Short-sighted move, with dangerous consequences

In the backdrop of the massive troop deployment, house arrest of former chief ministers Omar Abdullah and Mehbooba Mufti, and BJP ally Sajjad Lone, and curfew-like conditions in the Valley, Union home minister Amit Shah’s move in the Rajya Sabha on Monday to do away with the special character of J&K under Article 370 of the Constitution, alongside the move to partition J&K state, carving out two Union territories instead, seems hubris-filled and invites foreboding.

The RSS-BJP’s underlying sentiment to create a single law to bind all Indian states, neglecting the history behind the formation of the Union of States that made post-1947 India possible, appears to rest on the ideological premise that Muslim-majority J&K cannot be permitted to enjoy special status in a “Hindu” country.

It ignores the history that it was a Hindu maharaja — Hari Singh — who did not wish to join so-called Hindu India in 1947, and was forced by a Pakistani tribal invasion to “accede” to independent India through an Instrument of Accession, rather than “merge” with it.

This instrument was no Muslim conspiracy but the insistence of a Hindu ruler, and was codified into law through Article 370, passed by the Constituent Assembly. The law now stands revoked in its essence, but the BJP and its supporters will do well to remember that the majority Muslim population of the maharaja’s erstwhile domains had scorned Jinnah’s invitation to join Muslim Pakistan and had chosen secular and democratic India instead.

It is this faith of the Kashmiri Muslim that stands shattered today and is unlikely to be repaired with any degree of confidence, no matter how Mr Shah’s measure may fare under judicial scrutiny.

When Article 370 goes — and its complementary provision Article 35A — the Instrument of Accession becomes legally and constitutionally extinct. On first principles, this means that J&K cannot, in the juridical sense, any longer be a part of India. In J&K, this can potentially give rise to all manner of political, social and emotional consequences of a wholly undesirable nature. To suppress these, New Delhi may have to act as a police state in perpetuity in respect of the Kashmir Valley, rather than a secular democracy even at the level of formal espousal.

With the Instrument of Accession denuded of constitutional sanction, there can be no residual legal significance left for the Indian term “Pakistan-occupied Kashmir” (PoK), to which India has so far laid a claim in law, including through a parliamentary resolution in 1994.

In real terms, even with Articles 370 and 35A gone, it is hard to see non-Kashmiri Indians buying property in the Valley. Even people from Jammu didn’t queue up outside the property registration offices in the Valley though they could have done so legally, being in the same state. Scrapping the provision that links J&K to India is historically short-sighted, with quite possibly dangerous consequences.