Article 370: From bridge to barrier

Article 370 was an extremely contentious and an intensely contended symbol of many conflicting realities. Every hue of the political spectrum – from secessionists to integrationists via autonomists — interpreted it within their own framework.

For the right wing conservative parties, Bharatiya Janata Party (BJP) and its associates, Kashmir having a special status was a negation of their ideology of nation, nation- state and nationalism; how could the Union share sovereignty with a satrap? Of course, J&K being Muslim majority state, made it not just ideologically blasphemous, but politically unacceptable.

Indeed, within days of the special constitutional arrangement being put in place, the Jan Sangh, which later became the Bharatiya Janata Party (BJP),  started the “Ek Vidhan, Ek Pradhan, Ek Nishaan” agitation in Jammu where it had a strong presence. If any city can claim to be a forerunner of Nagpur, it is Jammu!

For the autonomists, principally the National Conference, Article 370 was their raison d’etre.  They signed it in 1952, paid for it in 1953, bartered it in 1975, and discarded it in 1986. Only to resurrect it in 2000 after the emergence of the J&K PDP.

Post 1989, when secessionist politics took root in Kashmir Valley, the instrument of accession was seen by them as the instrument of surrender. Article 370, which was the “mainstay of protection” became the “mechanism of occupation”. Not that everyone in this camp held a similar view. Many senior separatist leaders, for instance, have often warned the Government of India not to tamper with “Dafaa 370”. This was partly because of confused politics but also because by then it had become an emotive issue for the Kashmiris.

For the left-liberal-secular sect, Article 370 was not a conscience clause, it was a comfort factor. Having a Muslim majority state within its fold was poster material and a badge of honour – to be conveniently worn on the national sleeve for image building and wider appreciation globally.  Indeed, it came in handy during elections too.

Even though the Congress Party accepted Article 370 in a certain context and in a given situation, it lacked conviction and hence commitment. No wonder then they start eroding it from the day one, literally. Way back in 1963, Nehru told the Parliament that Article 370 “has been eroded, the process of gradual erosion is going on, we should allow it to go on”. By 1986, it was all over bar the text.

The BJP attributed the separatist sentiment and ideology as having been nurtured by Article 370. The BJP made it a national issue and in every election, promised to abrogate Article 370. Over the last 50 years, they build a narrative that Article 370 was a barrier that prevented everything; be it nationalism or democracy or development from crossing the Lakhanpur check post at the J&K border.

This narrative was carefully constructed in opposition to what Congress had defined as a bridge, a “tunnel through which a good deal of traffic has already passed and more will” as Home Minister Gulzari Lal Nanda, said in 1964.

Significantly, the end game for both parties was the same; only modalities differed.  The two parties without colluding, complemented each other in obliterating Article 370.  The Congress had killed it, the BJP performed the last rites. There is one difference, of course, in addition to stark difference in style: Article 370 as it stood on 4th August 2019 was the biggest fraud perpetuated by the Congress party on the people of Kashmir. Equally, the abrogation of Article 370 on 5th August 2019 is the biggest chicanery by the BJP with the people of India.

As Home Minister Nanda candidly told the Parliament in 1964, “Article 370, whether you keep it or not, has been completely emptied of its contents, nothing has been left in it”. He was being honest.  It was a benign as Article. Even after abrogation, it continues in the statute book; now comatose.

Writing in response to a BJP functionary’s threat of abrogation in 2014, I compared Article 370 to a husk from which the seed has been taken out long ago (Outlook, 9th June, 2014). And again, in 2015, I asked, “What is there left to abrogate? (Greater Kashmir, March 14th, 2015)

True, the manner in which it was done is completely unconstitutional. But hasn’t that been the norm rather than the exception vis-a-vis J&K? In 1952 itself, President Rajendra Prasad, had to warn Nehru that “Parliament could never have intended that such an extraordinary power of amending the Constitution by executive order was to be enjoyed without any limitation as to the number of times on which it could be exercised. Article 370 was not intended to be used from time to time as occasion required.”

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The immediate consequences of abrogation, as we look back a year, have been adverse for Kashmir internally and for the country, internationally. The Chinese incursions, for instance, are directly related to August 5th action. China did register its concern and protest with the United Nation on 9th August, 2019. For them Ladakh as a quasi-autonomous region, even if only in name, was acceptable. A federally administered unit is not.

Domestically, there have been gains which will help the BJP in the long run. But the long term consequences for India far outweigh the party gains. May be not as much as a democracy, but surely as a republic and as a federation.

Post the abrogation of Article 370, the Constitution of India has been reduced to a mere rule book.  A key element, besides constitutional propriety which was violated with impunity, is the premise that underlying the Constitution is a social contract; with people as well as with states as units of a Constitutional Republic. Now that it has been breached in one corner of the country, it will be breached elsewhere; sooner than later.

If indeed, Article 370 had no content of value for Kashmir, why did it matter to Kashmiris? Why was it important? Dafaa 370 had a huge emotional equity among the masses; peasants to politicians. Besides being an emblematic emotional support for the Kashmiris’ psyche, it was an article of faith for him/her. Hence the deep sense of betrayal on its abrogation which came across as a loss of trust, faith, and power and protection.

Over the last 70 years, “dafaa trae hath te satath” gained much meat and many meanings, acquired many shapes and shadows and imbibed powers and properties too.  Indeed, it had become so much larger than life that Sheikh Abdullah had to once emphasis in the legislative assembly that “370 is not a Qur’anic verse that can’t be modified”.

Whatever the social and political impact it has had or it might have in future, the fact is that every single Kashmiri in Kashmir felt a personal loss on the abrogation of Article 370.

Speaking for myself, even after knowing the hollowness of its power and content, there is a feeling of helplessness, quite evocatively expressed by the iconic poet Parveen Shakir,

pā-ba-gil sab haiñ rihā.ī kī kare tadbīr kaun

dast-basta shahr meñ khole mirī zanjīr kaun

All powerless, who will plan for my release,

In a handcuffed city, who can unshackle me

Today, a year later, I hear her in the Valley say:

kuchh faisla to ho ki kidhar jaanā chāhiye

paanī ko ab to sar se guzar jaanā chāhiye

Let it be decided where we have to go,

You can’t keep the head above the water now

har baar eediyoñ pe girā hai mirā lahū

maqtal meñ ab ba-tarz-e-digar jaanā chāhiye

Every time my blood has coloured the heels,

Must go to battle field with a different strategy

Tail piece:

For the executive, legislatively speaking, Article 370 is history. It is, of course, sub-judice, so strictly speaking, judicially it is alive. Given the Judiciary’s state of mind, a more appropriate word to describe the status of Article 370 is: clinically dead.

A year after Article 370 was abrogated, there is lack of clarity on it. Was it abrogated? If it was, then why is it still on the statute books? Will be taken out at a later date? Or was it rescinded? Or  read down?

While it is sub-judice – Supreme Court is to hear the petitions questioning the validity of abolishing the special status of J&K — is it morally and ethically proper to take sequential actions emanating from the Act which has been contested in the Supreme Court.

If, and this is a purely hypothetical question, were the Supreme Court to decide that removing Article 370 was indeed Constitutionally incorrect, will the Government of India roll back the August 5th, 2019 actions?