Article 35A: Abrogating toxic law only way to normalise Kashmir; how long should India pay for Nehru's mistakes?

Jawaharlal Nehru was a great man. But he was also a short-sighted politician. More than 50 years after his death, the Indian state is still paying a heavy price for its first prime minister’s myopia on Kashmir. It is not enough for leaders to be virtuous. They must also be visionary. Sadly, Nehru was not.

He was admittedly handed a complicated script by Sheikh Abdullah who could never get over his ambition of ruling over an ‘independent’ Valley instead of trying to be the leader of Jammu and Kashmir (read author Sandeep Bamzai’s essay in Observer Research Foundation here ) but it is the part of a prime minister’s job to deal with complications without losing the sight of the big picture.

If Kashmir is now a festering sore on India’s polity threatening to become gangrenous, part of the blame must lie with Nehru who either failed to comprehend the complexity of the issue or was too consumed by ‘Partition guilt’ and an insecurity over India’s (and his) image before the world to take hard-nosed decisions.

He kept Sardar Vallabhbhai Patel out of the negotiations and engaged the task to Gopalaswami Ayyangar, a minister without portfolio, who proved no match for Sheikh Abdullah’s guile. Nehru’s sidelining of Patel (a big critic of Sheikh Abdullah) on Kashmir has been chronicled, among others, by Major General Sheru Thapliyal (Retd).

In his essay ‘Article 370: The Untold Story’ for Indian Defence Review, Major General Thapliyal, PhD, refers to the records kept by V Shankar, IAS, who served as the personal secretary to Patel, to write that “it is clear from these records that Nehru finalised the draft of Article 370 along with Sheikh Abdullah without even informing Patel. Thereafter it fell to Ayyangar to get the draft passed in the Constituent Assembly discussions. The proposal was torn to pieces…”

Nehru, who was abroad at that time, ironically requested Patel whom he had excluded from the drafting, “to get the Article 370 approved.” It is the strength of Patel’s character and moral fiber that despite his misgivings about the draft, “he managed to convince the members of Constituent Assembly and Congress Party Executive. But to V Shankar, he said: “Jawaharlal Royega” (Jawaharlal will regret his decision).

Hindol Sengupta, who has authored eight books including a latest on Sardar Patel called The Man Who Saved India , writes that Patel did manage to “convince” the party “but remained sceptical of Abdullah who questioned even the right of the Indian Parliament to consider it. He told Ayyangar, ‘Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people. Of course, he owes no duty to India or to the Indian government, or even on a personal basis to you and the Prime Minister (Nehru) who have gone all out to accommodate him’.”

BR Ambedkar, incidentally, had refused to draft it. His words to Sheikh Abdullah are still relevant : “You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India. But the Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal would be a treacherous thing against the interests of India, and I, as the law minister of India, will never do it.”

With Patel’s death, Sheikh Abdullah’s job became easier.

Makkhan Lal, Distinguished Fellow, VIF, writes in his essay Kashmir, Nehru’s Idealism and Article 370 , “Sardar Patel’s death removed whatever restrain was there on Pandit Nehru’s idea of dealing with the issue of Kashmir. No longer was there any friend or colleague within the party or in the Cabinet who could advise Nehru’s against recklessness… In the form of Article 370, Kashmir was granted special status and now with the Nehru-Abdullah Pact, what was merely provisional and very transitory, became permanent. In a way, Abdullah was granted virtually an independent state within India.”

It is in this context that we must place the debate for abrogation of Article 35A (derived from Article 370) that has long been denied space in public discourse. The debate has been renewed over filing of writ petitions by We the Citizens, an NGO, challenging the validity of both Article 35A and Article 370.

The petitioners challenge the Constitutionality of the Articles and point out that the Indian Constitution, despite the involvement of four Kashmiri representatives in its drafting, has no mention of any special status. The petitioners say that Article 370 was a “temporary provision” that was exploited to bring a permanently discriminatory amendment (Article 35A), going against the “very spirit of oneness of India”. It created a “class within a class of Indian citizens” and violates a bunch of fundamental rights under Articles 14, 19 and 21 of the Constitution.

The petitioners have also challenged the range and scope of Presidential powers on the back of which Nehru was able to bring the contentious legislation through the backdoor. It needs be mentioned here that while Article 370 was preceded by discussions, negotiation and was shaped by leaders’ hubris and circumstances (both external and internal), Nehru incorporated the retrogressive, primordial, chauvinistic and gender discriminatory Article 35A through an act of illegality by bypassing the Parliament, ostensibly out of fear that it won’t hold muster before lawmakers.

While enacting the provision through a Presidential Order in 1954, President Rajendra Prasad was acting at the Nehru Cabinet’s behest. In violation of Article 368 of Indian Constitution, the Parliament was never consulted on this crucial piece of legislation that distorts Indian state’s relationship with its citizens and is also a challenge to its sovereignty.

As Raghav Pandey writes in Firstpost , “The process under Article 368 involves the Parliament and in certain cases, even the state legislatures, to carry out any amendment to the Constitution… The Parliament was thereby totally alienated in the process… Under the scheme of our Constitution, the President is the head of the executive and has very little legislative role, except under Article 123. Therefore, the Presidential Order of 1954 is also a violation of Article 368 of the Constitution.”

Article 35A builds on the ‘special status’ insurance provided by Article 370. As Krishnadas Rajagopal writes in The Hindu , “Article 35A gives the Jammu and Kashmir State Legislature a carte blanche to decide the ‘permanent residents’ of the State and grant them special rights and privileges in State public sector jobs, acquisition of property within the State, scholarships and other public aid and welfare programmes.” Not just that. The provision makes the state legislature immune from legal challenges on grounds of “violating the Indian Constitution or any other law of the land.”

It is a sad commentary on the political process of our times that 54 years after the death of Nehru, we are still unable to even initiate a debate over one of his biggest mistakes. We would rather bury our heads in the sand and choose internal hemorrhage and slow death than tackle the illness. In no other country such a blatantly discriminatory, unequal law that lies at the heart of Kashmir’s alienation from India, prevents its normalisation and creates divisions within the state will be tolerated.

Insurgency movements are not unheard of among modern nation-states. The separatist movement in Kashmir has its origins in the two-nation theory that lies behind the creation of Pakistan and continues to drive Pakistan’s security and foreign policy. It is based on a premise that religion determines nationality and political affiliation.

Nation-states that face similar ethno-religious challenges to its sovereignty make some accommodations in power-sharing (through the ‘autonomous’ route) but also try to bring about gradual systemic, demographic and psychographic changes. These are part of the rules of statecraft because no nation-state will tolerate a challenge to its sovereignty especially when insurgency movements within its soil are fueled by external machinations from an enemy state.

Besides, a harmonious spread of ethnicities across the map of a multiverse, multiethnic, heterogenous nation can only work to its advantage by not only precluding the creation of pockets where ‘otherization’ may take shape and result in complications but also increase trade and investment resulting in greater employment opportunities and lead to uniform and steady development.

Pakistan, for instance, has tried to take the edge off Balochistan insurgency movement by settling “four million people in various parts of Balochistan in the past three decades”. China, which faces a problem in Xinjiang province where the Uighur minority has greater religious and cultural links with Turkic Muslims in Central Asia than Han Chinese, has tried to implement a similar tactic.

Trouble is, the Valley-based parties and self-declared Kashmiri voices have indulged in such blatant and constant fear-mongering ( see here ) for decades that even starting a debate over the abrogation of the toxic legislations has become impossible.

Before the Supreme Court adjourned the hearing of the petitions till 27 August, Kashmir went into a lockdown as the two major political parties rushed in to deliver warnings against the abrogation and its leaders ironically found themselves in the same side as that of the separatists.

As Major General (Retd) Harsha Kakkar writes in Daily O , “The reality is that the Valley-based parties are afraid of losing their support base, because for years they have drilled into the population the thought of demographic change, hence they cannot back down now, though evidence points to the opposite. In addition, there is a latent fear that the BJP would soon become a force in the Valley, eroding their power.”

The reality must be acknowledged. The fear-mongering against abrogation of the Articles have been so sustained and deep that there would be huge initial resistance. This is where the leadership must show courage and patience. The Indian state can’t be held perpetually at ransom by being constantly fed a warning of “consequences and ramifications”. It must show resolve to change the discourse and slowly bring about an atmosphere conducive for rational discussion.