20 August 2019
Why Article 370 had to go
Source: By Abhinav Kumar: The Indian Express
It is not always that a writer has to quickly deal with the practical consequences of what he wrote about recently. My last article (‘A New Deal for Kashmir,’ July 5), published in these pages, looked at the difficult choices India faced in Kashmir and suggested that we should have a wider debate about repealing Article 370 as one of the options. Predictably, it caused a furore amongst a section of our intelligentsia for whom Article 370 was more an article of faith than anything else.
Around midnight on August 4, when we received our orders to go on high alert and prepare for some important announcement in Parliament the next day, little did I realise that what I had advocated for debate, had actually been decided. Starting midnight, we began to go into lockdown mode. The communication blackout was total. It would be a few days before one would get access to a mobile phone — voice only, no data. And a few more days before one had limited access to internet at speeds that brought back memories of the dial-up modem era.
As one watched the home minister stand up to speak in Parliament to announce the intended changes in the relationship of the state of J&K with the Union of India, one realised that one was witness to something of profound historical significance. A decision would create immediate professional challenges for all of us serving in positions of responsibility in Kashmir. In the last two weeks of July, all of us had expected that some important decision about J&K was going to be taken. However, the direction and scope of the decision came as a complete surprise.
The first week has seen a whirlwind of activity. The NSA himself arrived to take charge of the situation. He quickly spelt out the expectations of the Government of India. Our first task was to ensure that the prohibitory orders were effectively enforced to ensure that there was no widespread unrest or violence. We were asked to mitigate the worst effects of the lockdown for those citizens in genuine need, such as for medical emergencies. It is too early to comment on how well these directions have been implemented on the ground, but, so far, so good.
As contact with the rest of the world was reestablished, one began to engage with the public response to this decision. The usual suspects on the Left have gone apoplectic for the usual reasons. Some self-styled nationalists have welcomed this decision with a most offensive and inappropriate display of bigotry and hate-filled language. They deserve the condemnation of all right-thinking Indians and where possible should be booked for inciting hatred and trying to inflame an already explosive situation. One group of critics shows a poor understanding of our national interest and the other is patently oblivious to our civilisational values that celebrate diversity and tolerance. Broadly speaking, the criticism of the decision to alter 370 and scrap 35 A, takes four main approaches.
First, there is the Constitutional argument that there is serious legal infirmity in the manner in which this was done. Second, the democratic argument that the will of the people of J&K was not ascertained. Third, the appeal to the historical argument that even if these Articles can be legally modified, the Constitutional guarantees offered by Nehru at the time of accession of Kashmir to India must be honoured in perpetuity. The fourth is the moral argument that the harsh security crackdown in Kashmir is unjust and immoral. This kind of curtailment of civil liberties and communications is simply unacceptable in a modern democracy. Each of these arguments deserves serious analysis.
The legal argument is already before the Supreme Court. I would like to see the legal logic that will persuade the SC that Article 370 is somehow part of the basic structure of the Constitution, and therefore, cannot be altered in any way. With regard to the specific wording of 370, it would be interesting to see if the Court rules that amongst all the articles of the Constitution, 370 alone has the privilege of choosing the mechanism of its own repeal. Article 368 is for commoners of the Constitution. Article 370 is some kind of royalty. Is the will of an extinct constituent assembly of J&K somehow expected to prevail in perpetuity over the will of Parliament? I am sure these issues will come up before the Court.
Coming to the democratic argument, the changes announced by the home minister have been passed by both houses of Parliament and have received the assent of the President of India. They were enacted by a government which has just won a sweeping majority in a general election where Kashmir was a central issue. Should the purported wishes of the Valley somehow override the wishes of the people of India and the wishes of the people of Jammu and Ladakh? This is an extraordinary claim of democratic entitlement.
Coming to the historical argument — there is plenty of evidence to question that the conventional wisdom about these guarantees is misplaced. What was the original intent of Nehru behind offering these guarantees over the objections of Patel and Ambedkar? Did he genuinely want to leave an opening for Kashmir to secede from India? Or did he see these guarantees as a necessary stopgap measure to eventually secure Kashmir’s complete assimilation with India? Were these guarantees a one-way ticket to flirt with azaadi? Or were they a bargain that also required Kashmir to offer something in return? It is hard to believe that Nehru intended Article 370 to be some kind of a blank cheque with no expiry date. And people conveniently forget that our neighbour has been shuffling the legal status of PoK like a deck of cards.
The last argument, namely, the appeal to morality and civil liberties, comes in the context of a land that has seen 30 years of terrorism and ethnic cleansing. The concerns of public order and public safety are paramount. Abrogating these articles was a difficult decision, bound to have a violent reaction in the valley. Trying to pre-empt large-scale violence is not immoral, rather, it is the duty of a responsible government. The restrictions in place are quite sensitive to ground realities. As and when the situation improves, they will be eased.
We simply cannot allow jihadis to have free run to incite mob violence. It is entirely understandable that our civil society has concerns about the present curbs on civil liberties. They are harsh but not unprecedented. It remains the primary concern of all of us enforcing these restrictions to ensure that they are lifted as early as possible with minimal violence and loss of life. Kashmiris too have an obligation to express their sentiments about these decisions without letting their protests be hijacked by violent unrest or terrorism. The fact that Friday prayers, Eid and Independence Day have passed off peacefully is extremely encouraging and I am sure that we will see a calibrated lifting of restrictions and minimisation of inconveniences faced by all Indians in the Kashmir valley.
It is, of course, an extremely challenging time to serve in Kashmir. I, for one, regard it as an extraordinary privilege and honour to be a part of this historical exercise. While we cannot satisfy all the prophets of doom and gloom, we are sure that an overwhelming majority of the citizens of India appreciate the challenges ahead and we have their confidence and support. There was never a better moment to serve India in uniform.