No Kashmiri politician will work with or alongside BJP after this: Historian Andrew Whitehead

Courtesy Andrew Whitehead
07 August, 2019

On 5 August, the union home minister Amit Shah announced in the Rajya Sabha that the Bharatiya Janata Party government had effectively nullified Article 370 of the Indian constitution, which granted a special status to Jammu and Kashmir. Shah tabled two bills in the upper house that necessitated revoking the special status guaranteed to the state. In addition to the bills—the Jammu and Kashmir Reorganisation Bill, 2019 and the Jammu and Kashmir Reservation (2nd Amendment) Bill, 2019—Shah also brandished a presidential order, dated the same day, which extended all the provisions of the Constitution to the state, defanging Article 370. Both bills passed in the house.

Following Independence, Article 370 had formalised the terms of Jammu and Kashmir’s accession to the Indian union—as stipulated in the Instrument of Accession. Among other things, Article 370 mandated that barring certain subjects—such as defence and foreign policy—the central government was required to seek the concurrence of the Jammu and Kashmir government before it could legislate in the state.

Yet, as the state has been under President’s Rule since December 2018, the centre circumvented this requirement—the presidential order allowed the governor to assent in lieu of the state legislature. Through the Reorganisation bill, the government split the state into two union territories—Ladakh and Jammu and Kashmir. That the centre acted in the absence of a state government and through an executive order also raised questions about the constitutional validity of its decisions.

Andrew Whitehead, a historian and visiting faculty at the Asian College of Journalism in Chennai, who was formerly a journalist, spoke with Mehak Mahajan, an editorial fellow at The Caravan. They discussed the historical context of Article 370 and its relevance, or the lack of, to the contemporary political situation.

Mehak Mahajan:What is your reaction to the BJP government’s decision to effectively dismantle Article 370?
Andrew Whitehead: It is something that the BJP has said it intends to do in repeated election manifestos. But I am actually quite surprised that they have done it. I thought that the BJP had taken a settled decision, that though they wanted to rescind Kashmir's special status, it was more trouble than it was worth. I say that because Article 370 does not have that much practical significance. Its huge importance is symbolic. So, initially when Article 370 was instituted, it meant that not all legislation approved in Delhi, applied in Kashmir. It meant that institutions, such as the Supreme Court and the Election Commission did not necessarily have authority in Kashmir. But those particular provisions were basically diluted decades ago.

Now, it basically means that Kashmir has its own constitution; it has its own flag. There are a few other fairly minor anomalies and then, linked to 370, but in a separate article [Article 35A], there is this restriction on outsiders buying property in Jammu and Kashmir. So, in a sense, this is not really big stuff but the real importance is the symbolism. For Kashmiris, this is a reflection that the manner by which their territory became a part of India and the basis on which it became a part of India, was reflected in a special status in the Constitution. That was the result of a political accommodation between [the former prime minister Jawaharlal] Nehru, and his government and Kashmiri political leaders of that time. Delhi has now unilaterally torn that up.

For the BJP, there is a real irritation that this special status only applies to India’s only Muslim-majority state. From that point of view, you can see why they wanted to iron that out. I am not really sure whether it is going to be worth the political volatility which will no doubt find expression in the Kashmir valley. And the intense anger that will be provoked, not simply among separatist groups, but among people who were at various times the BJP’s allies—people like [the former Jammu and Kashmir chief ministers] Mehbooba Mufti and Omar Abdullah.

MM: You reference a lot of Kashmir’s archival history in your writings and in your book A Mission in Kashmir—specifically Hari Singh’s actions between 1946 and 1948. What do you make of the BJP’s decision, in context of the historical build-up to the Instrument of Accession and Article 370?
AW: One of the problems in the way people talk about the Kashmir issue today is that they spend too much time talking about what happened in the 1940s and 50s. It is relevant, but it does not determine who is right and who is wrong. And I say that even though I am a historian and I have spent a lot of time looking at what happened in the 1940s. What is quite clear is that Hari Singh, the maharaja of Jammu and Kashmir, was entitled to make the decision—legally entitled, I am not saying morally entitled—about whether Jammu and Kashmir should be part of India or Pakistan. He did make that decision. He opted for India. He probably made that decision and signed the piece of paper [the Instrument of Accession], slightly after, rather than slightly before, the airlift of Indian troops, which is a relevant point, but hardly determines who should rule Kashmir now.

And I think the important thing to also emphasise is, at that time in October–November 1947, Hari Singh had the support of his political nemesis, Sheikh Abdullah [the former chief minister of Jammu and Kashmir] who had just emerged from the maharaja’s jails. So, I would not say that everybody in Kashmir at that time supported the accession to India. But there was a real groundswell of opinion in the Kashmir valley in support of India largely because of resentment at what the Pakistani forces—the tribal raiders, as they are sometimes described—had done as they sought to approach Srinagar. But as I said, we spend too much time talking about what happened in the 1940s and 50s. What really matters is how Kashmir is governed today and how the people of Kashmir can feel that they have a sense of agency in the way in which Kashmir is governed.

MM: Coming back to the symbolism of Article 370, in your interactions in Kashmir, what was your perception of the Kashmiris relationship with Article 370?
AW: When in Kashmir, in talking to Kashmiris, Article 370 has not been, at least not until recently, something that people talked about a lot. It was part of the background; people thought it was broadly immutable. The things that really concerned the Kashmiris were the security forces’ presence; the lack of agency that they felt in the control of their own affairs; the resentment against what they saw as the high-handed attitude of Delhi; their lack of trust in just about any local Kashmiri leader and the persistence of human-rights abuses. They spoke much more about those things than about Article 370.

But now, today, in Srinagar, I am sure the only thing that the people are talking about is Article 370. Of course, we do not know because of this remarkable clampdown Delhi has imposed. All schools and colleges closed, tourists and Hindu pilgrims sent out of the state and rigorous restrictions on freedom of movement and assembly. A shutdown of a larger part of the internet and mobiles and a lot of landlines as well, it seems. That is a reflection of how concerned Delhi was about the response to this measure in the Kashmir valley.

MM: Would you say that the security build-up has been a pre-emptive measure too?
AW: I am sure that the deployment of extra troops and restrictions on freedom of movement and the house arrest of former chief ministers would be justified in terms of ensuring the maintenance of law and order. But it is a remarkable step to take that you impose house arrest on people like Omar Abdullah and Mehbooba Mufti, who are constitutional politicians, who broadly support Kashmir remaining a part of India and who have at different times in the past allied with the BJP. I think that it is an astonishing move to make in any circumstances.

MM: What do you expect the BJP government to do in the coming months and years with respect to Kashmir? How do you see this playing out?
AW: I do not think that that they will spend too much time worrying about popular opinion, public opinion or political opinion in Kashmir. Now, it is going to be very difficult for the BJP to find any Kashmiri or Kashmir valley politician of substance who will work with them or alongside them. I cannot see Mehbooba Mufti or Omar Abdullah or even Sajjad [Gani] Lone working with the BJP in the near future.

One of reasons that is going to cause a great deal of unease when the dust settles, is the way in which the former state has not only been bifurcated—with Ladakh separated from Jammu and Kashmir—but the rump of Jammu and Kashmir will no longer have the standing of a state. It will be a union territory which by any definition is a lesser state. So, Kashmir has lost its special status in the Constitution, and its status within India has been downgraded politically.

MM: What do you think are the implications of the presidential order that has come along with the revocation of Article 370?
AW: You really need to be a constitutional lawyer to understand the fine points of what the Indian government has done. I am, at first glance, surprised that the government believes that simply a presidential order is sufficient technically, not to revoke, but to sidestep Article 370. It looks as if what they have done would also mean the end of Article 35A, several restrictions on non-state subjects buying property would also be rescinded. I think it is almost certain that the validity of this will be challenged in the courts. I would not like to say what the outcome will be.

We could look at this constitutionally and we could look at it legally, but the important thing is to look at it politically. The BJP, re-elected with a bigger majority, has decided to act on what has, for decades, been one of the cornerstones of the Hindu nationalistic agenda—removing the special status of India’s only Muslim-majority state. And they seem to have got fairly broad political support in Delhi for that. Congress is against it, but many of the smaller parties, including some who are not customary allies of the BJP, including the Aam Aadmi Party—much to my surprise—are supporting the BJP’s move. So this is, in essence a political move. I assume that the government has done its homework, and is on constitutional and legally secure grounds, but that will inevitably be tested in the courts in the months to come.

MM: There have been multiple Supreme Court rulings on the permanent nature of the Article 370, which now does not seem to be tenable. What is your take on that?
AW: There has been a lot of debate and discussion about whether Article 370 was temporary or permanent. When people pointed out the temporary aspect of that, what was meant by that? In essence—as I understand it, and I am not the constitutional historian—because India had nominally committed to a plebiscite, the nature of Article 370 had to be temporary, because if it was other than temporary, it would prejudge the outcome of the plebiscite. That was the situation in the early 1950s, when at least a thought was being given to the plebiscite on the Indian side. This was an idea initially advanced by Jawaharlal Nehru.

Over the intervening 60 years, India has resolutely turned its back on any form of plebiscite. So, that is not going to happen. But the temporary nature of Article 370, in the way that it was initially envisaged was because the issue of plebiscite, at that time in the 1950s, remained alive.

MM: The media coverage around the BJP’s decision has built a celebratory narrative using hashtags such as #Modi integratesKashmir, #OneIndia and such. What do you have to say about the supposed popular support for what they have done on Article 370?
AW: I do think the BJP rank and file and indeed many others in India will support what [the prime minister] Narendra Modi has done. I feel that there is a great deal of confusion about why Jammu and Kashmir should have a special status which is denied to any other state. But this was the result of a political accommodation in the late 1940s and the early 1950s. It was in very broad terms, negotiated between Delhi and Srinagar. The way in which Kashmir became a part of India, the time at which it became a part of India, was different from the rest of India. Indeed the claim by Pakistan and the way in which it has been pursued is also a point of difference between Jammu and Kashmir and the other parts of India.

People across India do not quite understand that, but in practical terms this means virtually nothing. Jammu and Kashmir, on paper, has a little bit more autonomy than other Indian states. In practice, it has for decades had less autonomy, and under the new dispensation, when its status is downgraded to union territory, it will have still less autonomy than it had before.

MM: There has been no engagement whatsoever with the actual stakeholders, which is the Kashmiris. We do not know anything about what’s going on in Kashmir today. What do you have to say about the way this was done?
AW: It is really sad that the one thing that we do not know is what is happening on the ground in Kashmir because of the almost total closure of the internet and of telephone communication. It does not feel appropriate. In security terms, I am not convinced it was necessary to place constitutional political leaders, such as Mehbooba Mufti and Omar Abdullah, under house arrest. It is a very grave step to take.

If you compare this [the current military deployment] to the early 1990s, I think the Indian security presence is rather less omnipresent now than it was then. But it is the same big military build-up. And it makes Kashmiris strangers in their own land. It makes them feel absolutely powerless and disrespected. And that leaves a sense of profound resentment which is likely, at some stage, to find a political expression.

The interview has been edited and condensed.