The new Article 370 with just one clause is no longer a special provision, it simply applies the whole of the Constitution to J&K.
I have written often on Jammu and Kashmir but today is different. J&K is no longer the same J&K. It is no longer a state. It has been dismembered. There are now two Union Territories — Ladakh and Jammu & Kashmir. Never before under the Constitution of India has a state been reduced to a Union Territory. On August 5 and 6, 2019, the government succeeded in winning Parliament’s approval for three things:
1. Repeal and substitution of Article 370: Article 370 was replaced by invoking clause (1) of Article 370 and amending clause (3) of Article 370. Whether it was a fatal legal error or a over-clever legal stratagem, only time and the courts can tell. Mortals like us can only describe it as a constitutional manoeuvre worthy of the well-known contortionist Sofie Dossi. The new Article 370 with just one clause is no longer a special provision, it simply applies the whole of the Constitution to J&K.
2. Obtaining the views of Parliament on the proposal to dismember the state of Jammu and Kashmir and create two Union Territories: The right to express views had been vested in the Constituent Assembly that had drafted the J&K Constitution. Miraculously, in one stroke, that Constituent Assembly became the Legislative Assembly of J&K and then became Parliament! So, Parliament was passing the Resolution after obtaining the views of Parliament. I suppose there is a metaphysical principle here that is beyond the comprehension of mortals.
3. Reorganising the state of Jammu and Kashmir and creating two Union Territories: The Jammu & Kashmir (Reorganisation) Bill, 2019, pretended to follow past precedents that had created two states out of one, except that the Bill created two Union Territories out of one state. Naturally, the Treasury Benches did not seem to mind; what came as a surprise was that regional parties that are ruling states — AIADMK, BJD, JD(U), TRS, AAP and YSRCP — did not find anything amiss, and voted in favour. The TMC walked out.
A dangerous precedent
If the precedent is followed, it is only a matter of time before Darjeeling will be carved out as a Union Territory out of West Bengal. The routine will be to ask the state Assembly to “express its views” or impose President’s rule and dissolve the Assembly. Other targets that spring to mind are Bastar district, KBK (Kalahandi-Bolangir-Koraput) districts of Odisha, hill districts of Manipur and Bodoland in Assam.
The more important issues are not the legal questions but the political questions. Before or during the exercise that culminated on August 6, the government did not consult the Legislative Assembly of J&K before the Assembly was dissolved on November 22, 2018. The government did not consult the mainstream political parties or their leaders, four of whom were former chief ministers. The government did not consult the Hurriyat Conference because the Modi government has refused to recognise them or talk to them. Needless to say, the government did not seek the opinion of the people, not even through interlocutors.
The government justified its action as fulfilling the BJP’s manifesto promise. That is only partly true. Repeal of Article 370 was indeed a promise of the BJP but, certainly, the BJP did not promise to dismember J&K and create two Union Territories. Even if Ladakh had to be carved out as a Union Territory, the residual state of Jammu & Kashmir could have remained a state. To a pointed question why this was not done, there was no answer.
People ignored, but will prevail
The success or failure of the government’s extraordinary actions will be decided by the little over 7 million people of the Kashmir Valley — not by the thousands of troops deployed by the government. How will the people of the Valley react to the actions of the government?
– The repeal of Article 370 will be regarded as a breach of a constitutional guarantee as well as a breach of promise made by Jawaharlal Nehru, Sardar Vallabhbhai Patel (assisted by N Gopalaswami Ayyangar and V P Menon), Babasaheb Ambedkar and the other makers of the Constitution.
– The people will also regard the actions as a repudiation of A B Vajpayee’s famous statement that a solution to the Kashmir issue will be found within insaniyat, jamhooriyat and Kashmiriyat.
– The carving out of Ladakh as a Union Territory (Leh wanted it, Kargil opposed it) will be regarded as an attempt to divide the people of J&K on religious lines.
– The creation of a Union Territory of Jammu & Kashmir will be regarded as an attempt to humiliate the people of the Valley and diminish their political, economic and legislative rights.
What is clear to me is that in the eyes of the BJP the Kashmir Valley is just a piece of real estate and not the seven million citizens. In the BJP’s eyes, the history, language, culture, religion and struggle of the Kashmiris are irrelevant. There are thousands of Kashmiris who, while opposed to violence and secession, had resorted to dissidence or throwing stones. They stood in one column to demand more autonomy. On the next column were the militants and young recruits who took the gun. The most catastrophic consequence will be — god forbid — if the thousands in the first column move to the second. The BJP will realise that the price of real estate is not cheap.