While arguing against the de-facto abrogation of Article 370 before the Constitution Bench of the Supreme Court, various senior advocates have brought out many important and critical aspects of the political history of Jammu and Kashmir, including events and processes. The constitutional provisions are a result of the political context, which is always devoid of binaries. J&K’s relationship with the Centre and the resultant constitutional provisions are a clear manifestation of that. Some of the assertions made by the lawyers require elaborate substantiation to get the right nuance and correctly correlate to the events in question.
First, senior advocate Gopal Subramanium took the bench through the constitutional orders of 1950, 1952, and 1954 and added that he was trying to “show the court the extraordinary goodwill that existed between India and J&K while framing the J&K Constitution and how it was expressed.” The 75-member J&K Constituent Assembly (CA) was convened in Srinagar on October 31, 1951. The J&K CA sat for 56 days over a five-year period and adopted the Jammu and Kashmir Constitution on November 17, 1956, and it came into effect on January 26, 1957.
The fact is, when the J&K CA finished its task, the very person who had provided popular legitimacy to the Instrument of Accession of J&K with India had been imprisoned by Delhi. Sheikh Abdullah had been arrested on August 9, 1953, by the government of Jawaharlal Nehru, who had been his biggest supporter. When the CA was concluding its task, the imprisoned Sheikh Abdullah initiated correspondence with G M Sadiq, who was the president of the CA, from August 1956 to October 1956 expressing concerns over the whole process and questioned its legitimacy as he was “unconstitutionally and illegally removed from premiership and simultaneously arrested, and detained.”
The correspondence between the two former colleagues point to the vexatious nature of the prevailing political landscape in the 1950s. Sadiq defended the work of the CA and later, it was under Sadiq’s watch, when he was heading the J&K government from 1964 to 1971, that most of the dilution of Article 370 took place. During his tenure, for instance, in March 1965, the nomenclature of ‘Sadr-e-Riyasat’ of the State of Jammu & Kashmir was changed to Governor of J&K, and the ‘Wazir-e-Azam’ became Chief Minister.
Second, during the hearing, Chief Justice of India D Y Chandrachud highlighted the land reforms in J&K. It is a fact that the J&K agrarian and land reforms in both Kashmir as well as Jammu provinces didn’t have any parallel in India as orchards as well as agricultural land beyond a particular ceiling were given to the tillers without compensation to the landowners. This action was inspired by the ‘Naya Kashmir’ document, a political document drafted in 1944 under the tutelage of senior communist leaders in Srinagar, such as the Lahore-born B P L Bedi, which the National Conference incorporated.
However, this is not to infer that Sheikh Abdullah was a communist, as both the left and Sheikh merely tried to use each other to achieve their respective goals for a limited timeframe. In Kashmir Valley, Kashmiri Muslims were the major beneficiaries whereas in Jammu, the beneficiaries were Dalits, who made up 18% of Jammu’s Hindu population. Sheikh Abdullah was able to carry out these revolutionary acts, like land to the tiller, through an executive order – Big Landed Estates Abolition Act, 1950. Only in a pre-1953 context could such reforms have been caried out as under the Indian Constitution, the right to property was a fundamental right till 1967.
Third, while there is little doubt that the National Conference (NC) was the most popular entity in J&K, particularly in the Kashmir Valley and parts of Jammu, the September–October 1951 electoral process in J&K, which led to the creation of the J&K CA, was in a context of little separation between the party in power and J&K’s administrative apparatus. In Doda district, for instance, the district administrator was also a party functionary. A Soviet-style administration prevailed where there was no difference between the ruling party and the bureaucracy. This had a deleterious impact on long-term governance in J&K as the ruling political elite instrumentalised the bureaucracy in their favour, particularly during the electoral exercise. For instance, in many parts of J&K, the nomination papers of candidates for the Assembly as well as parliamentary elections were rejected on flimsy grounds, and this practice was institutionalised in J&K in the 1950s and 1960s.
Four, strictly speaking, when the abrogation of Article 370 on August 5, 2019, is being litigated, one cannot ignore the structural reasons that has resulted in the intense polarisation over the Article 370 issue both within various regions of J&K and between the Kashmir Valley and the rest of the country. The 1953 arrest of Sheikh Abdullah was also a result of this structural reality. The political elite in New Delhi and J&K failed to address the gap between Kashmir Valley and the rest of country in time, resulting in miscommunication and misinterpretation of statements and events on either side.
For decades, Article 370 had become both the cause and effect of polarisation. The fierce opposition to Article 370, or any special provision for J&K, within a part of J&K, as opposed to its support in the Kashmir Valley, is one of the potent factors that has created a strong constituency in the country that is presently emotionally in favour of the abrogation of Article 370. To bring the country and the various regions of J&K on the same page, a more in-depth study and holistic approach is required that could institutionally address the structural issues in question.
The ongoing litigation in the Supreme Court has shone light on a past which was stormy and far from linear. With the advantage of hindsight, one could honestly study and embrace the past for a new beginning, to create harmony both within J&K and also in J&K’s relationship with New Delhi. Only then will one have done justice to the landmark and historic decision of Muslim-majority J&K’s popular leadership to accede to a secular India, which was ably reciprocated by India’s political leadership under Nehru, defying the divisive two-nation theory and the communal conflagration of the times.
(The writer previously managed a variety of counterterrorism projects at the UN)