THE BRIDGE TO THE VALLEY

By: Sanjana Sikumar (National Law University, Jodhpur)

The era of Nehruvian diplomacy is long past. Modi, unlike all his predecessors has shown a penchant for dividing people squarely into those in favour and those not pleased. Living up to his reputation, the Controversy’s Child barely waited to seat himself comfortably in his new throne, before affectionately assigning pet names to all the elephants in the room. Don’t get me wrong, I admire the Modi Government for being able to say the words ‘Article 370’ without fear of the wrath of the gods. However, what these words aim to do is to cut the bridge to the valley. And here, I am troubled by the freedom of uninformed speech.

Article 370At the expense of sounding like a history lesson, I think it is pertinent here to delve into the unique circumstances of the birth of Article 370.[1] At the time of Partition, when the Princely States were deciding whether to join India or Pakistan, a Muslim-majority Kashmir stood with an undecided fate and a Hindu ruler. Kashmir wanted to remain independent. This vision of an autonomous Kashmir was soon dispelled under the infiltration of tribal forces from the North-West which urged Kashmir to solicit New Delhi’s assistance. An Instrument of Accession was signed which promised a special status to the state within the Indian nation. Two lessons emerged for both parties: one, an independent Kashmiri existence was not a practical reality keeping in mind the turbulence in the region and the inability of Jammu & Kashmir to guard its borders in the face of strong external aggression; two, a Kashmiri identity was nonetheless, sought to be maintained.  Article 370 found origin in these circumstances, preserving Kashmiri autonomy within the Indian Union.

While this provision needs to be understood within the framework of its historical context, it must not be limited by the latter. It is not a ‘need of the time’ as has been argued by some,[2]rather, it is an expression of the will of the people of the state. It sketches out a path for the state’s union with the Indian nation, meant to serve as a guideline and to assuage the insecurities that stem from the people’s aspirations of autonomy. The separatist movements in Kashmir are evidence of this growing concern. Ironically enough, the State has responded to these disruptions by increasing the powers of the military in the region (through the operation of Armed Forces Special Powers Act in the region), which further strengthens the sentiment against excessive Central intervention in the State. The abrogation of Article 370 would be a final blow to the strained relations with the state. It would not strengthen Kashmir’s integration, rather, it would further alienate the people of Jammu & Kashmir.

The ‘saffronisation of politics’ after BJP’s victory is another element in this debate, keeping in mind the exodus of Hindus from the state. The land reforms of Kashmir have historically redistributed land from the Hindu minority to the Muslim majority that was largely landless.  The loss of land – both by reform and through violence-induced exodus, has lent a communal colour to the debate regarding the political status of the state. Some people believe that if Jammu & Kashmir is no longer able to control land ownership within the state, the Hindu majority of the rest of the nation would be better represented in this state and restore the position of Kashmiri Pandits. This is a flawed perception, perpetrated by vote-bank politics. As the Chief Minister of the state Omar Abdullah has reiterated: Article 370 is India’s constitutional link to Jammu & Kashmir.

Finally, one needs to understand that abrogation of Article 370 without consulting the people of Jammu & Kashmir violates the principle of ‘good faith’, required in one’s execution of the Instrument of Accession.  India’s consistent refusal to conduct a plebiscite and statements such as these are cited by some in a bid to strengthen the separatist sentiment. Article 370 serves as an assurance to the people that they retain a certain degree of direct control over their own decisions. The perception of Kashmiri history as distinct but complementary to Indian history has existed for a long time, and the distinctiveness of the culture of the region is sought to be preserved. This preservation is fundamental to the nature of the state’s association with the Indian union. Perhaps the unwillingness to readily join the Indian union in 1947 also stemmed from this fear of losing control over the coveted valley. This desire is also reflected in their eventual accession – it had become evident that the Pakistani state was unlikely to allow them such autonomy, even if they decided to remain independent of both the countries. The alternative then was to join the Indian Union – which seemingly allowed them such autonomy and promised to protect from external threats. The accession itself was therefore, marked by a will to preserve autonomy. The abrogation of Article 370 thus, effectively eliminates the basis of this integration.

Many have argued against the special status of Kashmir. What needs to be borne in mind is that when the historic conditions of accession are not comparable to that of other states, as is the nature of association desired at the time of said accession, it is not prudent to argue that the present-day status must be made comparable to the other states. The need is to strengthen Article 370 in order to assure the people that their historic rights are respected.[3]In fact, what promotes a different treatment of the people of the State and prevents their integration with the rest of the country is more likely the Armed Forces Special Powers Act, a reminder that the basic human rights of the citizens of India belonging to certain states can be more excusably tampered with than others. Complete integration of the state will come with respect for their unique status and the realization that the Indian citizenship of the people must nonetheless, compel the Central Government to protect their Fundamental Rights.


[1] See generally Guha, Ramchandra  (2007): “Valley Bloody and Beautiful” in India After Gandhi (Pan Macmillan).

[2] See Dehadrai, Jai Anant (2014): “Let’s not lie about Article 370” (31 May). Viewed on 15 June, 2014 (http://blogs.timesofindia.indiatimes.com/the-irreverent-lawyer/lets-not-lie-about-article-370/).

[3] “All parties should unite on Article 370 restoration” (1 June 2014). Viewed on 14 June 2014 (http://www.kashmirdispatch.com/headlines/010623637-senior-congress-leader-all-parties-should-unite-on-article-370-restoration.htm).

 


 

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