Article 370 (Article 306A of the Draft Constitution) was a self-contained code that defined and regulated the relationship between the state of Jammu and Kashmir and the Union of India. It was carefully drafted so as to ensure a smooth accession of the former princely state of J&K to the Indian Union. It had acceded to India in the face of a military invasion. With the adoption of the state’s constitution, specifically recognising that J&K was an integral part of the Union, any change to the relationship between J&K and the Union, as expressed in Article 370, could only be brought about on the Constituent Assembly’s recommendation. So it is moot whether Article 370, in its temporary form, remained relevant.
Beginning from 1954, the state legislature initiated amendments to Article 370 that brought it to almost complete conformity with India’s laws. And working in the state administration in good times and bad, it became obvious to me that Article 370 was widely considered redundant. It is now up to a Constitution Bench of the Supreme Court to determine the constitutionality of its nullification.
Of much greater relevance in the next few days is how the Kashmiris view the Union government’s measure. It has been contended by no less than Prime Minister Narendra Modi that the state’s special status had impeded development. But with just around 12% below the poverty line, J&K should be the envy of states that are considered developed, including Gujarat.
The state enacted and successfully enforced the Big Landed Estates Abolition Act, 1950, under its first prime minister Sheikh Abdullah. Even the bitterest critic will concede this was the most progressive land reform effected anywhere in India. The law helped expropriate 4.5 lakh hectares of cultivable land held in excess of 22.75 acres (excluding orchards) from 9,000 absentee landlords and redistribute it among the landless peasantry. This is one of the main reasons for the low levels of poverty in Kashmir now. Under Abdullah, J&K was also the first to provide free education to all children up to high school. Today young men and women educated in Kashmir are leading contenders in all-India service exams. The Rhodes scholar of 2018 was a Kashmiri.
Having been brought into conformity with India’s laws, Article 370 had outlived its purpose, interrupting speedy enforcement even of the most progressive laws such as the Right to Information Act. But admittedly, the state Act adopted in 2009 was more progressive than the national law of 2005. The reading down of Article 370 was thus a conclusion of a phase of the state’s constitutional evolution and democratic process demanded that public participation be sought in building a new, more productive phase.
The J&K Reorganisation Act of 2019 that eliminated the state of J&K and turned it into two Union Territories negated such aspirations. It is again moot whether the Indian federal scheme, as exemplified by Articles 1 and 3 of the Constitution, allows for Parliament to downgrade a federal entity into an administrative unit, which a UT is.
But by imposing a total lockdown in the state to back the tearing away of what was no more than a fig leaf, detaining those who had always been loyalists of the Indian state and participants in governments that had readily acted under the diktat of the Intelligence Bureau, the Union government has administered a mortal blow to any pretensions of democratic freedom in Kashmir. Srinagar’s cathedral mosque has been sealed, its compound fencing laced with concertina wire. But in Srinagar’s mohallas, neighbourhood mosques are a live conduit for communication in the absence of instruments such as simple cell phone messaging.
The UT of J&K will now be led into its future by youth, educated, talented and consumed with hatred, 12,000 of whom have been detained under the draconian Public Safety Act, to be held indefinitely in locations undisclosed even to their families, without trial, including juveniles as defined under India’s Juvenile Justice Act.
There has been no widespread violence but Kashmiris have responded with a totally silent but exhaustive shutdown of their own, with markets opening only early morning and late evening to allow homes to continue functioning. The government has ascribed this to terrorism, without explaining how a handful of terrorists are able to enforce this. As a young businessman told me, “We are used to this and will survive.”
The new dispensation is unlikely to affect the functioning of the government within J&K. Unless it reaches out to its people and allows freedom of speech and expression, including the free recourse to modern technology, the existing instrumentalities of government will continue. Business is at a standstill, but there is a huge opportunity with qualified young Kashmiri businessmen anxious to invest. The government’s proclamation of a minimum support price for the bumper apple harvest found few takers, and schools, although open and staffed, are unable to hold classes as students have kept away.
Restoration of democratic liberties, including land rights of the Kashmiris, and release of political prisoners must be the first step if a way forward is to be found. A series of consummate administrators served as Governors of the state when it was under central rule in 1990-96 and again later. Can Kashmiris hope that the government under a Lt Governor would be the same? To my mind, full statehood alone will get Kashmiri support, even if only tacitly from the separatists.