On August 5, as the residents of Jammu and Kashmir were facing curfew and a complete information blackout, the representatives of the rest of India decided on the fate of J&K. Very few would argue against the need to amend Article 370. However, many would argue for consensus before amending it. The skewed consensus developing in the national capital or the lack thereof with the people of J&K was patently farcical for as Marx once quipped that history is reenacted twice over, once as grand tragedy and the second time as rotten farce.
A rough parallel may be drawn between amending Article 370 and the creation of Vishalandhra. The State Reorganisation Commission in 1955 effectively captured the concerns of the Telangana people. Prime among these concerns was the virtual colonisation of Telangana by the more educated and enterprising residents of Andhra. Another important concern highlighted by the committee was Telangana’s rights to its rivers and water security.
In its concluding remarks, the committee noted “...while opinion in Andhra is overwhelmingly in favour of the larger unit, public opinion in Telangana has still to crystallise itself. Important leaders of public opinion in Andhra themselves seem to appreciate that the unification of Telangana with Andhra, though desirable, should be based on a voluntary and willing association of the people and that it is primarily for the people of Telangana to take a decision about their future.”
In 1956, the two states were merged with a caveat in the form of a nonbinding gentleman’s agreement, despite the committee adducing that such an agreement would be ineffective. It wasn’t long before the agreement was breached and the seed of the Telangana movement was sown. The discontent of the Telangana people eventually burst into protest.
The PM’s eight-point plan failed to satisfy demands, and the future six-point formula and Government Order 610 which were meant to correct the breach of the gentlemen’s agreement were also breached by successive governments. Fast forward to 2014 and the Telangana movement had culminated in the creation of a separate state. The amendment of Article 370 without the ‘voluntary and willing association of the people’ bears an uncanny resemblance to the tragedy of 1955. In light of this, one cannot help but imagine a future J&K that is dissatisfied with the unilateral terms forced upon it.
It would be advisable not to turn a Nelson’s eye to the unrest that followed in Telangana when assurances were made and broken repeatedly. On the face of it, it seems the current establishment has taken a leaf out of its predecessors' playbook. One may call it political legerdemain but the fact remains that what was left of constitutional propriety was defenestrated on both occasions.
Both bills were introduced in the last days of the parliamentary session, thus preventing informed debate and dissent. In both instances, there were blackouts; while in 2014 the Lok Sabha was blacked out temporarily, this time an entire state had been blacked out. Constitutional propriety of accepting the resolution of the state Assembly was done away with, today a temporary declaration of emergency cuts through the ‘clutter’. These unfortunate events have established a precedent that does not portend well for India’s federal structure.
The government has repeatedly made assertions that terrorism and unrest in the Valley will come to an end with the removal of J&K’s special privileges. Under a government, with the absolute majority, it might appear like a contained situation but it may very well become a volatile situation waiting to erupt in the absence of a strong government. In the past two decades, an absolute majority government is an exception if anything. So, the implications of amending Article 370 may be borne by a future coalition government and any amicable relation between J&K and India if it still exists will be strained even more.
Nevertheless, what can be said with surety is that brute military force is not the answer. The Sri Lankan civil war is a reminder that denying people their unique identity and right to self-governance is a recipe for conflict. Another ignored precedent may be cited. In 1970, the President exercised his power under Article 366 of the Constitution to end privy purses.
On challenge, the Supreme court stated that when guarantees were given by the Constitution, the paramountcy of the government does not exist. It further went on to state: “The Rulers are citizens of India and the President or the Government of India cannot invoke the doctrine of paramountcy to sustain an illegal inroad upon the rights of citizens.” The government eventually resorted to constitutional means and passed the 26th constitutional amendment to end privy purses and withdraw recognition. The amendment of Article 370 recreates a similar legal situation.
It is open to challenge whether the president’s power under Article 370 creates a paramountcy so as to amend a provision of the constitution by executive order. The violence in Hong Kong and Palestine have shown economic integration and development are in themselves not the key to integration. As human development indicators would show, the economic aspirations of J&K are much higher than of most other states. The government would need to redouble its efforts to underscore the benefits of integration. Peace and integration will not be possible without consensus generated organically. What will be the fallout of this fait accompli? History stands as reference and precedent.
(Assisted by Noel Therattil)