J&K: Dangerous Demographics: Linking Article 370 with the Pandits’ return

Well known Bollywood actor, Anupam Kher, now better known for his extreme right wing views, in a recent article in the Times of India, has advocated revocation of Article 370 of the Constitution of India and settlement of people from outside the state as a remedy to the sufferings of the Kashmiri Pandits, to enable their safe return to the Valley. [1]The suggested panacea is worse than the disease. It is based on not just a poor understanding of an issue but is born out of a pernicious ideology that has made no secret of its desire to orchestrate a change in the demographics of Jammu and Kashmir. It is mischievous, at its root.

Kher was recently in Jammu. He was visiting camps, talking about Article 370. He was also in the city to inaugurate a two day literary festival. The lit fest was poorly organized and after the inaugural session, there was nobody left in the audience but the speakers. The avowed aim was to talk about literature delinked from politics. However the real motive behind Kher’s visit seems to have been to flag the abrogation of Article 370, and yet again inject a dose of hatred into public discourse, in the bargain.

‘Scrap Article 370’ has been one of the pet projects of the RSS and the BJP, raked up overtly and covertly, time and again, over the past six decades. Two years ago, in the run up to the Lok Sabha elections, prime ministerial candidate Narendra Modi sought to induce some legitimacy to this chorus demanding the revoking of Article 370 by invoking Nehru’s “desire” to do the same.

Jawaharlal Nehru — responsible for the first setback to the Article 370 when the first draft manipulated without the consent of Sheikh Abdullah was passed, and also Prime Minister when the erosion of the essence of the Article took place since 1953 — was also the one (before this dilution) to first define this provision of the Indian Constitution. Article 370 acts as a bridge between India and Jammu and Kashmir: He announced that the association and allegiance of the State to India, was provisional, subject to a plebiscite.

In Srinagar’s Lal Chowk, Nehru made the historic promise of a plebiscite to the people with the guarantee that the political future of the state would be decided as per the wishes and aspirations of the people. Nehru was conscious that constitutionally and legally, Article 370 could not be dispensed with, without inviting the risk of a real severing of Kashmir from the rest of India. And so, he played the balancing act, marrying his ambition of integrating India through the hollowing out of Article 370, while not opposing it politically. The Sangh Parivar, in striking contrast, has made the Constitutional provision of Article 370 a potent tool for ‘othering’ of the state, linking it erroneously to the issue of ‘integration’ and ‘assimilation.’

It is erroneous to construe that any revocation of Article 370 would amount to the complete integration of Jammu and Kashmir with India. Constitutionally, Article 370 will continue to remain a provisional agreement binding Jammu and Kashmir to the rest of the country because the accession to India signed by the Maharaja of Kashmir in October 1947 was meant to be provisional until the views of the people on the political future of the state, were fairly ascertained. That exercise has never taken place; thus this link between the disputed state and rest of India remains mired in subsequent political developments, ambiguities and interpretations. Not to mention, politicking.

Article 370 has today become a slogan across the political spectrum – whether for the formations who profess to protect it or those that advocate its abrogation. Article 370 of the Indian Constitution, suffixed with the word ‘temporary’ in its annals, offers a kind of a political autonomy to the state. Constitutionally and legally it became imperative for the Indian government to retain the state as part of the greater Indian mainland only through this Article. Challenging it, scrapping it, revoking it, would run the serious risk of creating a path for the secession of Jammu and Kashmir from the grand Indian Union. The only other alternative to Article 370 would be complete coercion and conquest of the state; indeed an ugly notion for a democratic country. (http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss%2827%29.pdf)

According to Kashmir’s Instrument of Accession, barring Defence, Foreign Affairs and Communications, the Central government had no jurisdiction over Jammu and Kashmir. However, New Delhi’s near pathological insecurity with respect to the only Muslim majority state may have inspired its leaders to begin hollowing out this Constitutional provision that was the sole link to the State, providing it with the historical, special status.

It (Article 370) has been eroded excessively through deals like Delhi Agreement in 1952 and through the clandestine control of the political sphere of Jammu and Kashmir by New Delhi through induced corruption, rigged elections and support to puppet regimes. Article 370 was completely hollowed out post-1953, that legally provided for the application of Central laws to Jammu and Kashmir; doing away with the permit system for visitors from outside the State; and by allowing the Centre greater control over matters like Excise, Customs and Posts and Telegraphs. The Indira-Sheikh accord of 1975 was the last nail in the coffin, which allowed New Delhi to change the narrative of the Special Status of the State with the words “Constituent” of India.   

The call for scrapping the Article 370 makes a complete mockery of due processes of law and completely disregards the potential that such a slogan has in engendering a Constitutional crisis. The legitimacy to the Article 370, which grants special status to the state of Jammu and Kashmir, comes from the Draft and Resolution prepared by the first Constituent Assembly of Jammu and Kashmir. There is no Constitutional procedure to review or revoke the Article (370) without re-creating the Constituent Assembly. Needless to re-iterate, that any revocation of the Article would only pave the way for severing the State from rest of the country.

Article 370 was brought in to serve a twin purpose. Of both acting as a Constitutional bridge between a State with its exceptional history (Jammu and Kashmir) with India, while safe-guarding its autonomy in all areas barring Defence, Foreign affairs and Communication. However, six decades down, a trajectory of shady accords backed by remote-controlled politics from Delhi and this ‘safeguard’ — Article 370, this unique provision and Constitutional provision–has been reduced to a hollowed-out shell within Constitution of India. The mere words ‘Article 370’ still evoke strong reactions, though.

The bitter reality today however for Jammu and Kashmir is that that far from enjoying any autonomy, the Centre enjoys powers of manipulation and manouevre over the state affairs in Jammu and Kashmir. A man once hailed as ‘the Lion of Kashmir’, Shaikh Abdullah, was brought to his knees, put behind bars and stripped of his powers. Only when he bowed to the might of New Delhi was he ‘allowed’ to remain in power.

Constitutionally, Article 370 will continue to remain a provisional agreement binding Jammu and Kashmir to the rest of the country because the accession to India signed by the Maharaja of Kashmir in October 1947 was meant to be provisional until the views of the people on the political future of the state, were fairly ascertained.

Little of the original autonomy envisaged in the original Article 370 today remains. Diluted and hollowed out, Article 370 is a shallow replica of the original. Nevertheless, the continuance of this Article, even in its present form is critical: not for purposes of protecting the autonomy of the state but to ensure the legal validity of the state’s integration with the rest of India. The only untouched and undisturbed portion of the original Article 370 relates to the protection of the state Subject Laws, created during the time of Maharaja in 1920s and now called the Permanent Residentship Law: this Law does not allow people who settled in Jammu and Kashmir after 1942 to attain proprietary rights over property nor the right to get government jobs. 

Hindutva  proponents, from time to time have linked the revocation of Article 370 to orchestration of a demographic change in Jammu and Kashmir. Anupam Kher’s outpouring may be the first time that its abrogation is linked, in any way to the Kashmiri Pandit question! The core of the sinister argument being that, once people from rest of India are allowed to settle in Jammu and Kashmir, the Pandits will be far more secure in returning to the Valley!

This proposition has more than a touch of irony. Almost a century ago, Kashmiri Pandits were the most educated and affluent class in Jammu and Kashmir and naturally felt threatened when affluent outsiders from Punjab began settling in and becoming a formidable challenge to the might of the Kashmiri Pandits. It was the latter, the Kashmiri Pandits, that were the main motivating force behind the creation of the State Subject laws and this is history.

There are serious flaws in the proposition that the revocation of Article 370, or the manipulation/change of the religious demography of the State can enable the return of Kashmiri Pandits.

Firstly, Kashmiris have a cultural and ethnic identity that is distinct from rest of South Asia. Kashmiris – both Muslims and Pandits – have traditionally shared bonds of syncretic and plural culture that finds no parallels elsewhere in the country (India) or South Asia. Cutting across religious affiliations, Kashmiris have always been conscious of their distinct identity and of protecting it. It serves the interests of neither community, neither the Pandits nor Kashmiri Muslims, to scrap Article 370 or the Permanent Residentship Law. They would not wish to preside over the destruction and dilution of their own unique identities and.

Secondly, any talk of abrogation of Article 370 in a sensitive place like Kashmir and Jammu is like waving the proverbial red flag before a bull. Any Hindutvawaadi design on the state’s demography invokes acute insecurities and imaginations of a future akin to that of Palestinians on the Gaza strip. This insecurity is also located in the reality of the fact that the Muslims– despite being in majority in the State — continue to be powerless in view of the way in which political control is exercised by Delhi. 

Thirdly and most importantly, this red herring flung out by the politicians of the RSS-BJP-VHP combine (Sangh Parivar) is based on the misplaced presumption that the displacement and insecurity experienced by the Kashmiri Pandits’ is on account of the Muslims being a majority in the State. Pandits were not ever threatened by the majority community to flee the Valley. Though the threat perception to the community cannot be negated (this was a natural product of the years when the character of the resistance changed from Azaadi to Islaamiyat; when youth from the Valley crossed the borders and decided to pick up the gun to fight the Indian state), it cannot be simplified to a Muslim versus Hindu problem. Had that been the issue, no Pandits would have survived in the Valley in 1947, when the rest of the sub-continent was caught in the grip of communal violence. In fact, inspired by the communal bonhomie of Kashmiri Muslims and Pandits, in those distressing times, Gandhi had famously talked about seeing a “ray of hope” in Kashmir.

The majority of the Pandits fled the Kashmir Valley in the 1990s and ever since, the forced migration has been a bone of real and academic contention – right from their numbers to the reasons they fled. It is not uncommon to find a Kashmiri Muslim concluding that Pandits suddenly fled one day when militancy began, often holding former J&K Governor Jagmohan responsible for the enmasse exodus. The Pandits vehemently challenge this theory; quoting instead from the reality of an  atmosphere filled with xenophobia – open threats, selective killings and fear – that triggered the flight in different batches, the first one being January 19, 1990. Both popular narratives are located within black and white extremes, often throwing up some contradictions. Both narratives, however, are historically placed in the exemplary harmonious relations between the two communities before the 1980s and to some extent through the 1980s as well.
 
It would be significant to take a re-look at those fading last days of a freezing winter, when the Pandits actually fled the Valley. The right wing groups among Kashmiri Pandits recall January 19 (1990) as ‘Holocaust day’. For Kashmiri Muslims too, January 19 is a turning point, not particularly owing to the flight of Pandits and other minorities that also eventually robbed the Valley of its secular fabric, but more for the intensified curfew on the streets and the slew of shocking massacres by security forces that followed. For both, the day forms an important part of collective memory, for entirely different sets of reasons.

The Pandits vehemently challenge this theory; quoting instead from the reality of an  atmosphere filled with xenophobia – open threats, selective killings and fear – that triggered the flight in different batches, the first one being January 19, 1990. Both popular narratives are located within black and white extremes, often throwing up some contradictions.

The day also coincides with Jagmohan taking over the reins of Jammu and Kashmir as Governor of the state, suddenly placed under Governor’s rule. The move had probably been coming, given the heightened militancy-related incidents between September and December 1989. New Delhi had been sending in extra reinforcements of armed forces and the number of troops had doubled since the beginning of January. The last vestiges of State Government control had virtually collapsed by end of December itself; the situation was already under New Delhi’s direct control by the time Jagmohan took over and began his work. The Valley had already been placed under strict unprecedented curfew for days. A large chunk of Pandits left the Valley on the intervening night of January 19 and 20, amid a strict curfew, many in buses of government controlled J&K State Road Transport Corporation. On January 20, house to house searches, raids, cordons, random arrests with allegations of harassment and atrocities began in many areas of Srinagar city, particularly Muslim majority areas.  Citizens of the Valley, caught between the devil and deep sea, started pouring out on streets in protest, violating prohibitory orders. Street protests with slogans of ‘Azadi’ with the added embellishment of Islamic religious symbols became a regular, everyday feature.

As did the massacres on streets. Starting from Gawkadal on the morning of January 21, leaving an estimated 50 to 80 people dead and hundreds injured, many of whom succumbed to their injuries later[i]. The Alamgari Bazaar massacre followed on January 22, and the Handwara killings on January 25. It is difficult to presume that these varied events taking place simultaneously were just a matter of coincidence.

Neither sets of facts, the fear and insecurity of the minorities, nor the persecution of the majority at the hands of a reckless administration can be denied. The massacres lie at the core of a deep-rooted sense of alienation of the Kashmiri Muslims as does the exodus, facilitated to serve the communal bias of a certain Governor. Whatever else Jagmohan did or did not do, as governor, instead of playing a role to ensure safety of the minorities in Valley, he certainly chose to play up their insecurities and sense of fear, paving the way for their flight. With the population that remained, strong arm tactics could be thereafter easily used.

The hazy fog of memory around the events have become important markers in how the historical narratives based on two sets of identities have shaped up. There are internal contradictions and a disregard of the ‘other’. These ‘gaps’ need to be bridged, the lacunae clarified more than ever, with a dispassionate and unbiased engagement with facts.

The events preceding these massacres of both Pandits and the Muslims, have been crucial to the snapping of Kashmir’s historic and much famed ‘secular and syncretic’ ties. Any possibility of return of the Kashmiri Pandits and the restoration of a genuinely secular polity has to be rooted in not just generating goodwill but in the exchange of a dialogue starting from the memory of those days that has generated an unfathomable bitterness; making it impossible to understand how two well knit communities living in exemplary harmony, became totally oblivious of the sufferings, pain, fears and trepidation of each other within a matter of days.

In such an inclusive approach, could be found the key to a renewal of communal harmony between the two major communities of the Valley, embittered and separated 25 years ago. It is this road that must be revisited, anew, so that the Pandits can return honourably and with a sense of security, not by further erecting walls of hatred and division between communities.

(The author is Executive Editor, Kashmir Times and also a human rights activist)

References from our Archives:
1. How Green Is My Valley   https://sabrangindia.in/sabrangthemes/how-green-is-my-valley
2. Talibanisation of Kashmir   https://sabrangindia.in/article/talibanisation-kashmir
3. Day of the ‘mujahid’    https://sabrangindia.in/article/day-%E2%80%98mujahid%E2%80%99