Law

Murder of Insaniyat, and of India’s Solemn Commitment to Kashmir

Kashmir’s mainstream leaders should prepare a manifesto of the United Movement of Kashmir and take to the streets, after renouncing all forms of violence, and assert their right to freedom of speech and freedom to move in peaceful procession.

“And I say with all respect to our constitution that it just does not matter what your constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion – presuming of course, that the people of Kashmir do not want it. Are we going to coerce and compel them and thereby justify the very charges that are brought by some misguided people outside this country against us?

“Do not think you are dealing with a part of Uttar Pradesh, Bihar or Gujarat. You are dealing with an area, historically and geographically and in all manner of things, with a certain background. If we bring our local ideas and local prejudices everywhere, we will never consolidate. We have to be men of vision and there has to be a broadminded acceptance of facts in order to integrate really. And real integration comes of the mind and the heart and not of some clause which you may impose on other people.”

∼ Jawaharlal Nehru in the Lok Sabha on June 26, 1952

The president’s order under Article 370 made on August 5, 2019, the Jammu and Kashmir Reorganisation Bill and the two resolutions passed this week by parliament were conceived in malice and executed in deceit. They reduce Kashmir to India’s colony.

Union home minister Amit Shah’s statement of objects and reasons on the Bill refers to Ladakh’s demand for Union Territory status and concludes “The Union Territory of Ladakh will be without a legislature’’. The UT will include Kargil as well, though Ladakh has long been on inimical terms with Kargil.

There will be another Union Territory comprising Jammu and Kashmir but Shah’s statement contains a revealing gem: “Further, keeping in view the prevailing internal security situation, fueled by cross-border terrorism in the existing state of Jammu and Kashmir, a separate Union Territory for Jammu and Kashmir is being created. The Union Territory of Jammu and Kashmir will be with a legislature.’’

Have you ever heard of a state robbing its regions of autonomy because they have suffered terrorist attacks? But, of course, this is a sham. The nearly 40-page Bill must have taken weeks to prepare. It scraps the constitution of the state of Jammu and Kashmir adopted by its elected constituent assembly and imposes on it constitutional provisions on which the views of the state’s assembly were not sought.

Watch: For Kashmiris, No Wishes From Home This Eid

Article 370 was abused to scrap the J&K constitution by a law made by India’s parliament. The Bill goes further. Significantly, it promises a fresh delimitation of constituencies. The Hindustan Times of August 6 has two reports – one by Vijdan Mohamed Kawoosa and Roshan Kishore and the other by Smriti Kak Ramachandran – which expose the motive behind the whole game. The BJP aspires to increase the number of seats in Jammu and, thus, its strength in the J&K assembly so as to woo some in the Valley and form a BJP government.

Trifurcation of J&K is an old RSS agenda

The BJP seeks to fulfill its old demands – repeal of Article 370, a Uniform Civil Code and Ayodhya. The last, through the courts; for the second, half was by legislation; and the first through parliament. Nehru had foreseen the trouble we are now in. On January 1, 1952, he said in a speech at Kolkata:

“There can be no greater vindication than this of our secular policies, our constitution, that we have drawn the people of Kashmir towards us. But just imagine what would have happened in Kashmir if the Jan Sangh or any other communal party had been at the helm of affairs. The people of Kashmir say that they are fed up with this communalism. Why should they live in a country where the Jan Sangh and the Rashtriya Swayamsevak Sangh are constantly beleaguering them?  They will go elsewhere and they will not stay with us.’’ (Selected Works of Jawaharlal Nehru: Vol. 17, p.78).

Trifurcation of J&K was mooted by Jammuites 70 years ago as the home secretary H.V.R. Iyengar warned Prime Minister Jawaharlal Nehru in a letter of April 17, 1949.  Karan Singh supported it then and now. B.K. Nehru mentioned this at length in his memoirs, Nice Guys Finish Second. A closet Hindu communalist, Singh aspired to rule Jammu.

RSS spokesman M. G. Vaidya thought trifurcation “would help contain virulence in the Valley’’ (The Times of India, September 4, 2000), the easier to convert it into a huge concentration camp.

Farooq Abdullah warned that trifurcation would split Jammu evenly; three of its (old) six districts have a Muslim majority; viz. Doda, Poonch and Rajouri.  The other three are Udhampur, Jammu and Kathua. A tehsil in Udhampur, Gool Gulab Garh, and three in Rajouri will join the Valley. Farooq Abdullah warned that India would be left with two and a half districts. A Greater Kashmir will be presented on a silver platter to Pakistan. Nehru warned Vallabhbhai Patel of this danger and wrote to his friend B.C. Roy, then chief minister of West Bengal, on June 29, 1953, on the RSS-backed Praja Parishad’s agitation for trifurcation of J&K:

“If Hindu communalists could organise a movement in Jammu, why should not Muslim communalists function in Kashmir? The position now is that if there was a plebiscite, a great majority of Muslims in Kashmir would go against us. In fact there has been some petty violence also.

“So, this movement of the Praja Parishad, which aims at a closer integration of Kashmir state with India, has had the opposite effect. It is true that so far as Jammu province is concerned, it has demonstrated that a majority of Hindus there want closer integration. Nobody ever doubted that and, whatever happens, Jammu cannot leave India. There need be no apprehension about that. The whole difficulty has been about the Valley of Kashmir and we are on the point of losing it because of the Praja Parishad movement. Psychologically, we have lost it and it would be difficult to get back to the older position….. In the ultimate analysis, we gain Kashmir if we gain the goodwill of the people there. We cannot keep it at the point of the bayonet if it is clear that the people do not want us.  For the first time, public cries are raised in Kashmir that the Indian Army should get out.’’ (Selected Works of Jawaharlal Nehru; Vol. 22; Pages 203-205).

Also read: Through the Lens of Bollywood: Kashmir as an Image, Kashmir as a Place

The eruption of militancy did not dampen the RSS’s zeal. On June 29-30, 2002 its Akhil Bharatiya Karyakari Mandal Baithak met at Kurukshetra and passed a resolution which said:

“(i) The people of Jammu think that the solution of their problems lies in the separate statehood for Jammu region. This has been demonstrated by the agitation spearheaded by the Jammu-Kashmir National Front and other organisations. The ABKM offers its support to their demand. To brand this demand for a separate statehood for Jammu region, which includes the Muslim majority districts of Poonch, Rajouri and Doda, as communal is either crass ignorance or motivated prejudice.

(ii) The BKM supports the demand for UT status for Ladakh region.

(iii) ABKM offers all its support to the forces in the Kashmir Valley that are for full integration with Bharat.” (Reorganisation of J&K State; Problem & the Solution’, July 2002).

The Modi regime’s Bill is only a step towards that goal. Before long, Jammu will be separated from Kashmir as a state proper.  This is what Modi’s broadcast of August 8, 2019 really meant.

A woman stands next to a broken window of her house that was allegedly damaged by Indian security personnel after clashes between protesters and security forces during restrictions after the scrapping of the special constitutional status for Kashmir by the government, in Srinagar, August 10, 2019. Photo: Reuters/Danish Siddiqui

Centre’s appointee cannot grant assent to the Centre

In the entire exercise, vile passions have triumphed over elementary concern with the law. The presidential order is patently unconstitutional. It is made avowedly “with the concurrence of the government of the state of Jammu and Kashmir” but no such government has existed there for over a year, evidently to facilitate this constitutional skullduggery through a stooge, the governor, Satya Pal Malik.

Article 370 itself defines the “government of the state” in an explanation which reads thus: “Explanation. — For the purposes of this article, the government of the state means the person for the time being recognised by the president as the maharaja of Jammu and Kashmir acting on the advice of the council of ministers for the time being in office under the Maharaja’s proclamation dated the Fifth day of March, 1938.”

The maharaja gave way to the sadar-e-riyasat, and to the governor. Thus, the governor cannot act under Article 370 singly as “the government of the state”. The object of the provision is to buttress the state’s autonomy. The Centre’s appointee cannot give his concurrence to the Centre.

Also read: With Its Photo Albums, Kashmir Resists and Remembers

There is a precedent directly on this very point. It is a ruling by the Supreme Court of Sri Lanka, reported by Puneeth Nagaraj in The Hindu of December 6, 2012. It concerned the Divineguma Bill. Divineguma means “uplifting lives,” and the legislation is for a poverty alleviation scheme through community level organisations. What was problematic about it was that it put the minister of economic development, Basil Rajapaksa (younger brother of the then president) in charge, giving him wide discretionary powers and funds, overriding powers devolved to the provinces. As Nagaraj wrote:

“The Bill was challenged before the Sri Lankan Supreme Court. Under Article 154G (3) of the Sri Lankan constitution, the Supreme Court sent it back to the government saying it had to be ratified by the provincial councils. There has never been a provincial council in Northern Sri Lanka (not counting the short-lived North-Eastern provincial council), and the province: is run by Colombo through ‘the governor. It was the governor who ratified the Divineguma Bill on behalf of the Northern Province. This was immediately challenged by the Tamil National Alliance before the Supreme Court through two petitions. On 1 November, the Supreme Court held that the governor cannot ratify the Bill in place of the provincial council’’.

Coming back to Article 370, the president’s order falls on the very first test and, with it, the Bill. There is another aspect to it, Article 1 of the constitution of India. The order supersedes all previous orders made under Article 370, including the order inserting Article 35A in the Constitution of India. Part III of the Constitution of J&K contains elaborate provisions for the same purpose.

The order of 2019 does not abrogate Article 370 as the RSS and BJP had always demanded. No MP noticed this. Home Minister Gulzari Lal Nanda had mentioned in the Lok Sabha on December 4, 1964, “It is through this tunnel that a good deal of traffic has already passed and more will’’.  To reduce it to a shell, the Modi regime has gone further. It has also scrapped the constitution of J&K.

Also read: Article 370 is Done But the Dawn of a New Era is Still Some Distance Away

Article 370 itself does not permit that. It begins by saying that Article 238 will not apply to Kashmir. Article 370 limits the president’s power to apply to the state only items in the Union and concurrent Lists; after consultation with the state if they are already comprised in the Instrument of Accession, namely those comprised in defaces, foreign affairs and communications.  But if they go beyond those, the concurrence of the state’s constituent assembly is necessary. However, till it is “convened”, the government of the state can give its concurrence; but subject always to its ratification by the constituent assembly (Article 370(2).

Clause (3) is relevant for the issue of amendments. It says:

“(3) Notwithstanding anything in the forgoing provisions of this article, the president may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and form such date as he may specify:

Provided that the recommendation of the constituent assembly of the state referred to in clause (2) shall be necessary before the president issues such a notification.”

Article 368 on parliament’s power to amend India’s constitution does not apply to J&K unless the amendment is applied to the state by the president under Article 370.

The Jammu and Kashmir constituent assembly. Photo: tahirsyeed.blogspot.com

Once the constituent assembly of Jammu and Kashmir was “convened”, to use the exact word in Article 370, the state government lost its interim power to accord its concurrence. And when this body dispersed on January 27, 1957 after adopting the state’s constitution, there vanished also the president’s powers – under Article 370 – to add more legislative powers to the Centre in respect of J&K or extend to the state any other provision of the constitution of India. Conscious of this, the president of the Kashmir constituent assembly, G.M. Sadiq, formally dissolved the body on January 25, 1957 pursuant to a formal resolution on dissolution passed on November 17, 1956.

India’s’ constituent assembly simply dispersed without any such formality. Kashmir’s constituent assembly consciously decided on November 17, 1956 that “it shall stand dissolved on the 26th January 1957”. Thus, no more powers to the Centre can be added thereafter and no more extensions of the constitution of India either.

Article 370 refers to J&K’s constituent assembly twice, this recognising its right to have its: own constitution. That cannot be nullified by an executive order by the president at the instance of the Central government even if it claims to have been made with the consent of Governor Satya Pal Malik.

Rajendra Prasad on ‘temporary’ nature of 370

It is a matter of common sense that Article 370 cannot be used, rather misused till eternity. It had to end once J&K’s constituent assembly decided finally on the constitution and, relatedly, the Union’s powers.

President Rajendra Prasad, himself a distinguished lawyer, pointed this out to Prime Minister Nehru in a note date September 6, 1952. He said specifically:

“This clause is of a peculiar and exceptional nature inasmuch as it authorises amendments of the constitution by an executive act of the Government of India as distinguished from parliament. … While it safeguards in clause (2) the right of the constituent assembly of Jammu and Kashmir to revise or annul any action taken by the government of that state in giving concurrence under clause 1(b)(ii) and the second proviso to clause 1(d) of Article 370, it excludes altogether the parliament of India from having any say regarding the constitution of Jammu and Kashmir…

“Abrogation of that article would result in the whole constitution becoming applicable to the state of Jammu and Kashmir without any exception or modification. But the article itself has been very peculiarly worded, for paragraph (c) of clause (i) of that Article expressly applies the provisions of Article 1 and of that Article to the state. In fact, it is because of this application of Article l to the state that the state is included within the territories of the Union. The abrogation of Article 370 abrogates along with it application of Article 1 to the state, with the result that the state ceases to be part of the territory of India…

“Extensive power is conferred on the president to apply the constitution to the state with such exceptions and modifications as may be specified in the notification, and the question at once arises whether such an extensive power is exercisable from time to time or is exhausted by a single exercise thereof. Judging by the language employed and by the very exceptional nature of the power conferred, I have little doubt myself that the intention is that the power is to be exercised only once, for then alone would it be possible to determine with precision which particular provisions should be excepted and which modified. The fact that the president is also required to specify the date from which the notification is to take effect also tends to confirm this view. Although the phrase ‘exceptions and modifications’ is used, there can be no doubt that what is involved is really an amendment by executive order of the constitution in relation to the state of Jammu and Kashmir. Parliament could never have intended that such an extraordinary power of amending the constitution by executive order was to be enjoyed without any limitation to the number of times on which it could be exercised or as to the period within which it was exercisable or as to the scope and extent of the modifications and exceptions that could be made.

“It cannot be seriously maintained that for all time to come, the application of our constitution to Jammu and Kashmir would derive its authority from Article 370, to the complete exclusion of parliament. The marginal note to Article 370 itself describes the nature of the Article as ‘Temporary Provisions with respect to the State of Jammu and Kashmir’. The correct view appears to be that recourse is to be had to this clause only when the constituent assembly of the State has been fully framed. ‘’

(Emphasis added The full text of Rajendra Prasad’s letter is available in A.G. Noorani, Article  370 (OUP; Pp. 205 – 210)

Bakshi Ghulam Mohammed, the then Prime Minister of J&K, led a delegation comprising G M Sadiq, Mir Quasim, Girdhari Lal Dogra, D P Dhar and Justice Shahmiri with the president, Dr Rajendra Prasad when they called on him at Rashtrapati Bhawan on January 28, 1954.
Photo: KashmirLife.net

How ‘temporary’ becomes final

N. Gopalaswamy sponsored Article 370 in India’s constituent assembly. His exposition is authoritative, as the Supreme Court has repeatedly declared. He said on October 17, 1949:

 “Part of the state is still in the hands of rebels and enemies. We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.

“Again, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the state to decide for themselves whether they will remain with the republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the state. …

“In some of the clauses of this Article we have provided for the concurrence of the government of the state. The government of the state feel that in view of the commitments already entered into between the state and the Centre, they cannot be regarded as final authorities for the giving of this concurrence, though they are prepared to give it in the interim periods but if they do give this concurrence, this clause provides that concurrence should be placed before the constituent assembly when it meets and the constituent assembly may take whatever decisions it likes on those matters. …

“The provision is made that when the constituent assembly of the state has met and taken its decision both on the constitution for the state and on the range of federal jurisdiction over the state, the president may on the recommendation of the constituent assembly issue an order that this article 306A [i.e. Article 370 in the final draft of the constitution] shall either cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by him. But before he issues any order of that kind the recommendation of the constituent assembly will be a condition precedent. …

“When it has come to a decision on the different matters, it will make a recommendation to the president who will either abrogate article 306A or direct that it shall apply with such modifications and exceptions as the constituent assembly may recommend.”

Gopalswamy’s explanation, read with Rajendra Prasad’s note, establishes that Jammu and Kashmir’s constituent assembly had to determine the final position and then ask the president to notify that Article 370 shall cease to be operative. This explains its “temporary” character.

Prasad referred to an aspect which a Union home minister and a prime minister more intelligent than Amit Shah fully understood – that Article 1 of India’s constitution establishing a “Union of States” applies to J&K by virtue of Article 370 (1)(c).

Also read: ‘I Am More Afraid Than I Have Ever Been’: A Personal Account From Kashmir

On March 1, 1993, S.B. Chavan pointed out that Article 370 is “the only link” India has with Kashmir (The Statesman, March 2, 1993).   As Narasimha Rao said on June 12, 1996, “Abrogation of this Article is just not possible, unless you want to part with the state’’.

Though the BJP regime has, in breach of its solemn promises, not abrogated Article 370 by enacting the order and the Bill, it has parted with the Kashmiris’ confidence politically, with all its repercussions constitutionally.

Legislative skulduggery emerges in Clause 2(d) of the president’s order. It amends Article. 370 (3) to say that the expression “Constituent Assembly of the State” referred to in clause (3) of Article 370 “shall read ‘Legislative Assembly of the State’.” This is shocking.

A constituent assembly is a body wielding constituent powers as a sovereign body.  It itself establishes a legislative assembly with limited powers it defines. J&K’s constituent assembly ceased to exist on January 20, 1957. The assembly it created in J&K’s constitution survives still (Article 46). How can you endow it with constituent power to accord its concurrence to the Centre to destroy the state’s autonomy?

From State of the Union to de facto colony

Thus, the entire order is afflicted with defects and is a nullity. So, in consequence, is the entire Reorganisation Act which is based on it. The state of Jammu and Kashmir had an identity, a persona, since 1846 domestically and internationally. It has been reduced to a colony by the order and the Act.

Article 370 permitted the Centre to extend legislative powers and constitutional provisions to Kashmir. It does not permit the Centre, even in its hollowed form, to amend the state’s constitution. The Act does just that. It has no power (Section 4) to make J&K a Union Territory. The state’s constitution is not formally repealed; a new one is imposed by the Act. It has detailed provisions. Uniquely among the princely states, one. of the biggest among them will have a constitution in whose drafting it had no say, amendments to the state’s constitution are made  freely, explicitly, by some babu in the central secretariat.

Clause 134(1) says “there shall be an administrator appointed under Art.. 239 of the constitution of India in the territory of Jammu and Kashmir and shall be designated as Lieutenant Governor of the said Union Territory”. What follows is a detailed constitution for this God-forsaken state of  J&K. The Centre can appoint a Kiran Bedi as Lt. Governor. The legislative assembly will have no powers in respect of “public order” and the “police”. Parliament will have unlimited powers on J&K and so will the Central government – unchecked by the state list or the concurrent list.

Rajendra Prasad shaking hands with Jawaharlal Nehru after signing the Constitution in 1950.

Kashmir’s legislative assembly is not emasculated. It is castrated. Financial Bills cannot be moved in the assembly without the prior approval of Lt. Governor (Section 36). It will have less power than the provinces of British India under the Government of India Act, 1935.

Part V (Section 59 to 64) deals with delimitation of constituencies, An Act of 103 sections, containing a host of minutiae, could not have been drafted in the short period in which the Centre and the governor were pouring out one assurance after another.

Justice S. R. Tendulkar, a fearless judge of the Bombay high court once remarked, “the dark hours of the night are used for perpetration of dark deeds, not for execution of lawful orders.” The then CM, Morarji Desai, put an end to orders requisitioning flats, which were executed at night. The build up of armed forces, the ban on all forms of communication and on movement of people suggest that the Centre feared a popular revolt against its repressive laws. If not immediately, at some time or the other revolt they will.

Amit Shah said on August 5 that if the Union Territory “model worked well, the government would consider giving Jammu and Kashmir the status of a state again and “no constitutional amendment would be required”. Modi affirmed this in his broadcast on August 8. In colonial times, the British offered similar assurances to their vanquished British subjects.

The illegalities pile up

Not only has the most elementary respect for political morality been thrown to the winds but so is concern for legality. Amit Shah’s two so-called “statutory resolutions” of August 5 make one laugh. One reads thus,

“In exercise of the powers conferred by Clause (3) of Article 370 read with clause (1) of Article 370 of the constitution of India, the president, on the recommendation of the parliament, is pleased to declare that, as from 5th August, 2019, all clauses of the said Article 370 shall cease to be operative except clause (1) thereof which shall read as under namely:

“All provisions of this constitution as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 or Article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law,  document, judgment, byelaw, rule, regulation, notification custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 366 or otherwise.’’

Kashmir’s  Administrative Services are abolished. The IAS alone will govern. Illegality in the other resolution is even more scandalous:

“That the president of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this house under the proviso to Article 3 of the constitution of India for its views as this house is vested with the powers of the state legislature of Jammu and Kashmir, as per proclamation of the president of India dated December 19, 2018. This house resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill, 2019.”

One illegality is mounted on another. Article 3 on the formation of new states and alteration of state’s boundaries had been applied to J&K by the 1954 presidential order with this revealing additional proviso: “Provided further that no Bill for increasing or diminishing the area of the state of Jammu & Kashmir or altering the name or boundary of the state shall be introduced in Parliament without the consent of the Legislature of the state”. This rider got frozen with the dissolution of the state’s constituent assembly in January 1957 and cannot be scrapped or over-ridden.

Also read: Article 35A Is Dead: Long Live Article 35A

This was in addition to a safeguard promised to all the other states, namely, the president had to refer the Bill to the affected state’s legislature and the Bill could be introduced in parliament only after the president’s recommendation. In regard to J&K, its consent was necessary; for all others, ‘consultation’ was all that was required.

What the second resolution does is to discard even the requirement of consultation, getting parliament to play the role envisaged in the constitution by the state legislature. This is a solemn fraud. The provisos to Article 3 are designed to respect the federal principle. This resolution turns those on its head. It holds that since parliament is vested with the powers of Kashmir’s (or any state’s) legislature when it is under president’s rule, it can give its consent to the president as if it was the state assembly itself.  Hence the resolution: “This house (of parliament) resolves to express the view to accept the J &K Reorganisation Bill”.

To sum up:

1. (a) The order under Article 370 is made with the concurrence of the Centre’s appointee, the governor on the pretext that he is the state government. However, after 1951, the state government had lost its interim power to accord consent. It now belonged to the state’s constituent assembly;

(b) It turns the state assembly into the constituent assembly (which was dissolved in 1957) with retrospective effect, and

(c) The governor of the state is turned into the ‘government of the state’.

2. The Bill reduces the ancient state of Jammu and Kashmir to the status of a Union Territory, forget “the basic structure” of the constitution.

3. The resolutions cap all this by substituting parliament for the state legislature and empowering parliament to give consent to itself.

So much for the law. These three measures together inflict on the people of Kashmir a humiliation more degrading than the one inflicted on August 8, 1953 by the ouster of Sheikh Abdullah from the office of premier of J&K. It deepens the divide between India and Kashmir, and between Kashmir and Jammu and Ladakh. As in the case of the crime of 1953, these measures have won popular jingoistic approval today but are certain to arouse deep regrets later.

“They now ring the bells, but they will soon wring their hands”, Sir Robert Walpole   famously said on the declaration of war with Spain in 1739.

What the Kashmiris want

One cardinal factor which successive governments of India since Nehru have deliberately ignored is the people of Kashmir. They were opposed to the state’s accession to India from the very beginning. The raiders from Pakistan forced Sheikh saheb’s hands.

Gopalaswamy Ayyangar. Photo: Wikimedia Commons

In Nehru’s presence, Sheikh Abdullah proposed to the British Commonwealth minister Patrick Gordon-Walker the accession of J&K to both India and Pakistan. The minutes of the meeting of the defence committee of the cabinet on October 25, 1947 before the accession tell the tale. Nehru, the accessionist, said, “The question was whether temporary accession would help the people in general to side with India or whether it would only act as an irritant?” Why? Because they were as opposed to accession then as they are now. That is why on October 26, the hardliner Gopalaswamy Ayyangar, former dewan of J&K, opined that “immediate accession might create further opposition.”

On May 14, 1948, Indira Gandhi wrote to her father from Srinagar: “They say that only Sheikh Saheb is confident of winning the plebiscite…’ (Sonia Gandhi [ed.]) Two Alone, Two Together, Penguin, New Delhi, 2004, pp. 512-18). Five years later, even Sheikh Abdullah had abandoned hope as President Rajendra Prasad reported to Prime Minister Nehru on  July 14, 1953.

In a letter to Nehru on May 1, 1956, Jayaprakash Narayan reported that “95% of Kashmir Muslims do not wish to be or remain with India”. Nehru had foreseen the danger that the Sangh Parivar posed. At a rally in Calcutta on New Year’s Day 1952, Nehru warned:

“If tomorrow Sheikh Abdullah wanted Kashmir to join Pakistan, neither I nor all the forces of India would be able to stop it because if the leader decides, it will happen. So what the Jan Sangh and the Rashtriya Swayamsewak Sangh are doing is to play into the hands of Pakistan…. Just imagine what would have happened in Kashmir if the Jan Sangh or any other communal party had been at the helm of affairs. The people of Kashmir say that they are fed up with this communalism. Why should they live in a country where the Jan Sangh and the Rashtriya Swayamsewak Sangh are constantly beleaguering them? They will go elsewhere and they will not stay with us.” (SWJN, Vol. 17: pp 77-78)

In 2019, secession is ruled out; not so, an accord acceptable to all the three parties India, Pakistan and the people of Kashmir.

The road ahead

However, one fears that the Modi government will go further still. On July 20, 2019, defence minister Rajnath Singh said in threatening words: “Resolution of Kashmir issue is bound to happen and no power on earth can  stop it. If not through talks, then we know how.” Plans for a crackdown were in place. As the historian of ancient Rome, Tacitus, said “They created desolation and call it peace”. The people of Kashmir will not submit to it. Rise they will.

Kashmir’s leadership is now on trial as never before. It must go beyond the Gupkar Declaration. A small committee comprising Dr. Farooq Abdullah, Mehbooba Mufti and Shah Faesal should prepare a manifesto of the United Movement of Kashmir and take to the streets, after renouncing all forms of violence, and assert their right to freedom of speech and freedom to move in peaceful procession. It must put forth a constructive agenda of action.

Also read: Echoes of China: Unpacking the Mythology of the End of Article 370

No self-respecting Kashmiri can possibly agree to stand for elections to any assembly of the Union Territory. Gandhi asked Congressmen to boycott polls under the colonial Government of India Act, 1919. They took to satyagraha. The time has come to abandon shutdowns and the like. A United Front alone can impress nationally and internationally. The Simla Pact speaks of “a final settlement of Jammu and Kashmir”. To break up the state is to wreck the pact.

Remember, Article 370 is no mere provision enacted by the Constituent Assembly of India. It gives effect to a solemn compact negotiated over five long months between the Government of India and the Government of Jammu and Kashmir. History will never forgive those who wrecked it calculatedly since May 1954 and then demolished it on August 5, 2019. The first street protests erupted on August 9.  Wait for what follows.

A.G. Noorani is a lawyer and writer. His book, Article 370: A Constitutional History of Jammu and Kashmir, was published by Oxford University Press in 2011.