s Kashmir and Kashmir’s 370

India, as a democracy, has just crossed one more milestone in its 73 years of independence when on 5th August, 2019 the Indian Government repealed Article 370 and 35A which gave special status to the erstwhile state of Jammu and Kashmir.

Before I begin talking more about 370, I want to share with the readers and remind myself – my memories of Kashmir. My only visit to Kashmir was in 2010 when I had gone there as a tourist with my family. I always wanted to visit Kashmir as a kid, more after seeing Hritik’s Mission Kashmir (and the Bumro Bumro song), but my mom would tell me going there wasn’t safe because of terrorism. Somewhere in the summer of 2010, when situations were a little normal in Kashmir and my parents were confident enough, we made a trip there and the place was no less than what it is aptly called – “Heaven on Earth”. I am not exactly an expert in writing travelogues nor is my language good enough to describe Kashmir.

However, I absolutely fell in love with the clean-hearted and magnanimous people of Kashmir. I grew extremely close to our driver Firdaus in a week’s time, so much that I hugged him and shed a tear when he dropped us at the Srinagar airport after a week of traveling together. I remember, one night during our stay at Dal Lake, it was around 9-9.30 in the night when we had gone to the other side of the lake for dinner. We were late and our boat which was supposed to ferry us back to our house boat (named Aziz Palace) had left us and we were stranded late in the night at the other end. We met a 50-something Kashmiri uncle who was extremely kind and comforted us and arranged a Shikara for us to ferry us to the house boat. While we kept on thanking him again and again for helping us out, he kept on repeating, “You are our brothers. It’s our duty to help you.” Numerous such gestures by the amazing Kashmiris made me fall in love with them all the more.

Article 370 has intrigued me for years now. My stronger memories of Article 370 are of my MBA entrance exams preparation days when we would extensively read and research about this subject. On reading quite a lot and regularly about this, I became so passionate about the subject that I had mentioned it as one of my key interests in MICA’s admission form.

History of Article 370 and its contents

It is a known fact that Jammu & Kashmir was NOT A PART OF INDIA when it gained independence on 15th August, 1947. Maharaja Hari Singh – the king of Kingdom of J&K wanted it to remain an independent state and not join India or Pakistan. However, this was not possible given the geographical location of Kashmir and the strategic importance associated to the position. Soon after August 1947, Pashtoon decoits backed by Pakistan Army started raiding Kashmir, wrecking havoc on the people and property there. Maharaja’s army could not face the attack alone and asked India for help.

Indian government informed Maharaja that it will be able to help J&K only if it were to become a part of Republic of India. To save his kingdom and people, Maharaja had to agree to merge J&K with India. But given the urgency and situations in which the merger/accession was undertaken, there came certain “TEMPORARY CONDITIONS” with the accession which are mentioned in what was known as ARTICLE 370 of the Indian Constitution.

As per erstwhile Article 370 of the Indian Constitution:

• The heading of the article mentions that it is a “temporary provision” and it is to be removed on a later date (no timeline for its removal was mentioned)
• Under this temporary provision, the Indian Central Government had the right to enforce laws in J&K only in the matters of Foreign Affairs, Defence and Telecommunications. All other matters would require an approval (read: concurrence) of the state government of Jammu & Kashmir. Because of this provision, J&K had a separate constitution of its own, J&K had a position called “Prime Minister/Wazir-E-Azam of J&K” until 1954. Because of this very clause, J&K had a separate flag. No person who was not a permanent resident of J&K can buy property in J&K.
• The President of India can issue a notification declaring to quash Article 370 upon the recommendation of Constituent Assembly of J&K

Why was Article 370 needed? Why was it created the way it was?

As citizens of India 7 decades later, the above mentioned terms and conditions of Article 370 might appear quite demanding and almost aloof from the idea of India, however people almost miss the reason and history of its creation – the circumstances of accession of J&K to India.

J&K acceded to India almost OVERNIGHT – meaning – Maharaja had little time to go through the Indian constitution and the impact on his people and his state of being a part of India. To ensure that no injustice is done to his people and culture of J&K, Maharaja had a temporary provision called Article 370 of Indian Constitution inserted to ensure that no wrong conditions were imposed on his people due to the hurry and pressure of accession.

Once the accession was peacefully over the emergency of attack from Pakistan was dealt with, an Assembly with representatives from J&K and India would sit together and take into account concerns of J&K and abrogate 370. It is this Constituent Assembly (of which Sheikh Abdullah, Sardar Patel, VP Menon, etc. were a part of) that the article 370 talks about and does not mean the LEGISLATIVE ASSEMBLY OF THE STATE. This Constituent Assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370.

It is a romantic nuisance to hear the Kashmiri dynasts call Article 370 the “CONDITION” on which J&K acceded to India. Article 370 was the post-effect of J&K accession to India to decide its status and functioning within Republic of India. J&K as a matter of fact was in no condition of strength to put terms and conditions for inclusion in India while it was under scathing attack from Pakistani goons.

It is another romantic nuisance to hear liberals and intellectuals call Article 370 – a tool for preservation of Kashmiri identity and culture. While Kashmir has its own unique identity and culture, so does each and every state of India. Being the most diverse and culturally rich part of the planet where language, mannerism and everything about culture changes every 50 kilometers, it is almost childish to allow one state out of twenty nine others to have its own law/constitution creating disparity in a Democratic Republic of 29 states formed by a union and merger of 562 princely states. The Indian Constitution has enough provisions to protect and enrich the unique culture and tradition of every ethnicity, caste and creed that reside in India.

By now, I have made my stand clear that Article 370 was extremely discriminatory (I have intentionally skipped the subject of – Women not given land inheritance rights – to irritate the pseudo feminists). However, the article served very well for the dynasts of J&K – Muftis and Abdullahs. Because of restrictions of Article 370, these two families could ensure that there would never ever be a new political front/alternative in the state and whosoever formed the State Government in J&K would almost have ruling rights of a Monarchy. If a law is serving you/your-family and assuring succession of your seven generations, why on earth would you want to remove it?

Was the way in which Article 370 removed, unconstitutional?

I am no constitutional expert and based on my research and reading on the subject can only present my opinion on it. The way Article 370 was removed was extremely interesting and will be continued to be debated for years to come as there is no right answer to this one.

The fact that Constituent Assembly of J&K dissolved itself in 1957 without amending or abrogating 370 created a DEADLOCK in any modification of Article 370. However, the provision says that the President of India can declare the article to be void or ceasing to exist on recommendation of Constituent Assembly of J&K. In absence of the Constituent Assembly, it is fair to assume (and also debate) that the President of India has the sole power to declare the Article to be void. The assumption is very necessary for the continuity and maintenance of administration of J&K, else no changes required for the administration of state requiring amendment or modification of 370 can be made.

This is exactly what happened on 5th August, 2019 when President Ramnath Kovind issued an order declaring Article 370 to be NULL AND VOID.

The STATE LEGISLATIVE ASSEMBLY (the State Government of J&K) was never given the power by Article 370 to recommend or make changes to its status. Hence, the regional/state parties of J&K like NC and PDP who are crying foul of the President issuing an order while there was no government in the state (Governor Rule) is absolutely devoid of facts and knowledge of 370.

Art of removing 370 – the Amit Shah way

A lot of intellectuals and liberals have sobbed at the brutal, heartless and undemocratic way in which Amit Shah ensured a peaceful and non-stone-showery abrogation of 370. I feel sad that they felt sad about how a few of their Kashmiri brothers and sisters along with their Huriyat friends didn’t get a chance to express themselves by throwing stones and creating unrest in the valley this time around. 

I understand what curfew and restrictions mean. I was born in 1990s in Gujarat when there would be Hindu-Muslim riots in the state almost every other year and almost every summer vacation would be in curfew until 2002. This August in Kashmir – it was about celebrating one Bakri Eid a little less, it would about one less stone throwing incident, one less opportunity to chant “Azaadi“, a few less days to message, call and WhatsApp each other. But of course, Bakri Eid 2019 was so important for Kashmiris and more for some Red Display Picture Keeping Non-Kashmiris that out of sheer love and concern for their Kashmiri brothers and sisters they invited them to their place to celebrate Eid. I wonder if the same Red Display Picture keeping Non-Kashmiris ever invited the kith and kin of BSF or Army soldiers to celebrate Diwali or Eid with them, ever? While the Kashmiris didn’t get to celebrate one Eid, the families of security personnel don’t get to celebrate every Eid and every Diwali! However, the Red Display Picture keeping liberal India will not do that, it’s not cool!

While I agree, this is quite a strict way of getting things done, but with the history of the state, with all the failed efforts of dialogue with stakeholders in the past and with Pakistan in the neighbourhood, the RED DISPLAY PICTURE GANG should tell me if there was ever a romantic way out?

P.S. There are several other points around 370 which I haven’t discussed in this post. Some other day…