Alternate ways of self-determination

  • How will a civilian government come from if people boycott elections?

“The provisions of Article 1 and of this Article shall apply in relation to that State.” This clause 1c of Article 370 needs, for sake of simplicity, to be recast: “The provisions of Article 1 [of the Constitution of India] and of this Article [370] shall apply in relation to that [Jammu and Kashmir] State.” Article 370 was/is not just one Article of the Constitution of India. It was/is a bunch of three Articles: 370; 1; and 238. Clause 1(a) of Article 370 states that “the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir.” And its clause 1c expressly applies Articles 1 and 370 to the State.

In actual fact, only one Article of the Constitution of India applied to the State of Jammu and Kashmir on 26 November 1949 when the Constitution of India was adopted; and Article 1 of this Constitution, which defines the territory of India, applied to the State only indirectly through Article 370. Other Articles of the Constitution of India, corresponding to Defence Subjects enumerated in the former Instrument of Accession, were applied to the State through Constitution (Application to Jammu and Kashmir) Order, 1950 issued by the President of India under Article 370.

Article 370 itself was envisaged by the framers of the Constitution to be a temporary provision; and was, therefore, titled in the Constitution as “Temporary, Transitional, and Special”. Also its clause (3) renders it temporary from within: “Notwithstanding anything in the foregoing provisions of this Article [370], the President [of India] may, by public notification declare that this Article [370] shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendations of the Constituent Assembly of the State [of Jammu and Kashmir] referred to in clause (2) shall be necessary before the President issues such a notification.”

Constituent Assembly for the State of Jammu and Kashmir was convened in September-October 1951. It dissolved itself on 17 November 1956 after adopting a provincial Constitution for Jammu and Kashmir. Subsequent to election-1957 provincial Legislative Assembly succeeded the Constituent Assembly. Around this point the constitutional relationship between the State of Jammu and Kashmir and India rested on contracts — Article 370 and Constitution (Application to Jammu and Kashmir) Order, 1954 (the Order had replaced Constitution Order, 1950). Since the dissolution of provincial Constituent Assembly in 1956 to 2017 the president of India issued 45 Constitution Amendment Orders to Constitution Order, 1954 although no Constituent Assembly existed in Jammu and Kashmir to furnish its concurrence to these presidential constitutional measures.

Now questions arise about what would happen to the constitutional relationship between India and the state of Jammu and Kashmir if, on the strength of a resolution of the provincial Legislative Assembly, the Jammu and Kashmir government recommends to the president of India to abrogate Article 370? Will the state merge with India or secede from it? The answer would depend on the content of the recommendation and resolution.

Article 370 itself was envisaged by the framers of the Constitution to be a temporary provision; and was, therefore, titled in the Constitution as “Temporary, Transitional, and Special”

Article 370 can be abrogated either in toto; or it can be abrogated with exceptions and modifications. If the Article 370 is abrogated with exceptions and modification, i.e., if its clause 1c is excepted and modified so as to keep Article 1 of the Constitution of India directly applicable to Jammu and Kashmir State and the rest of the Article 370 is abrogated, the State will become a part of India like its other constituent States. Consequently, all the other Articles of the Constitution of India will automatically and directly apply in their original form to the state. The state would be construed to have merged. This course of action is supported by India’s right wing groups collectively called the Sangh Parivar.

However, if Article 370 is abrogated in toto, Article 1 of the Constitution of India (as also other Articles which apply, with exceptions and modifications, under Article 370 through Constitution Order, 1954 and 46 amendments thereof) will get abrogated, and will, therefore, cease to apply. The non-application of Articles of the Constitution of India, especially its Article 1 which defines territory of India, will break the constitutional relationship between India and the state. The state would, in that case, be construed to have seceded. Jammu and Kashmir will become theoretically independent of India (and Pakistan). Such course of action on part of Jammu and Kashmir will invest the State Subjects (Permanent Residents) with power to renegotiate their constitutional relationship with Pakistan and India.

Actually the options of secession and merger for the State of Jammu and Kashmir were/are inbuilt in the Article 370. So long as Article 370 remains in place, and so long as parts of the State of Jammu and Kashmir State remain under Pakistani control, the whole former Princely Kashmir State will remain perpetually enveloped in political uncertainty. Should the state subjects desire change, a trial could be given to resolution on the floor of the provincial Legislative Assembly through elected political representatives. But the problems is those politicians who participate in elections, who are called “mainstream”, and who profess to be Indian nationalists, talk of strengthening this Article rather than abrogate it facilitate merger of the State with India.

On the other side of the political spectrum in Kashmir are the politicals called the “separatists”. They reject Indian nationalism. They claim to be the real representatives of the state subjects on whose behalf they profess to demand right to self-determination. They reject elections on the ground that it would amount to accepting the Constitution of India. Yet they would vehemently oppose any meddling with two of its provisions, 370 and 35A, knowing full well that these provisions are clearly to the advantage of State Subjects. It seems that they enjoy status quo just as do the politicals of the “mainstream” camp.

Election boycott serves at least two purposes to the establishment. One, it relieves the establishment of the compulsion of rigging elections, if it be presumed that the establishment really means to rig them. And it furnishes walkover to the “mainstream”. Imagine what the “separatists” would do if, after coming to power courtesy of boycott, the “mainstream” were to recommend abrogation of Article 370 and merger of the state with India; or, alternatively, they simply recommend abrogation of Article 35A which has prevented non-state subjects from settling in the State. Will then “separatists” take up weapons? No, because that has already been done.

Furthermore, the “separatist” camp’s election boycott reflects a stark contradiction when they demand that the Supreme Court should not hear the case challenging the constitutionality of Article 35A unless there is a civilian provincial government in place in the Jammu and Kashmir state to defend it. Where on earth will a civilian government come from if the people boycott elections? And absolute boycott by all state subjects, which in any case is an impossibility, will mean perpetual rule by governor, a representative of the establishment rather than of the state subjects. Who will defend 35A?

On the contrary, should the “separatists” participate in elections, win them and form provincial government, their voice would be heard on the assembly floor, in India, and in the world. They could defend Article 35A in the Supreme Court of India. Also they could deal with Article 370 as they saw fit. But if the establishment rigged elections against them, India would get thoroughly delegitimised in Jammu and Kashmir state. All the hard work that the establishment did in the state for the last three decades to regain legitimacy would be set to naught.

Now so far as fireworks organisations are concerned, their mere presence in Kashmir serves establishment’s interests inside India and on the international front. They project India as a victim of international terrorism sponsored by Pakistan. They tell citizens of India that Pakistan is bent upon breaking their country. Although Pakistan itself is a victim of terrorism, although Pakistan fought bloody battles against terrorists, the world considers Pakistan’s anti-terrorism stance as a double game, fighting anti-Pakistan terrorists on the one hand and sponsoring anti-India (and anti-Afghan) terrorists on the other. Pakistan has failed to wash its image of a terrorism sponsor despite losing thousands of its citizens and armed forces personnel to terrorism. Despite the fact that Pakistan is a party to the issue of Kashmir, its role in Kashmir is looked upon in negative terms – that of cross-LoC infiltration and cross-LoC shelling. India may (actually it does) indulge in greater intensity shelling across LoC, but then the tendency to rely on fireworks prompts people of India and the international community to look at things through establishment’s prism.

Rather than expending the precious lives of youth in the name of some highfalutin ideas, participating in elections to work on denfence of Article 35A and on abrogation of Article 370 would be a highly educative exercises, a better alternative to fireworks and to “separatist” rejectionism. An overwhelming majority of those people who insist that fireworks should continue prefer their own children to become doctors and engineers.