With Jammu and Kashmir Chief Minister Omar Abdullah's open offer to debate Article 370 of the Constitution (which bestows a special status on Jammu and Kashmir), anywhere in India with the Bharatiya Janata Party's prime ministerial candidate Narendra Modi, the scene is set for another contentious chapter in politics being reopened.
Revisiting Article 370 is one of those things, like a common civil code, that the BJP has talked about from time to time without really doing anything about it even when in power. The justification then was that as the BJP was part of a coalition, issues on which coalition partners did not agree - like building of a Ram temple on the vestiges of the Babri Masjid in Ayodhya - would be kept in abeyance. Now with Modi's somewhat uninformed interpretation of Article 370, it has once again come centre-stage. If the debate catches on, it could lead to a prolonged and heated polemic on the status of Kashmir, India's relationship with Pakistan and how to address the cry for self-governance by Kashmiris.
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India has always claimed that the accession of the state of Jammu and Kashmir to India is absolute and legally unconditional. This claim is both for legal convenience and to justify extant political reality. Recent research shows this is not actually so: that there are several legal infirmities in the process of accession. Constitutional expert A G Noorani says: "An Instrument of Accession had been drafted as far back as in 1935 when the British Parliament enacted the Government of India Act, 1935. Its federal part never went into operation when the Act came into force on April 1 , 1937 since the princes refused to accede. But the part conferring responsible government and autonomy on the provinces of British India did come into effect."A decade later, in 1947 V P Menon, the brilliant reforms commissioner, pressed into service the draft of the Instrument of Accession. In October 1947, Hari Singh fled from Srinagar to Jammu in panic, abandoning his capital - a fact which, in the eyes of the legal advisers in the British Foreign Office, robbed his signature of any validity when the Instrument of Accession was signed in Jammu. But in law (Section 6 of the Act of 1935) its acceptance by the governor-general was an indispensable part of the entire process. Mountbatten's letter of acceptance is, therefore, of decisive importance. Replying to Hari Singh's letter of October 26, forwarding the Instrument signed by him, Mountbatten wrote on October 27: "Your Highness' letter dated 26 October has been delivered to me by Mr V P Menon. In the special circumstances mentioned by Your Highness my Government has decided to accept the accession of Kashmir state to the dominion of India. Consistently with their policy that in the case of any State, where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government's wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State's accession should be settled by a reference to the people." (White Paper on Jammu and Kashmir 1949, p. 46). This letter also recorded that the accession was a subject of a "dispute".
Recall that in 1947, sensing that Hari Singh might favour accession to India rather than Pakistan, and in reaction to violence, Muslim rebels (Kabailis) began stirring up the people, inciting an uprising against the taxation and others laws imposed by the Maharaja. In the disturbed conditions, Indian Army action took place even as India accused Pakistan of violating the Stand Still Agreement.
The result was, the wishes of the people of the state (unlike in Junagadh) were never ascertained, something that rankles Kashmir to this day. It fell to Sheikh Abdullah to negotiate a package of measures as the bottom line for the incomplete accession, which have since then been whittled down so much that they are really nominal. Under Article 370, Jammu and Kashmir became a country within a country, with its own flag, emblem, constitution and Sadr-i-Riyasat (Prime Minister).
In fact, the existence of an Election Commission, the Comptroller and Auditor General and other instrumentalities of federal India have rendered all this quite irrelevant. For the BJP, the continued existence of Article 370 on the statute books is atrocious, whether it is relevant or not. For the All Party Hurriyat Conference, it is a testament of faith and a confidence building measure that reassures them that the state will not lose its identity, even if it is run from under the jackboot of the Indian Army. Says Radha Kumar, one of the interlocutors appointed by the United Progressive Alliance government to have a dialogue with Kashmir: "It is common sense that when you have two opposite poles, you try to seek a mid-point from which to take off. If the BJP thinks Article 370 gives far too much and the Hurriyat thinks it gives far too little, then it represents a mid-point. It also happens to be a historical bone of contention and features in the positions of the two major regional political parties, the National Conference and the opposition Peoples Democratic Party. The only way in which it could be ignored or bypassed is if all the stakeholders agree that it is obsolete. Will they do so?"
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At a rally in Hindu-dominated Jammu Modi demanded a debate on Article 370, especially in the light of the fact that it differentiates between men and women. He charged that it is because of Article 370 that Omar Abdullah has land rights in Kashmir and his sister, Sara, who is married to Sachin Pilot, doesn't.The reality is that in 1890 the Maharaja of Kashmir had instituted a law preventing outsiders from owning land and property in the state. This law was further strengthened in 1927. The law made sense in those days, since it was meant to prevent the colonial British from establishing their presence in the state. But in October 2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent resident of the state would not lose her permanent resident status on marrying a person who was not a permanent resident and would enjoy all rights, including property rights.
Scholar Amitabh Mattoo, in an article, says: "Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services. Article 370 is synonymous with decentralisation and devolution of power, phrases that have been on the charter of virtually every political party in India. There is no contradiction between wanting J&K to be part of the national mainstream and the State's desire for self-governance as envisioned in the Article".
Mattoo also notes that in the past, the political position of all opposition political parties, including BJP, has been for constitutional protection to Jammu and Kashmir via Article 370.
A debate on Article 370 is possible, maybe as the BJP says, even desirable. But does India have the stomach for it?
