The 50 shades of grey in J&K

Manish Tewari
MP and former union minister

By Balkanising the state of Jammu and Kashmir and reconfiguring its constitutional relationship with the Indian Union, the NDA/BJP government has entered into a grey area whose shades will challenge the resilience of the Indian state.

The Constitutional Grey: Beyond ignoring the letter and spirit of Article 3 and the repeal of Article 370, there are other constitutional issues that have also been disregarded. Before its accession, J&K was governed in terms of The Jammu & Kashmir Constitution Act promulgated in 1939. This arrangement continued until the state adopted its own Constitution. Para 7 of the Instrument of Accession signed by Maharaja Hari Singh on October 26, 1947 stated, “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.” 

Though other princely states also signed similar covenants, given the prevailing state of hostilities with Pakistan, the situation in J&K was fraught with complexity. That is why a special mechanism was adopted by the Constituent Assembly on October 17, 1949, in the form of Article 370 to cement the relationship between the Indian Union and Jammu & Kashmir to move it beyond the Instrument of Accession.

Article 370 became all the more germane, for, on November 26, 1949, Rajpramukhs of all the other Princely States that had acceded to the Union of India signed and adopted the Constitution in its entirety, except the Maharaja of Jammu and Kashmir. 

To make J&K’s integration with India permanent, an elected Constituent Assembly was convened on October 31, 1951. It remained in session till November 17, 1956 wherein it adopted a Constitution that came into force on November 26, 1957. Article 3 of the said Constitution integrated the state inalienably into India by stating that J&K shall be an integral part of India. 

Now, with the government having bifurcated the state into two, what happens to the Constitution of the undivided state of J&K? For, no one can abrogate that Constitution and it has no self-destruct provision in its 12 Parts and 147 Articles. Even the Parliament cannot rescind it, for it has been framed by an elected Constituent Assembly much like the Indian Constitution itself. If one was to argue that with the bifurcation, the Constitution has become a dead letter, it can equally be argued that then the relationship between India and J&K is now back to the terms of the Instrument of Accession, dehors the constitutional sophistry of 2019. 

The Political Grey: Going all the way back to 1947, there is a sizeable section of people in Kashmir which has rooted for autonomy, self-rule, independence and merger with Pakistan. All these four strains are present in the body politic of Kashmir. They are intertwined and overlap and, therefore, the slogan of azadi means different things to different people. However, there are also the standard-bearers of the Indian Union in the vale of Kashmir, namely the National Conference and the Indian National Congress, stretching back, again, to Independence. Over a period of time, various other political outfits, like the People’s Democratic Party (PDP), founded in 1999, also joined this endeavour.

After the last round of intense militant activity in the mid-90s that saw the killings of leaders and cadres of mainstream political parties, they still persevered and between 1996 and 2019, over four Assembly elections and seven Parliament elections reaffirmed their faith in the Indian democratic system. The current bifurcation has completely cut the legs out from under the regional parties, namely the NC and the PDP. What was considered to be the political mainstream in Kashmir has effectively disappeared. It is ironical that three former Chief Ministers of J&K — Farooq Abdullah, Omar Abdullah and Mehbooba Mufti, till recently an ally of the BJP — and their families are in incarceration. The repercussions of the negation of the political mainstream would be grave in the years to come

The Security Grey: It is a well-known security canon that if a militant movement has popular people’s support, it is near impossible to contain it, much less neutralise it. The most contemporary Counter-Insurgency Manual authored by General David Petraeus in 2006 and applied in Iraq and later Afghanistan is premised upon certain fundamental principles that go to the heart of COIN (counter-insurgency) operations. Simply translated, it means winning the hearts and minds of the people. If you fail to drive a wedge between the populace and the insurgent, the insurrectionary would win. In the long war against militancy in Punjab, the inflection point came when a popular government, even on a thin electoral base, was restored in 1992. Currently also, the government is negotiating to end the decades old insurgency with the Nagas underground. It is obtuseness to remove the political buffer between Delhi and Srinagar and administer Kashmir from New Delhi. 

The Strategic Grey: Pakistan is back in the game not only in Kashmir, but also the region. The US needs Pakistan ever more if the US-Taliban deal has to succeed. Moreover, the Iranian issue is back on the front-burner. Pakistan will have a role to play in the US scheme of things. Whatever militant capacity the US-Taliban deal would free up will all come to Kashmir. Then, there is always the ISIS to fill in the vacuum if the demobilised Afghan fighters are unwilling to become guns for the Pakistani deep state. The government needed to apply the healing touch, rather than alienate them at this juncture.

The International Grey: India’s whole case for the return of Pakistan-occupied Kashmir and the Northern Territories rests on the Instrument of Accession, an Article of the Jammu and Kashmir Constitution and the two resolutions of Parliament. Article 4 of the J&K Constitution states: “The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State.” The two resolutions of 1994 and 2012 state that the only unfinished business of Partition are those parts of J&K illegally occupied by Pakistan and ceded to China. With the dismemberment of the original state of J&K, that claim becomes a non sequitur. For, in both bilateral and multilateral negotiations, India would not be able to say that we are wanting control over the original state of J&K as acceded to India on October 27, 1947, by Maharaja Hari Singh, for that state no longer exists. This unravelling of J&K has weakened our case in the chanceries and conference rooms of the world.

That is why I told the Home Minister in the Lok Sabha on August 6 that between black and white, there are fifty shades of grey in Jammu & Kashmir.