Constitutional Federalism: State Of Exception In The Paradise Of Kashmir

But what does this act by the Indian security forces have to do with the larger debate on Ind-i-an federalism, and Jammu and Kashmir’s position within it? To start with, it reflects the sense of powerlessness prevai-ling among regional political parties as well as the people of J&K.

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On August 5, 2019, when the BJP government abrogated Article 370 amid a military siege, a comm-unication blackout and the arrests of tho-u-sa-nds, incl-uding three former chief ministers, the relat-i-on-ship of J&K with the Cen-tre changed dramatically. Earlier, the state had a separate constitution. Now, as a Union Ter-r-i-tory, Jammu, Kashmir and Ladakh had become separate territories under the Indian Constitu-tion. Earlier, regional parties sought autonomy and self-rule, but now they fear to raise any such issue. There are now widespread rumours that political leaders of the state’s regional parties are being coerced to join other parties.

Since 1950, Kashmir’s politics had revolved aro-und the political issue of Kashmir and its resolution. National Conference would repeatedly talk of restoring autonomy to J&K as the lasting solution to the issue. Since August 9, 1953, when She-ikh Mohammad Abdullah was arrested, and J&K was relegated from an autonomous state within the Indian Union having its own PM and Presi-d-ent, to a status equivalent to that of any other state within the Indian union, NC has been seeking restoration of the long-lost autonomy, with Article 370 acting as its bed-rock. On June 26, 2000, the J&K assembly created ripples acr-oss the country, when, with Farooq Abdullah as chief minister, it passed an autonomy resolution with a voice vote.

Prior to contesting elections in 1996, Abdullah had promised greater autonomy to the people. In 1996, there were around 6,000 to 7,000 militants operating in J&K, with no political party ready to contest polls, when Dr Abdullah jumped into the fray. Later, speaking on the autonomy deb-ate in 1999, he had said, “No one, including the NC, was ready to take up the challe-nge of electi-ons then. But we were assu-red by New Del-hi on autonomy, so we jumped into the electoral fray, putting at risk not only our lives, but also those of lakhs of people.” After the resolut-ion was passed, copies of it were handed over to the Int-elligence Bureau and the Cen-tre. However, the then NDA government rejected the resolution.

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Meanwhile, since its foundation in 1999, PDP has acted as a quasi-separatist party while seeking self-rule for J&K. Yet, in spite of their rhetoric, PDP formed the government with BJP in 2015, with Mufti Mohammad Sayeed as the chief minister, followed by his daughter Mehbooba Mufti after his death.

Now, both NC and PDP have filed petitions in the Supreme Court challenging the revocation of Article 370 and seeking restoration of sta-te-h-ood by giving up slogans of autonomy and self-rule.

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Despite raging conflict and insurgency, J&K und-er Article 370, which governed the Centre’s relationship with Jammu and Kashmir and was seen as an essential facet of India’s federalism, was enjoying its fruits. Constitutional experts and pol-itical parties in the state, especially NC and PDP, would always describe Article 370 as a tunnel thr-o-ugh which the Constitution of India is applied in Kashmir. In 2014, NC vice presid-ent Omar Abdu-l-lah famously said Article 370 is the only link betw-een J&K and the rest of India.

It must be said here that Jammu and Kashmir was not the only state enjoying special status in matters of land and identity. Under Article 371A, Naga-land also enjoys a special status, and no act of Parliament is automatically extended to Nag-a-land in matters of religious or social practices, ownership and transfer of land and resources, unl-ess the state legislative assembly takes a call on it. In spite of Art-icle 370, ind-ustrialists from across the country could get land on 90-year lease in J&K. Now, political parties in the Lad-akh UT are seeking full statehood for their region, along with Article 371A like guarantees.

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“GoI’s agenda of undermining and trampling the spirit of federalism started with J&K,” Meh-booba tells Outlook. “Never in Indian history was a state demoted to a UT and robbed of its special status. More so, in a conflict region, centralised rule with an iron fist and obliterating the middle ground of mainstream parties is fraught with danger. Alarm bells for reg-ional and opposition parties should ideally have rung in 2019 itself, when Article 370 was abroga-ted,” says the former CM.

“But perhaps the opposition didn’t anticip-ate that this model would be replicated in other sta-tes too. Whether it was expanding the BSFs jurisdiction in Punjab and West Bengal, or the rude behaviour of BJP-appointed governors in opp-o-sition-ruled states, it is clear these are all a follow-up to what was done in Kashmir,” she adds.

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While Mehbooba calls the abrogation of Arti-cle 370 on August 5, 2019 the root cause of the dise-m-powerment of the people of J&K, many acade-mics feel the former state hasn’t enjoyed the fruits of Indian federalism right since 1950.

Professor Siddiq Wahid, former vice-chancellor of Islamic University of Science and Technology at Awantipora, says India has never seriously dea-lt with the idea of regionalism or federalism. “You won’t find the word ‘federal’ anywhere in the Constitution of India!” he says.

“The reason for this is that at the time of ind-ep-endence, neither the domestic leadership nor foreign powers were confident that the new nat-ion would survive. The fear of break--up was exp-ressed by the use of the term “fissiparous ten-de-ncies”. This fear introduced a bias—which still exists—against giving regi-ons their due. And now it has become habituated. The fate of J&K is an extreme example of this fear, but if you examine India’s post-Independence history, you will note that centralisation has always been the thrust of New Delhi’s agenda,” Prof Wahid says.

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He adds that New Delhi is willing to “decentralise” power in states by breaking up larger ones, such as forming Chh-attisgarh, Utt-a-rakhand and Telan-gana, but it has never been willing to decentralise the powers of the Centre. “Speci-fic to J&K, and in parti-cular whe-re it concerns us in Kashmir, the Govern-ment of India has whittled away at the first contract it formed with us—the Delhi Agreement of 1952—which was contrave-ned the very next year (1953) with Sheikh Abd-u-l-lah’s arrest. So, Delhi has always been insin-cere with promises contained in things like Article 370 or the “accommodation” of Article 35A, while Kashmiris have been naive.”

He adds that this reality will never be admitted by an Indian nationalist, be they “liberal” or “Hindutva”. “It is this foundatio-nal insincerity, of which all political parties at the Centre have been guilty, that has led to a coll-apse of trust between Delhi and Srinagar,” he says.

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Right now, fear and a sense of disempowerm-ent prevails across both Kashmir and Jammu. But it is predominantly within the political class. Speaking at her Fairview residence on Gupkar Road earlier this week, Mehbooba ref-l-ected on the mood within regional parties. “Sin-ce the abr-o-gation of Article 370, everyday life is being made complicated for people. Every other day, orders are issued to usurp even those rights of the people of J&K that they were enjoying under the Indian Constitution,” Mehbooba says. “It has become difficult to figure out who is the worst suff-e-rer in Kashmir. You chose any field—politicians, journalists or the youth—eve-ryone is being made to suffer. It is the only place where journalists are made to flee,” she says.

NC spokesperson Imran Nabi Dar says J&K was not the only place enjoying some guarantees under Article 370. “We were given rights by the Constitution of India. They took those away by locking us in jails, lock, stock and barrel,” Dar says. “Federalism in J&K can only be rescued by the Supreme Court. Let it hear petitions challe-n-g-ing Article 370. We believe the court will restore Article 370 and with it, confidence in federalism not just in J&K, but across the country,” says Dar. The majority of the people in J&K, though, are sceptical. “In J&K, people are being treated like insects. There is no hope. There is fear everywh-ere. Nobody is talking. It has been almost four years since the assembly was dissolved, we still don’t have elections,” says former minister and Panthers Party leader Harsh Dev Singh. “In oth-er states, there is democracy. Elections are held on time. We have a proxy rule in J&K. There is no federalism when it comes to J&K,” says Singh.

(This appeared in the print edition as "State of Exception in Paradise")

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