This article belongs to the debate » Casting Light on Kashmir
29 December 2022

“Tuhindi Article” (“The Articles Were Yours”)

Through what was described with war-time imageries of a “constitutional surgical strike” and a “constitutional siege”, in August 2019 a radical change was made to what innocuously appeared earlier in the Constitution of India as Article 370. It was understood popularly to be a basis for the extension of the Indian Constitution to the Indian-administered territories of Jammu and Kashmir, and a provision which safeguarded the autonomy of the territory under Indian law. The change itself was accompanied by yet another brutal clampdown on the collective rights of the people, especially in the Kashmir valley, with mass detentions, a communication blackout, press curbs, a curfew — a ‘siege’. Naturally, Kashmir came back into the news both in India, and the world outside. In India, seen as a part of a series of such spectacular changes brought about by the State, it brought forth a limited outrage among some who referred to this being: “Kashmirisation of India”, a“ test bed model for internal colonialism”, or even an attack on the federal structure and the “Constitution of India”.

Centring different experiences borne out of an account of history profoundly different from the one narrated in Delhi, a Kashmiri feminist collective came out with a Kashmiri version of Bella Ciao. As the creators say, “the song was written on an odd night, away from home, in the aftermath of Aug 5 by a few young Kashmiri women. It is in memory of our people, our collective struggles, and in hope of Azadi (freedom).” In this story, the Constitution and articles like 370 were never theirs to begin with—they belonged to the Indian state, and their client regimes (“Tuhindi article”). In such a re-telling of the story, the Constitution of India was yet another tool to domesticate text-book international (law) issues of contested sovereignties and erase a long history and plurality attached to the self-determination driven struggle. August 2019 then was not necessarily about a “Kashmirisation of India”, or a “test bed model for internal colonialism”, or even an attack on the federal structure and the “Constitution of India”. Considering the nature and the circumstances of such a change, it was a “direct assault on their existence as a people”.

Taking a cue from the latter conversations about the Indian Constitution and especially the drafting, life, and the demise of Article 370, this blog post will attempt to problematise the use of the Indian constitutional framework in the engagement with Jammu and Kashmir. It will also hint towards an alternative role where the use of the Constitutional framework can, despite its limitations, make space for questions of self-determination, and contested sovereignties.

The Life of Article 370

Housed in the part on “Temporary, Transitional and Special” provisions, Article 370 laid down “Temporary provisions with respect to the State of Jammu and Kashmir.” Unlike the other Indian Princely States under the suzerainty of the British Crown, the former princely state of Jammu and Kashmir was formally brought within the dominion of India after a unique,  and incomplete accession to India signed by the Dogra monarchical ruler (Maharaja)—conditional on a plebiscite promised to the people and meant to ascertain the wishes of the people on the state of accession. The legitimacy and legality of such an accession have been deeply contested (see here, here and here) but served as the foundation, and an inextricable link, for a subsequent constitutional relationship – articulated through the contested Article 370.

Without much textual hint around the reasons and conditions for such specialty and temporality, Article 370 simply provided a tiered, bilateral process (involving centers of power in Sringar and Delhi) to extend the Indian Constitution (with exceptions and modifications!), and expand the law making powers of the Indian Union to the Indian administered state of Jammu and Kashmir. As a safeguard for the brokered autonomy until the question of integration was definitively decided, 370 stood as the only route for an extension of the Indian Government’s laws and governance beyond the matters that were already negotiated by the political elite of the former princely state during accession. However, as is shown by Noorani and Deva, it makes way for a re-authoring of the Constitution of India when applied to the State of Jammu and Kashmir with the widest powers to the Indian Government to extend the Constitution of India with not just exceptions and modifications, but also with “insertions, omissions, substitutions, differing constructions and additions”. As India’s first President, Rajendra Prasad said: it was a provision of “peculiar and exceptional nature” for “amendment of the constitution by an Executive … as distinguished from Parliament”, and that such unbridled power of constitutional amendment should be exercised sparingly (perhaps “only once”?).

Something, of course, had to be done to a provision of this nature. It appears it would be counterintuitive to let such an unaccountable power remain in a Constitution of a republic! However, it did stay until 2019. And it being taken away in a “clever”, “blinding swoop” (yet, not one that looks unprepared)—evoked the imageries above and emotive responses from several quarters. Perhaps, as we explore below, there is more to the story of 370: both said and unsaid that explains such reactions – especially the sense of loss and resistance that the creators of Bella Ciao allude to.

The Immaterial Death

Besides Prasad, constitutional scholars like Noorani have demonstrated how the use of Article 370-process was highly questionable—especially after the dissolution of the Constituent Assembly of Jammu and Kashmir in 1956 that provided the additional tier as a safeguard referred to above. To Noorani and others, such extensions of the Indian Constitution past 1956 go beyond the temporal limitation set by the Indian Constituent Assembly, and also endorsed by the Supreme Court of India in the first ever case on Article 370.

In fact, in 1964, in a not-so-legal-looking earlier attempt to abrogate Article 370, India’s Home Minister, Gulzari Lal Nanda assured the ones who tabled the proposal that the process under Article 370 was a “beautifully conceived”, and a “simple” process to secure integration with India without having to go through a “stringent process” that accompanies an analogous power of constitutional amendments. To Nanda, ironically, Article 370 had parallels with the Banihal tunnel/Jawahar tunnel which was one of the firsts to make the valley of Kashmir more accessible to India all year round. Put into operation amidst crises (both created and catalysed), and sanctified several times even by the highest constitutional court of India, it was through repeated use of this tunnel, as Nanda said in 1964, that “a good deal of traffic [had] already passed and [more would]”. In other words, as Nehru described in 1963, the provision had “made the relationship of Kashmir with the Union of India very close”, even making Kashmir “fully integrated.”.

Most charitably then, through the provision of specious safeguards, Article 370 essentially provided a gatekeeper to the gates of the tunnel. However, owing to such an easy “wreck” it could, and did create, the gatekeeper, as Mir Suhail draws, turned out to be a long dead-one.

The Material Injury

The long-dead gatekeeper does not become the martyr, and its death in 2019, does not really see the mourning, a form of resistance in Kashmir, that brings forth state anxieties around regulating funerals and dead bodies. What was in fact struck in November 2019 (surgically, constitutionally), triggering the anxieties of the State was behind the gate which the gatekeeper guarded. Perhaps something like the proverbial “Schrödinger’s cat” – both dead and alive at the same time? Perhaps, more likely, an injured cat?

For different people, this proverbial cat meant different things. To some, it was a symbol (of what remained) the underlying promise of relative autonomy, or it was an extra-constitutional arrangement of two coordinate constitutional structures (one Indian, and Jammu Kashmir’s own constitution), or even a symbolic special status, or most materially a protection for a version of “territorial integrity and collective rights to land and livelihood” for the Indian administered state of Jammu and Kashmir.

It is hard to argue that the Constitution of Jammu and Kashmir (which does not draw powers from Article 370, but from the accession), and the “lush undergrowth of laws, bye-laws, judgments and executive orders” are magically dead with this sudden swoop. It was, nevertheless, a lethal attack on the proverbial cat, made worse by a political, judicial and militarised entrenchment that left no room for dissent or counter-argument. It, however, brought together in purpose and resistance—not just those who are popularly known as the pro-India parties (many of whom had filed petitions challenging Article 370) but also those political groups who have historically opposed the legitimacy and the application of the Indian Constitution, and find the application of the Indian Constitution to be what Joseph Weiler and Michal Saliternik would term as “annexationist”.

While some are hoping to save the cat—the others, perhaps like our women from the song above, are hoping to maintain some kind of status quo in their resistance. With the loss of the protection to define and preserve the rights of permanent residents, particularly their associations with land, becoming more palpable than ever, the latter group also hopes it does not lead to irreversible demographic changes that may frustrate any resolution. There is also a deep sense of foreboding, what many say, of the propelling of what is already a start of a settler colonial project (see here, and here); and the November 2019 move becoming an imprimatur of a clear title for the Indian state, and a license for the entrenchment of state control (through policing or otherwise).

Finding Language for the Injury

From “an odd night, away from home, in the aftermath of Aug 5”, we travel to the Supreme Court of India in Delhi, the heart of where the legal battle around Article 370’s amendment was last playing out in January 2020. Standing before a constitutional bench, Senior Advocate Zafar Ahmed Shah appearing for the Jammu & Kashmir Bar Association (J&K BA) says: “Within the framework of the Constitutions, you have yours and we have ours.” Shah reminded the Court of how Article 370, emanating from the Instrument of Accession (signed “fortunately or unfortunately”) did not affect the vestige of sovereignty the acceding state had owing to the terms of an incomplete and conditional accession.  In fact, such an acknowledgement was also made during the drafting of the Constitution of India (see here and here), and several times outside of the Indian Constituent Assembly.

The statement by Zafar Ahmed Shah received some strong expressions of discontent from both the Attorney General and the Solicitor General of India with the latter arguing that the mentioning of a plebiscite justifies “secessionist movements” which should not be allowed. Interestingly, although accepted as an expressible ‘perspective’, Shah’s arguments were very mindful of the limitations of the language of the Constitution of India which anyway has no vocabulary for, say, an annexation or an occupation, and how the Indian Constitution enforces the logic of territory, and its integrity. To that end, such an attack on Article 370 rather than being acknowledged by its rightful name that may exist outside the unitary realities imposed by the state law and the constitution— using the constitution alone compels one to always find acceptable constitutional terms to name and measure such infractions.

Besides that, courts (especially the Supreme Court of India) have