Scottish novelist Robert Louis Stevenson famously said, “The mark of a good action is that it appears inevitable in retrospect.” Four years ago, when Union Home Minister Amit Shah stood in Parliament to present a bill that would make Article 370 of the Indian Constitution defunct and politically reorganise the erstwhile state of Jammu and Kashmir, it was a moment of disbelief and surprise. Four years later, nothing seems more logical and rational. That a temporary article of the Constitution had lasted for 70 years and was given a semblance of being the only ‘bridge’ that connected the rest of India with Jammu and Kashmir deserves an exclusive chapter in an epic that will be written one day chronicling the chicanery of Nehruvian secularism.
Four years later today it is worthwhile to revisit the days that led to the momentous decision, acknowledge the legal and political sophistication with which the bills were introduced and passed in Parliament and recognise how peace was maintained immediately after. It is important to go back because besides being one of the brightest moments in the Modi government’s second term, this moment will go down in history as one that challenged the status quo and pressed the reset button in a conflict zone. It is also good to remind ourselves how brilliantly this moment was executed because public memory can be short.
A quick recap of 70 years before the temporary constitutional provision was made non-functional will be useful. Article 370 was unnecessarily made into a super emotional issue with the Kashmiri Muslims. It had been conveyed to them that this was their only weapon against “Hindu” India. In a nutshell, beyond venomous rhetoric, this contentious piece of legislation kept the state impoverished, development remained a distant dream and integration and assimilation with mainstream India became impossible.
On 5 August 2019, the Modi government did the unthinkable. After BJP’s aborted alliance with PDP, maintaining a status quo and playing musical chairs with the two Valley-based political parties was no longer tenable. It was time to remove the smokescreen and time for New Delhi to speak to Jammu and Kashmir in one voice. If Kashmir was an integral part of India, then why did it need ‘special status’? If India had rejected the two-nation theory, then why was it being implemented in Kashmir as the presence of Article 370 meant India did not have faith in its own Constitution and needed to add a safeguard to govern a Muslim-majority region. Allowing Article 370 to continue was allowing a two-nation theory to blossom in India.
Complete secrecy was maintained in the run-up to the revocation of Article 370. No leaks, no rumours, no trial balloons were floated. Now in retrospect, we know from reliable sources that the proposal for the abrogation of Section 35 A of the Constitution (which gave the state legislature of Jammu and Kashmir the right to define “permanent residents”) had already been discussed in the first term of the Modi government. It was decided to leave it to the second term when they hoped to return with a bigger mandate.
Once they returned with a bigger mandate in the 2019 elections, it was decided to go the whole hog and get rid of Article 370 itself. Many constitutional experts had said it was impossible to touch Article 370 because it requires the consent of the constituent assembly of Jammu and Kashmir which was dissolved in 1957 itself. Politicians in Kashmir had threatened a blood bath if Article 370 was even discussed. Keeping all this in mind, Home Minister Amit Shah had done all his homework brilliantly.
In the Indian Constitution, Article 370 falls under “temporary provisions concerning the state of Jammu and Kashmir”. However, it was a commonly held belief buttressed by the Supreme Court on various occasions as well as various high courts that Article 370 cannot be removed. So, if removing Article 370 would lead to constitutional choppy waters, the next best option was to make it inoperative using Article 370 itself. Clause 3 of Article 370 gave that option to the government. Clause 3 of Article 370 said that the President could declare this article inoperative provided there is a recommendation of the Constituent Assembly of the State. Since the constituent assembly no longer existed, therefore the power to give this recommendation was with the state legislative assembly which had succeeded the constituent assembly. Since the state was under President’s Rule, all powers of the state assembly resided with the Parliament.
Therefore, the President needed no further recommendation besides the Parliament to declare Article 370 inoperative. This begs the question if Article 370 was meant to be permanent as we were told, then why did those who drafted the law insert clause 3 in it? They wanted it to become “inoperative” at some point. As I write this, the Supreme Court is listening to petitions challenging the amendment of Article 370 by the Parliament of India.
After the announcement of 5 August, the first challenge was to maintain peace and prevent any law-and-order issues. On this account, the Modi government delivered very well. Streets in the Valley remained calm with only turbulence noticed in the opinion columns of global liberal media. No incident of mass public violence was recorded. There was no loss of life by police action. The challenge of terrorism fuelled by Pakistan remains but the public uprising is now a thing of the past.
The reforms that have been implemented post Article 370 have made it clear that this was not merely an ideological promise or political necessity. It was a deeply thought-out security reform needed to preserve the integrity of India. Kashmir Valley successfully hosted a G20 meeting where representatives of all major G20 countries met and deliberated. Kashmir Valley also hosted a three-day national conference on legal services which was attended by about 200 judges from the Supreme Court and high courts of various states of India. Jammu has been liberated from the tyranny of disproportionate political representation of the Valley. Infrastructure development has changed the face of the Jammu region for good.
Perhaps the defining moment of a big bang reform like amending Article 370 was the visual from Kashmir that went viral recently. J&K Lieutenant Governor Manoj Sinha was seen participating in the Moharram procession which had been allowed after 34 long years in the valley. Shia Muslims are a minority in Kashmir Valley who often had to face stone pelting during Moharram processions and that is why it had been banned. Amendment of Article 370 made it possible for Shias to take out a Moharram procession once again in Srinagar.
The next logical step must be justice for the Kashmiri Pandits, the victims of a long, continual genocide. All paths after the amendment of Article 370 led to the restoration of human rights for every citizen of Jammu and Kashmir. We are on the right path of getting there sooner than later.
Sunanda Vashisht is a writer and political commentator whose area of focus is the conflict-ridden region of Jammu and Kashmir. Views expressed in the above piece are personal and solely that of the author. They do not necessarily reflect News18’s views.
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