Root of trouble: Article 370

Dipping political fortunes amidst an economic downturn in the run-up to the 2014 general election and the fear of Narendra Modi galvanising the majority community with charges against the Congress Party coalition government of softness towards terrorists led to the jettisoning of considerations of votebank politics and the hanging of Afzal Guru.

Sixty-six years after Partition there’s still little recognition in the country that the problem of Kashmir is actually sustained by Article 370 of the Constitution, which accorded the erstwhile “princely state” of Kashmir a special status within the Indian Union. This article was based on the faulty premise of retaining for the state its territorial and demographic exclusivity, contravening all principles of federalism. It has kept the militancy oxygenated.

Getting rid of this mischievous provision in the Constitution — there’s nothing sacrosanct about it — will, once and for all, change the entire discourse about Kashmir. The mollycoddled Yasin Maliks and Ahmed Shah Geelanis will have the choice of abiding by the fait accompli, or availing of a one-way bus ticket to Pakistan-occupied Kashmir (PoK), where they can cry hoarse about Indian perfidy for all the good it will do to them. The complication is the wilful conflation of Article 370 with the interests generally of the Muslim community in India by political parties to milk electoral profit even though it drags out the Kashmir issue and hurts the nation.

It must be recalled that the offending article was only a transient political contrivance, an expedient device conjured up by Prime Minister Jawaharlal Nehru during the Constituent Assembly debates to bring the potentially dissonant politics of Sheikh Abdullah’s National Conference within the nation’s fold. It is not some holy covenant to keep Kashmir forever separate and should have been discarded as soon as its utility had ended, certainly by the time the second province-wide elections were held in 1956. Nation states adhere to undertakings only so long as their interests are served. All that Article 370 does is afford the permanently disaffected minority among the Kashmiri population legal and constitutional cover for their violent dissidence.

It is ironic that the ruling Congress Party, which did not flinch from violating the fundamental rights of citizens guaranteed by the Constitution during the Emergency in the 1970s, is in the forefront of preserving this article that offends the basic principles of federalism cementing the Indian Union for sentimental reasons — because Article 370 was a sort of a compact Nehru made with the land of his forebears. The lack of political and strategic foresight is such that the main Opposition, the Bharatiya Janata Party, instead of campaigning for the abrogation of this article, has been shouting about the delay in carrying out the death sentence, and now that Afzal Guru has been hanged, finds itself outflanked.

Courtesy Article 370, the belief that Kashmir is not like other states and is not a part of the Indian whole has grown apace with rising discontent, convincing the separatists about the righteousness of their cause. The special status of the state has prevented the social and economic integration of Jammu and Kashmir, with Indians from other states barred from legally purchasing property, establishing businesses, settling down there and obtaining voting rights. Cocooned in this way, many Kashmiris have a heightened sense of grievance against the Indian state, mistakenly believing they are sovereign. The sooner they are disabused of this foolish notion the better for everybody, and for peace in the region.

While New Delhi’s approach to Kashmir is trapped in a mush of minutiae regarding the United Nations resolutions, and confused ideas of legal and moral obligations — factors that are completely extraneous and irrelevant to assimilating Jammu and Kashmir into India — the Pakistan government has from the start exercised common sense. As early as 1953, when the issue of the status of the “Azad Kashmir Forces” came up, the then Army Chief, Gen. Ayub Khan, ordered these to be merged into the Pakistan Army. Other measures followed — reducing the government in Muzaffarabad to a paper Assembly, permitted to do no more than make appropriate noises propping up the fiction of “Azad Kashmir”.

There’s never going to be a plebiscite, so why persist with Article 370, which basically amounts to a standstill policy that only India hews to pending a UN-adjudicated process of self-determination? Indeed, there’s as much chance of Jammu and Kashmir being allowed to go to Pakistan as there is of Pakistan voluntarily merging their nation into the Indian motherland. That both New Delhi and Islamabad are reconciled to the division of Kashmir is evident from the Indian government’s astonishing reluctance to make claims on PoK and the Northern Areas. Islamabad, lately, has sought formalisation of the partition of Kashmir along the present lines, to wit President Pervez Musharraf’s 2006 plan for resolving the Kashmir dispute. The trouble is as long as there is a constitutional impediment such as Article 370, the cementing of the Line of Control (LoC) as an international border cannot proceed, nor normalisation of relations with Pakistan.

Voiding Article 370 should be the first order of business of the Indian state, a necessary step to bring closure to this dispute. It has to be followed up with a comprehensive resettlement policy that prioritises land grants to communities of retired soldiers in order to firm up continuous habitations in depth on the Indian side of the LoC. These armed communities, like the kibbutzes on Israel’s borders, meshed into the Army’s defence grid, will have vested interests in safeguarding their properties, consolidating the border and minimising cross-border infiltration. It should be part of an unapologetic national policy aimed at changing the demographic of the state in the manner Pakistan is changing the demographic profile of Gilgit-Baltistan in the Northern Areas, for instance, by encouraging Sunni settlers from the plains. Those opposing such a policy ought to recall world history — “self determination” has never been a factor in building a composite nation, and Kashmir is no exception.
[Published Feb 14, 2013 as “Article 370 must go” in the ‘Ásian Age’ at http://www.asianage.com/columnists/article-370-must-go-855%5D

About Bharat Karnad

Senior Fellow in National Security Studies at the Centre for Policy Research, New Delhi, he was Member of the (1st) National Security Advisory Board and the Nuclear Doctrine-drafting Group, and author, among other books of, 'Nuclear Weapons and Indian Security: The Realist Foundations of Strategy', 'India's Nuclear Policy' and most recently, 'Why India is Not a Great Power (Yet)'. Educated at the University of California (undergrad and grad), he was Visiting Scholar at Princeton University, University of Pennsylvania, the Shanghai Institutes of International Studies, and Henry L. Stimson Center, Washington, DC.
This entry was posted in Asian geopolitics, Central Asia, Geopolitics, Great Power imperatives, India's Pakistan Policy, Indian Politics, Internal Security, Pakistan, Pakistan military, South Asia, Terrorism. Bookmark the permalink.

13 Responses to Root of trouble: Article 370

  1. Shaurya says:

    To be fair to the BJP. They did have the repeal of article 370 in their 1998 manifesto, however dropped it to form the NDA. They need to grow some muscle back. BJP should never forget, how Dr Hegdewar lost his life.

    +1 for the Kibbbutzes like idea. Arun Shourie had written that every soldier who serves there should be given a few acres to settle in….

  2. krishnakanth says:

    Sir,
    Sir do you think we Indians really so Nationalistic to vote for a Nationalistic Government which keeps “National Interest” above their “Party’s” Interest,The answer is….This was lamented by Shri B.K.Nehru (cousin of Smt.Indira Gandhi and former Governor of Assam)regarding the issue of Bangladeshi Illegal Immigrants-This fact was acknowledged by Lt.Gen.S.K.Sinha PVSM (former Vice Chief Army Staff,Former Governor Assam,J&K).
    Sir Do you see Article 370 being abrogated in the near future or at least in the Distant future.

  3. RV says:

    Bharat, Article 370 is only one of the many effects, but not the cause for the “oxygenation” of Islamic terrorism. What can you say about a people who claim that capital punishment was given to Kasab and Afzal Guru as a deterrent to terrorism, but hang them with such secrecy that it has virtually transformed criminals and terrorists into martyrs in the eyes of their followers?

    If hanging is truly a deterrent to terrorism (AS IT SHOULD BE), the Indian authorities should have publicly executed these terrorists in the open giving at least a weeks advance notice to one and all to come and witness the event. Frankly, with the current state of affairs in India, how does one know that Kasab did not die of dengue and Afzal Guru is not currently having a few pegs of scotch with Hafeez Saeed (with whom the Indian Home Minister virtually gave a joint press conference)?

  4. satyaki says:

    Bharat Sir,

    Do you see a govt. in the near future resuming thermonuclear testing under these changed circumstances ? Or will INC refrain from it still ?

  5. Don’t agree with the Kibbbutzes like idea. But agree that the root of the trouble is the kind of constitutional arrangement that was done for the state of J&K. That has left identity crisis in JK and also lead to worst kind of communal and identity politics. Only wonder if Sardar Patel would have handled the situation differently. It is quite clear the J&K is not unique, every state in India has a different identity but the constitution makes sure that there is enough interaction between states to allow Idea of India to seep in where as JK has been denied that thanks to the kind of constitution and laws specially the State Subject laws they have which are a legacy from the time of the Maharaja and are inherently divisive and I might say even communal. Whether article 370 stays or not the Permanent Resident law is retrograde and creates hermit state like a North Korea in India this is in my view the root cause of the alienation of the youth and Identity issues with them in the valley. This has also lead to the state ending up being a socialist government job oriented state no capital from the rest of India can flow into JK with such residency laws they will not allow economic migration they cannot attract professionals and hence no industry.

    • I like your comment about J&K as a North Korea-like ‘hermit state’ within the Indian Union.

      • I only hope GOI does not make any such mistake in Nagaland during the peace talks. In my view Kashmir model is not a healthy model. Nation within a nation as we have seen in the valley only leads to more separatism. If we believe in the Idea of India and the constitutional guarantee for protection of all cultures, religions etc then there is no point in agreeing to anything outside the constitution no matter how much world (western) powers interfere because they have no sense of what India is about. Their sense of nationhood and nationalism is very different from our sense of nationalism. Our constitution fits will with the instinct of self preservation that every minor/major community in India may have, this is why people of Ladakh were able to adopt Indian-ness.
        For me someone like M J Akbar understands what India is about and we should keep faith in our founding principles. Insurgencies in various parts of our country are really painful and one wonders why these groups find their culture or identity under threat except for perhaps a result of bad governance, primitive infrastructure and outside interference.
        Lt. Col. H. Bhuban Singh(Retd) has in article come up with a 10 point prescription for tackling insurgency which I hope our political and military leadership takes seriously. Because in the end it is all about wining back our own people.
        http://classic.kanglaonline.com/index.php?template=kshow&kid=834&Idoc_Session=02e8bff175f2626479332639933c25b9

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