How perception becomes institutionalised and myth lends a nonexistent constitutional halo to incidents or status of a living or non-living identity can be best explained by the example of Jammu and Kashmir. A perception has been engendered that the state was given ‘special status’ during its accession by Article 370 of the Constitution, touted as a precondition of its merger with the Indian Union. Demands to abrogate or even dilute it invite accusations of a breach of original contract between the two identities, and of a supposed assault on ‘Kashmiriyat’. Debate on this issue has, till date, remained polemical.
Those demanding its removal are dubbed communal and anti- minority. Supporters of the ‘special status via 370’ pose as benefactors of Kashmiris. Posturing secularists fear any honest debate, as it trashes their claims regarding Article 370. Their reticence to debate is understandable, as more Sunandas will emerge to defy traditional posturing.
Jammu and Kashmir was never given any special status. This is a constitutional myth that needs unmasking through facts. Raja Hari Singh, the ruler of the state, acceded to merge into India, signing the Instrument of Accession in October 1947, exactly similar to what all acceding Indian princely states had done. Therefore, under the Constitution, Jammu and Kashmir simply became another Indian state. Besides, then PM Nehru’s understanding of the nation-state was beset with anomalies. He was so image-conscious that even from Paris during his European tour in 1948, he wrote to his home minister Sardar Patel “not to take any action which sullied India’s image in the Western world since they had been watching us very carefully”. Pragmatism and Nehruvian ideas, alas, were pole apart. It was Nehru whose actions engendered confusion, contradictions, constitutional anomalies and myths. It was he who unilaterally approached the UN without even taking his colleagues into confidence. Patel was home minister minus Kashmir. Nehru dealt with it, helped by Gopalaswamy Iyengar, a minister without portfolio.
Article 370 was born as a temporary and transitional arrangement with an objective—as the Constituent Assembly debate reveals—to fasten Kashmir’s integration with India. But what was just a procedural mechanism between the Indian Constitution and Jammu and Kashmir has been abused to defy basics of the Constitution. For instance, Article 35A was added in the Constitution via Article 370 without approaching the Parliament. ‘Secular’, ‘Socialist’ added to the Preamble have no application in the state. Unlike Nehru, Patel didn’t allow Junagarh or Hyderabad to demand concessions.
Article 370 promotes patriarchy grossly, eschewing even the semblance of equality between men and women. A woman from anywhere in the world marrying a man from Jammu and Kashmir acquires naturalised citizenship, but a woman from Jammu and Kashmir marrying even an Indian is deprived of citizenship rights within the state. Moreover, children from a marriage between a Kashmiri woman and an outsider have no claim or right in the state. Almost 130 laws of the Constitution are inapplicable in the state, including the 73rd and 74th constitutional amendments. Moreover, how the Article protects the interests of feudal lords in the state is obvious from the following instance. The Urban Land Ceiling Act has no effect in the state, conferring advantage to a handful of rich people to accumulate urban land and keep the masses deprived. Article 370’s feudal nature is also obvious from the fact that OBCs, and Scheduled Tribes in J&K are deprived of political reservations. Can Omar Abdullah explain how the demand for gender equality, reservation for OBCs, Tribals, prevention of corruption and application of the right to education militates against Kashmiriyat?
(Sinha is Honorary Director of India Policy Foundation; emails to the author can be sent at firstname.lastname@example.org)