The charade around Article 370 by Congress and the regional political parties of Kashmir has been terribly marred with inconsistency and opportunism and lack of understanding the groundswell. The rightwing BJP, on the other hand, remained focused and steadfast in its agenda of burying the Article under the debris of erosions it was subjected to in the last 70 years.
It was quite strange and bizarre to watch former senior Congress leader and renowned lawyer Kapil Sibal arguing for almost 16 hours against the abrogation of Article 370 by the Narendra Modi government. Bizarre because Article 370 was reduced almost to a numerical figure in the statute book by the Congress governments at the Centre through presidential orders and political accords with the National Conference.
The travesty is that National Conference had been the immediate beneficiary of the erosions to the Article 370. Ironically, both the Congress and the National Conference claimed to be the guardians of 370.
Whether Article 370 was, in any manner, beneficial to the people of Jammu and Kashmir, is debatable. But the dichotomy is that the National Conference and the Congress in New Delhi gained from the erosion as well as from the proprietorship of Article 370.
The gains were illegitimate. National Conference was conferred with illicit power through the infamous accords and agreements which it had with the Congress from time to time.
Whether it was the so-called Delhi Agreement of 1952 between Jawaharlal Nehru and Sheikh Muhammad Abdullah or the IndiraAbdullah Accord of 1975, famously called the BeighParthasarathy Accord or the Rajiv-Farooq accord of 1986, the outcome was wresting power in the National Conference leadership illegitimately because it was transfer of power without going for the elections.
Out of power, the National Conference would swear by the sanctity of Article 370 and pledge to defend it at any cost. The politics of 370 was so pervasive and powerful that it became a part of the collective thinking of Kashmiris.
People tend to believe that Article 370 was the only instrument for their overall emancipation and well-being. In other words, they believed that a Kashmiri was a Kashmiri because of Article 370. The National Conference fought every election, Assembly or Parliament, on the pledge of protecting Article 370.
But the established truth is that the NC leadership facilitated erosions to the Article to the extent that it remained just a numeric in the statute book. All the agreements and accords between the Congress and the National Conference rendered Article 370 shallow. The spirit and essence of Article 370 was absolute power to the ruling elite.
The historical events give us a fair idea about the intentions behind the enactment of Article 370 in the Constitution. On 26 October 1947, Maharaja Hari Singh, the last ruler of Jammu & Kashmir, signed the Instrument of Accession, acceding to the Dominion of India.
The Maharaja agreed to allow Parliament to govern three subjects and limited the Union’s powers to foreign affairs, defence and communications. What were the other subjects left out of the jurisdiction of Parliament?
The three subjects of foreign affairs, defence and communication, in the real sense, are about responsibilities of the state—responsibilities of territorial integrity, security of the citizens and welfare. The rulers of Jammu and Kashmir very smartly put the onus of protecting the territory, security and welfare of its people on New-Delhi.
Thus the rulers of Jammu and Kashmir would enjoy absolute power without many responsibilities. That was the spirit behind the incorporation of Article 370 in the constitutional scheme.
Now see, the fundamental rights were extended to the people of Jammu and Kashmir under the Delhi Agreement of 1952. Imagine, the people of Jammu and Kashmir had no fundamental rights for more than five years after the accession with the Dominion of India.
The Delhi Agreement of 1952 also extended provisions of citizenship, trade and commerce, union elections, and legislative powers to Jammu and Kashmir. The Indira-Abdullah accord of 1975 allowed the latter to be in power after 22 years, now as Chief Minister. Sheikh was arrested in 1953 on charges of sedition when he was Prime Minister of Jammu and Kashmir.
His lieutenant Mirza Afzal Beg formed the Plebiscite Front on 9 August 1955, demanding a plebiscite to decide the accession of the state and the unconditional release of Abdullah. For 22 years, Abdullah’s National Conference remained non-functional. The cadre of National Conference amalgamated in Plebiscite Front, demanding plebiscite on the accession.
After the 1971 war, which ended with the dismemberment of Pakistan and the formation of Bangladesh, the NC leadership and the Congress government at the Centre entered into a dialogue, which ultimately resulted in ending the “political wilderness” of the former, as was said by Abdullah’s lieutenant Mirza Afzal Beigh.
During those 22 years, the Congress government at the Centre effected the dilution of Article 370 for more than 25 presidential orders. The then Prime Minister Pandit Jawaharlal Nehru, on 27 November 1963 told Parliament that Article 370 had been eroded and the process of gradual erosion was going on.
A year later, on 4 December 1964, the then Home Minister Gulzari Lal Nanda again informed Parliament that Article 370 was a tunnel to take the Constitution of India to Jammu and Kashmir. He further said that in the end, only the shell would remain there and it would be bereft of its contents, and it would hardly make any difference whether it was kept or not.
The double whammy was, the agreements so reached between the Congress and the National Conference led to the extension of some constitutional provisions of the Indian Constitution to the state of Jammu and Kashmir which were largely in the interest of the people of the erstwhile state but a perception was created that it was a curse because each agreement somehow appropriated the powers of the ruler.
So, in erosion of Article 370, lies the empowerment of the people of Jammu and Kashmir. And what an irony that the Congress, rather than taking ownership of the amendments that vested powers in the people, sided with the ruling elite of Kashmir against the revocation.
The Supreme Court heard the argument for 60 hours and senior Congress leader Kapil Sibal argued for more than 16 hours against the decision of revocation of Article 370. The Congress, as such, seems to be lost. While referring to the two regional forces of Kashmir—the National Conference (NC) and People’s Democratic Party or the PDP—it was rightly observed that both survived on each other’s faults.
The BJP, despite its ideological commitment, would not have been able to revoke Article 370 had Congress governments not eroded and rendered it almost redundant. But influenced greatly by the Left, Congress couldn’t take a position and claim the credit of rendering Article 370 useless.
Looks like, ambiguity is the trademark of the Congress. In Parliament too, Congress was a divided house in its response to the twin resolutions on Jammu and Kashmir on 5 and 6 August 2019. The appropriate response on behalf of the party could have been to refer to the records of Parliament itself and claim credit.
The public opinion post the 14 February 2019 Pulwama suicide attack was largely in favour of the revocation of Article 370. And by taking that stand, Congress would have opposed the bifurcation of Jammu and Kashmir into two union territories, vociferously and perhaps decisively.
The bifurcation of Jammu & Kashmir state into two union territories of Jammu & Kashmir and Ladakh has genuinely invited criticism from many quarters, including the Supreme Court itself.
Congress just lost the game to its stupidity. The tragedy with the contemporary Congress is that it has no roadmap. It is a victim of illusions and delusions at the mercy of Left leaning ideologues.
As for the political elites of Kashmir, give them a slight hint of a future alliance for power-sharing, provided they agree to suspend the fundamental rights in the UT, and they would readily agree.
Bashir Assad is a senior journalist and Editor-in-Chief of the weekly Kashmir Central. He has written extensively on Kashmir dynamics, radicalization and politics. He has authored three books—K file: The Conspiracy of Silence; Kashmir Beyond Article 370; Kashmir: The War of Narratives.