Kashmir, Modi, and the Indian Constitution

The recent unilateral decision of Prime Minister Narendra Modi’s government to revoke Article 370, which guaranteed the special status of Jammu and Kashmir (J & K), and the dismemberment of the State, are flagrant violations of the sovereign Constitution of India. These maneuvers jeopardize the federal structure of India. The erosion of the rights and privileges of a State is an unhealthy precedent to set in a diverse and federal country. The current curbing of political and civil rights in Jammu and Kashmir is deplorable.

HISTORICAL PERSPECTIVE

On 26 October 1947, Maharaja Hari Singh signed the “Instrument of Accession” to India, officially ceding to the government of India his jurisdiction over defense, foreign affairs, and communications. The accession of J & K to India was accepted by Lord Mountbatten with the proviso that once political stability was established in the region, a referendum would be held in which the people of the State would either validate or veto the accession. After signing the Instrument of Accession, the maharaja appointed his political adversary, Sheikh Mohammad Abdullah, as the head of an interim government.

Pandit Jawaharlal Nehru, the first prime minister of independent India, reiterated his government’s pledge not only to the people of Kashmir, but also to the international community, to hold a referendum in Indian- and Pakistani- administered Jammu and Kashmir under the auspices of a world body like the United Nations, in order to determine whether the populace preferred to be affiliated with India or Pakistan. Nehru emphasized this commitment several times at public forums over the next few years.

In 1948 India referred the dispute to the United Nations. Prime Minister Nehru took the dispute with Pakistan over Kashmir beyond local and national boundaries by bringing it before the UN Security Council, and seeking a ratification of India’s “legal” claims over Kashmir.

The UN reinforced Nehru’s pledge of holding a plebiscite in Kashmir, and in 1948 the Security Council established the United Nations Commission for India and Pakistan ( UNCIP) to mediate the Kashmir issue. The UNCIP adopted a resolution urging the government of Pakistan to cease the infiltration of tribal mercenaries and raiders into J & K. It also urged the government of India to demilitarize the State by “withdrawing their own forces from Jammu and Kashmir and reducing them progressively to the minimum strength required for the support of civil power in the maintenance of law and order.” The resolution proclaimed that once these conditions were fulfilled, the government of India would be obligated to hold a plebiscite in the State to either ratify or veto the accession of J & K to

India.

In the meantime, the Government of Jammu and Kashmir negotiated with the central government to ensure that it would be allowed to function as a fully autonomous unit within the federation. Article 370 of the Constitution of India ensured that, apart from defense, foreign affairs, and communications, decisions with regard to other matters would be determined with the consent of the Government of Jammu and Kashmir. There was a reason that special status was guaranteed to Jammu and Kashmir under Article 370 of the Indian Constitution. On 13 July 1950, the new government of J & K, headed by Sheikh Mohammad Abdullah, made a landmark decision.

“Between 1950 and 1952, 700,000 landless peasants, mostly Muslims in the Valley but including 250,000 lower-caste Hindus in the Jammu region, became peasant- proprietors as over a million acres were directly transferred to them, while another sizeable chunk of land passed to government-run collective farms. By the early 1960s, 2.8 million acres of farmland ( rice being the principal crop in the Valley) and fruit orchards were under cultivation, worked by 2.8 million smallholding peasant-proprietor households.”

This metamorphosis of the agrarian economy had great political consequences. This revolutionary measure, which greatly improved the human development index in the State, would not have been possible without Article 370. The political logic of autonomy and the Indian Constitution were necessary to bring about socioeconomic transformations.

The legislative bill, which had orchestrated this transformation, won the unstinting support of thousands of previously disenfranchised peasants. But displaced landlords and officials of the preceding Dogra regime made no bones about their hatred of the political supremacy of the new class of Kashmiri Muslims. This hatred unleashed a reign of terror and brutality against the Valley’s new political class.

The defining moment in Jammu and Kashmir’s post-Indian independence history came in 1950 when disenfranchised peasants were liberated from landlords by a law that made them owners of the land they tilled. The Big Landed Estates Abolition Act passed on July 13, 1950, and these land reforms changed Kashmiri society. Overnight, the impoverished local farmers, who had toiled to fill the granaries of landlords, became landowners themselves who could benefit from their own hard work. This reform required that exploitative landlordism be abolished without compensation and that tillers be enfranchised and granted the lands they worked on.

In the Indian subcontinent, many policy makers, political scientists, and economists have acknowledged the effectiveness and rigor of land reforms in Jammu and Kashmir. Underprivileged farmers in each of the three parts of the State—Jammu, Kashmir, and Ladakh— benefited.

In 1952, the government of J & K reiterated the commitment to secularism and democracy, which enabled the forging of ties with the Indian nationstate. The “new Kashmir,” to which would belong the hitherto peripheral Muslim population and marginalized women, was welcomed.

But there was an alternative perspective. Since the 1940s, a Hindu nationalist party, Praja Parishad, had sought to absorb religious minorities into a centralized and authoritarian state. These integrative and centralist measures were met with massive opposition, which the government of India suppressed with bloody maneuvers. The volcanic protests in the Kashmir Valley gave a veneer of legitimacy to its repression of the Plebiscite Front. Sheikh Mohammad Abdullah was also arrested, for the umpteenth time, to further hush the voices of dissent.

In his letter to Shyama Prasad Mukherjee, founder of the Bharatiya Jan Sangh, he wrote:

“When talking about the constitutional aspect, it is sometimes conveniently forgotten that the Praja Parishad wants that Article 370 should be expunged from the Constitution.

“...But let me assure you and the people of India that the Muslims in Kashmir will not falter from their ideals even if they are left alone in this great battle for secularism and human brotherhood.”

The Constitution of India guarantees respect for the rule of law, the independence of the judiciary, and the integrity of the electoral process. But provisions of the Constitution of India have too often been breached in Kashmir, and the ideals that it enshrines have been forgotten.

In Kashmir, rights guaranteed by the Constitution have clearly been flouted. The revocation of Article 370 without consultation makes it clear that the much lauded parliamentary democracy in India has been unable to protect democracy in Kashmir.

Heads of Governments cannot avoid their ethical and moral responsibilities toward the peoples of the states in a federal country. The lives of those people cannot be torn asunder by paramilitary forces and other “upholders” of the law.

BLOW TO KASHMIRIYAT

Kashmiriyat— my Kashmir identity and patriotism— was not handed down to me as an unachievable and abstract construct. On the contrary, it was crystallized for me as the eradication of a feudal structure and its insidious ramifications. It was the right of the tiller to the land he worked on. It was the unacceptability of any political solution that did not take the aspirations and demands of the Kashmiri people into consideration. It was the right of Kashmiris to high offices in education, the bureaucracy and government; and the availability of medical and educational facilities in Jammu, Kashmir and Ladakh. It was the preservation of literatures and and historical artifacts that defined an important aspect of “Kashmiriyat.”

The formation of the Constituent Assembly of J & K—to institutionalize the Constitution of the State in 1951—was an enormous leap toward the process of democratization. It was the fundamental right of both women and men to free education up to the university level. It was, constitutionally, equal opportunities afforded to both sexes in the workplace. It was the nurturing of contact in social, political and intellectual ideologies and institutions. It was pride in a cultural identity created from multiple perspectives.

Trust cannot be won and unity cannot be maintained by the display of national chauvinism and erosion of Kashmiriyat.

Nyla Ali Khan is a faculty member at Rose State College, a member of the Harvard-based Scholars Strategy Network, and granddaughter of Sheikh Mohammad Abdullah.