Prof Pratap Bhanu Mehta’s piece on “The nuances of Art 35 A” in Indian Express (August 9, 2018) is thought-provoking and ready reference for students who research contemporary state politics. Prof Mehta is the Vice chancellor of prestigious Ashoka University. It is a little noticed trend in Indian higher education system that private universities offer academic and intellectual freedom to their faculty and students compared to public sector universities. The latter are experiencing intellectual drought and academic meltdown with serious consequences for democracy and minority rights. Earlier in 2017 Dr Pallavi Raghavan of Global Jindal University and Dr Ali Usman of Lahore University of Management Sciences (both private universities) decided to create common academic course in “Shared South Asian History”. Another high-end private university – Krea will come up in Andhra Pradesh with former RBI governor Dr Raghuram Rajan as its advisor. Dr Rajan is thinking of porous boundaries between the campus and the real world and making the Krea – an ideologically agnostic university. Be that as it may, some top-notch academics mostly working in private universities have over the years engaged with Kashmir related problems with empathy. Academics have their unique style of developing a narrative and the difference between an activist and an academic is that former is in the middle of a conflict the latter is in the middle of world of ideas. Some of the insights from Prof Pratap Bhanu Mehta’s write-up are taken up for extended analysis in the following order:
First, Prof Mehta argues that “Art 37o is the only mechanism that allows the Indian union legally exercise power in Kashmir. Abrogating it is repudiating the legal edifice on which India’s claims rest. All that then remains is force and domination… abrogating Art 35 is playing with fire”. The special constitutional arrangement for Kashmir emanated out of both hope and fear. Sheikh Mohammad Abdullah thus weighed that fear and hope when in 1950,s he said :”Certain tendencies have been asserting themselves in India which may in future convert it into a religious state wherein the interests of Muslims will be jeopardized .From my experiences of the last four years ,it is my considered judgment that presence of Kashmir in the union of India has been a major stabilizing factor in Hindu and Muslim relations.”Having seen the link between Kashmir and inter-community relations Abdullah later wondered “if Hindu nationalists triumph in the struggle for power in Delhi ,he asked would Kashmir be secure in India”. Abdullah’s grandson is now confronting this question in an altogether difficult and different set of circumstances. Recently Mr Omar Abdullah opined that “tampering with Art 35 would amount to playing with fire”. Earlier Mrs. Mehbooba Mufti warned that if any abrogation happens “there will be no body left in Kashmir to hoist the national flag”. The fact is that despite the guarantees under the constitution, the approach adopted by Indian state towards autonomy project in Jammu and Kashmir has resulted in loss of faith and trust in post-independence nation-building project in India. This is largely due to legal and constitutional illiteracy about federal systems adopted in post-colonial countries. There are federations in the world where the constituent units do not enjoy symmetry in power. Asymmetrical federal systems have proved their capacity and power to keep nation-states standing in the face of challenges from cultural/political groups clamoring for preservation of identity and autonomy rights. In case of Malaysia, Sabah and Sarawak are given preferential constitutional status under the constitution. Article 31 of the constitution of China allows the Chinese sovereignty to flow to Hong Kong. But at the same time Hong Kong retains autonomy by having its own constitution and independent executive administration. According to William Ricker “federalism is an outcome of a rational bargain among various constituents. Such a bargain may be for political or economic gains”. It was for geographic/ political compulsions that exceptionalism of Jammu &Kashmir state was carefully worked out in the dying days of British colonialism. The state of Jammu and Kashmir according to late justice A S Anand” enjoys greater autonomy and is not governed by the general power -sharing scheme of the constitution of India”. There is credible research alluding to the fact that asymmetrical constitutional schemes have been helpful in saving may nation -states from internal implosion and external vulnerabilities.
Second Prof Mehta has brought to the forefront the core issue of political process shaping Constitutional arrangements. The old adage that a legal truth may be a political untruth fits neatly into the argument advanced by India’s, top political scientist . Mr Mehta has brought to the public notice the import of Bachan Lal Kalgotra case wherein justice Chinnapa Reddy took the view that “essential laws governing Jammu &Kashmir are part of a political settlement” and it is essentially up to the political process to modify the terms of settlement, not to look to judges to short-circuit what should be a political negotiation”. The Sarkaria commission appointed to examine centre/state relations refrained from examining J&K related issues as they bristle with political complexities. At a difficult time in Kashmir and the larger region wisdom demands that Indian state must get its dialogue framework for political conversation in right order. Unfortunately, there is over dose of “Jumla politics” full of platitudes and clichés. It is prudent as claimed by former home minister of India P Chidambaram that India must assure the people of Kashmir that it is conscious of the spirit of the grand bargain at the time of accession of the state in 1947. There is need to shift from security to political template and in the bigger region of South Asia from domination to non-domination.
Third, Prof Mehta has brought in the question of dangers of communalized legal debates where the focus is on Kashmir and ignores the fact that the constitution of India does provide for legal pluralism. The Indian constitution has not treated all its constituent units and communities exactly alike for various reasons of ethnicity and history. There are special provisions viz, Art 370A, 370F, 370G, 370H meant for Nagaland, Mizoram and Arunachal Pradesh respectively. In case of Nagaland and Mizoram parliament cannot alter religious and social practices and also customary law and procedure. In our own state of Jammu and Kashmir special institutional mechanism of hill councils has been created in the Leh and Kargil sub-regions to empower people who had a perception of being discriminated in the power structure of the state. Similar voices are being raised in the Chenab valley and Pir Panchal areas of the state and the political class of Kashmir is not at all averse to such demands. Prof Mehta has aptly raised the issue as to why “we should worry about Assam’s demography being altered ,if we are willing to alter Kashmir demography as many BJP supporters claim? Prof Mehta is raising this issue in India when to quote George Orwell” in a time of universal deceit ,telling the truth is a revolutionary act”. Historian and public intellectual Rajmohan Gandhi some time back in a stimulating article asked Indians with conscience to “ask themselves if they will be proud -come 2047 of virtually a century of coercive rule over Kashmir”. True, that the voice and number of public intellectuals in India is diminishing but without their protestation democracy in India can get reduced to a farce. In 1990,s civil society in India proved a strong buffer between Kashmir and the Indian state. Eminent sociologist at Jindal Global university Shiv Visvanathan too has displayed admirable empathy for people of Jammu and Kashmir . In a recent write-up he stated ” Each protest is a potted history untouched and unconnected to previous histories. The politics of official narrative is lethal as it is enacted by media and policy experts. It is a politics of silence and forgetting. No one bothers about Kashmir between two protests. There is a vietnamisation of Kashmir that we do not talk about. There is use of excessive force that creates temporary normalcy”.
Fourth, Prof Mehta like many other political theorists digs into the issue of rights of minorities within the minorities. The gender issue is in for contestation as far as Art 35 A is concerned. The discussion on this issue has generated more heat than light. In post-modern times the debate on this issue can also become quite polarizing. But the same needs to be understood in its proper context. The political culture of the state of Jammu and Kashmir is historically women-friendly. Kashmir is an egalitarian society and leadership too has remained more future-looking rather than regressive. Remember 1944 Naya Kashmir document in comparative terms is miles ahead of Karachi resolution on Fundamental Rights by Indian National Congress. The issues connected to gender as raised in the petitions have been remedied by J&K High court. In 2002 a full bench of the High court in a case “state of Jammu and Kashmir vs Dr Sushila Sawhney” decided that daughter of a permanent resident of the state of Jammu and Kashmir will not lose status as a permanent resident of the state on marriage with a person who is not permanent resident of the state. Of course one judge struck a discordant note with the argument that the rights of the woman should be limited only to inheritance of property. The fact is that the daughter of S.A.S Qadri (former Kashmiri civil servant) who had married Mehmood-Ul-Rehman IAS officer from UP never lost her right to inherit property of her father. Kashmiri pundit woman Charu Walikhana (the main petitioner in supreme court) is Kashmiri by ancestry. Her family reportedly migrated from Kashmir during the Afghan period in the 18th century, at a time when the state of J&K was not even formed. Hence gender dimension has been invoked to make a smart case for abrogation of Art 35. Fundamentally the issue involved is what the Nigerian writer Chimamanda Ngogzi Adichie calls the “danger of a single story”. For decades RSS has had a historic penchant for suggesting that the change in Kashmir demography can be a solution to Kashmir problem. The final solution penchant by home minister Mr Rajnath Singh has created more suspicion.
The danger in Kashmir is not for the people of the state alone. It has bigger and serious dimensions. Distinguished political scientist Christpphe Jaffrelot writes:” India may remain a rule-of-law country only on paper and in practice a de facto ethno-state. Sangh Parivar he argues is more of India’s deep state than a parallel government” (Indian express August,11, 2018). In our anti-intellectual times the real danger is “the tyranny of the majority” anywhere and everywhere.
Gull Mohammad Wani is Professor of Political science at Kashmir university.