The principle and the realpolitik
Kashmir has moved a long way from enjoying the pride of place in newly independent India to being regarded by many Indians as a bad penny, a state which wants to secede and start the process of breakup of the Indian Union. Little do they realise that Kashmir stands not as a problem but as a potential answer to the problems of the Union. For Art. 370 of the Indian Constitution, granting special status to Jammu and Kashmir state, is a sound and thoughtful example of an innovative political and constitutional mechanism geared to the social realities of India's plural and diverse polity. It has the seeds of an alternative model of state-making—a path that was not taken by the nationalist leadership of modern India.
The reluctance of the politicians to countenance autonomy as promised by Art. 370 was indeed why Kashmir is today perceived as a problem. At the same time, there can be no forgetting that the same lofty principle embedded in the article—providing autonomy to sub-identities—was not followed by the Muslim leadership of the Kashmir Valley with regard to the Hindu and Buddhist minorities of the state. Much as the Indian state has sought to impose its worldview on Kashmir, so did the Valley leadership try to force its idea among the sub-identities of the state. This had a crucial role to play in ensuring that the problem remained unresolved.
Back when the Constituent Assembly of newly independent India contemplated the federal Constitution, Art. 370 was devised to recognise the fact that Kashmir was 'different' and to give it political autonomy. Specifically, the provision guaranteed a special status whereby no provision of the Indian Constitution other than Article 1 (bringing it under the territorial jurisdiction of India) was made applicable to the state. The Indian Parliament could legislate only on the three subjects of defence, foreign affairs and communications, and Kashmir retained important cultural symbols, such as its own flag, political titles such as Wazir-i-Azam (Prime Minister, instead of Chief Minister) and Sadr-i-Riyasat instead of Governor. Jammu and Kashmir had its own Constituent Assembly to draw up a state constitution, and the special position was further cemented' by the Delhi Agreement of 1952, which vested residuary powers in the state, conferred special citizenship rights for the 'state-subjects', and abolished hereditary rulership.
Prime Minister Jawaharlal Nehru had clearly gone a long way in accommodating the sensitivities of Kashmiris by adapting the Indian Constitution to suit their special requirements. Why then did it not work, and why have they twice tried to break away from India? The answer will be found in the relationship between Art. 370 and the ideology of the Indian State, as well as in the realpolitik that lay behind the drafting of Art. 370.
Jawaharlal and Sheikh
Nehru regarded Kashmiri identity as an asses for the Indian nation but only as a subset of the Indian identity, bound by the logic that the Kashmiri identity, like all sub-national identities—Tamil, Punjabi, Bengali—must be integrated into the larger nation. While he was willing to pay the price demanded by Sheikh Abdullah, of maximum political autonomy for the state, he would not do so at the cost of the Indian nation. This was why, whenever Kashmiri political aspirations clashed with the interests of the Union, the latter prevailed. For example, when Sheikh opposed the merger of the state forces into the Indian Army, the Central leadership dismissed his demand. During negotiations on Art. 370 in 1951-52, when the National Conference persistently argued that the Jammu and Kashmir Constituent Assembly was a sovereign body, independent of the Constitution of India, the Centre rejected this position.
The Centre, in fact, took it for granted that the state would be integrated into the Indian Union. Accordingly, Art. 370 was projected as a temporary provision. Gopalaswamy Ayyangar, member of the drafting committee, expressed the hope on behalf of everyone in the national Constituent Assembly that "in due course, even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other states". In placing the Delhi Agreement before the Indian Parliament, Nehru conceded that "there is nothing final about this". Once he withdrew the offer of plebiscite for Kashmiris to determine their destiny, and began viewing the role of the United Nations in the state as unwarranted interference, the shift in his position was clear. He then went on to insist that Pakistan, the United Nations and other world powers must accept the basic fact that Kashmir had become part of India in October 1947. At home, Nehru sought closer integration of Jammu and Kashmir.
Sheikh Abdullah, on the other hand, insisted that the special provisions accorded to his state could alone be the source of growing unity and closer association between Kashmir and India. He said: "Enlightened opinion in India recognised the vital human urges of Kashmiris and . . . afforded them opportunities of achieving their political and social objectives. This mutual accommodation of each other's viewpoint, which has been accorded constitutional sanction, should not be interpreted as a desire for separatism . . . History has taught us that false notions of uniformity and conformity have often led to disastrous consequences in lives of many nations."
But Sheikh faltered on home ground. He was not prepared to concede to Jammu and Ladakh those very rights and privileges which he demanded from the Indian State. While insisting upon an autonomous status for Kashmir, within its boundaries he created a unitary state with a clear concentration of powers in the Valley. He thus missed a valuable opportunity of creating in India an alternative model of a state, along the lines of Art. 370.
Pre-colonial suzerainty
The basic demand that sub-national identities show allegiance to the overarching national identity necessarily creates a dominant-subordinate relationship, the recipe for conflict. This is because the modern nation state perceives sovereignty as indivisible. Art. 370, on the other hand, was perceived to be precisely the mechanism or formula for sharing sovereignty so that Jammu and Kashmir would retain internal sovereignty. If not a co-equal position with the Indian identity, Sheikh Abdullah had expected, at the very least, a special, autonomous status for the Kashmiri identity.
Interpreted in this manner, Art. 370 came close to defining the pre-colonial, indigenous political situation in India, which was characterised by a loosely woven web of suzerainty as distinct from a sovereign state. Back then, the flexible chains of authority had matched the fluidity of social boundaries. Linking the pre-colonial past to the future, Art. 370 offered the potential and vision of creating a federation from below, whereby the states would come together and vest some common powers in the Union. Instead, what was created was a post-1947 Indian federation which was top-down and centralised. If a reaching back to the pre-colonial political terrain was what may have provided the most natural way for Indian politics to evolve after Independence, the Indian Constitution locked in place the centralised British model for ruling India.
If Nehru and Sheikh had both adhered to the letter and spirit of Art. 370 at the national and state levels, history in all India may have taken a different course. But as it turned out, Sheikh resented the Centre's attempts to integrate Jammu and Kashmir and explored the idea of an independent Kashmir. That did not materialise, and he was imprisoned in 1953. Successive central governments, often with the complicity of regimes in Srinagar, then systematically dismantled Art. 370. Its deep erosion may be illustrated by the fact that presently out of 395 articles in the Indian Constitution, 260 are applicable to Jammu and Kashmir. The remaining 135 are those for which there are identical provisions in the Constitution of Jammu and Kashmir.
In 1975, there was an opportunity to resurrect Art. 370, when negotiations between Indira Gandhi and Sheikh Abdullah led to an accord. But Mrs. Gandhi, riding a popularity wave after the victory in the 1971 war, was not prepared to make significant concessions, even as a much-chastened Sheikh was keen to be back in power after nearly two decades in jail. Sheikh was told in no uncertain terms that the clock could not be turned back by restoring Art. 370, and so the Kashmir Accord ratified the constitutional integration of Jammu and Kashmir. Even the symbolic designations of Sadr-i-Riyasat and Wazir-i-Azam were not allowed to Kashmir, and all it got was the continued presence of Art. 370 in the statute book, but in a truncated form. Thus was the principle of Art. 370, once again, sacrificed at the altar of realpolitik.
Another opportunity for placing Art. 370 on its rightful pedestal came more recently, in 1996, when Sheikh's son Farooq Abdullah was voted back to power by an overwhelming two-thirds majority on the plank of political autonomy. This election had been called after years of violent secessionist movement led by Kashmiri youth, fighting the imposition by the Centre of its political choices on the state. Farooq and the National Conference promised to revive the Delhi Agreement so that "the people of J&K state get their due honour and dignity".
The State Autonomy Committee, appointed by Farooq Abdullah's government, recommended that Art. 370 be restored to its pristine form, under which the Centre's powers were limited to defence, communications and currency. The Committee suggested that the best course was for the President of India to repeal all orders not in conformity with the Constitution (Application to Jammu & Kashmir) Order, 1950, and the terms of the Delhi Agreement of 1952. And the final settlement so arrived at should be made "inviolable" by making it a "part of the un-amendable basic structure of the Indian Constitution".
While this recommendation offered a sound and viable political strategy to fulfill the popular urge for self-governance, the sincerity not only of New Delhi but Srinagar itself was in doubt. As far as the latter was concerned, it Was significant that all members of the State Autonomy Committee, other than its Chairman Karan Singh, belonged to the National Conference, and its deliberations were neither inclusive nor participatory. (Karan Singh resigned in July 1997 due to political differences with Farooq Abdullah.) No critic of the state's autonomy or leaders of the opposition parties were represented in the Committee, and no formal talks were held with active or former militants or their political representatives.
Even after the submission of the Committee's report in April 1999, and endorsement of its recommendations by the state cabinet, there has been little public debate either at the state or at national level. Nor have formal negotiations between the state and the Central government representatives begun. The National Conference's support for the BJP-led government at the Centre has not helped its credibility on the issue, given the latter's stand on repealing Art. 370 and the Hindu right's commitment to a single 'monolithic nationhood' for all India. Farooq's critics have argued that he revived the agenda of autonomy only to cover up his non-performance in office and to bargain with the Centre for more funds. Whether the state and central governments would seize this opportunity to remodel the centre-state relations and create a new kind of Indian federation, remains to be seen.
Political azadi
The future of Kashmir, of course, does not refer to autonomy alone, especially given that there is a militancy in place, the Indian state's continuing repressive measures, and the additional matter of 'sub-Kashmiri' identities of Jammu and Ladakh. A long-term and cohesive approach towards resolving the conflict situation in Kashmir would therefore have to be three-pronged. Firstly, there should be short and medium-term measures for dealing with the militancy, revitalising the government structures and rebuilding civil society. In the longer term, and there is no getting around this, there must be a thorough restructuring of the state's relationship with the Indian State. Finally, the inter-community relationships within the state must be adjusted by replacing the unitary power structures of the Jammu and Kashmir Constitution with a new, multi-level 'federal' balance.
The secessionist movement's runaway success during 1989-91 had to do with the overwhelming support of Kashmiri Muslims. However, the movement had been checkmated by 1994 due to the vehement opposition to this goal by the people of Jammu, Ladakh and Kashmiri Pandits, together comprising nearly half of the state's population. Within the Valley too, the militants failed to channelise mass support for their cause, and subsequent criminalisation and degeneration of the militant ranks led to popular disillusionment. The indigenous character of the insurgency was sullied as Pakistan managed to marginalise the Jammu Kashmir Liberation Front with the help of the Hizbul Mujahideen and later replaced the Kashmiri cadre with foreign mercenaries whose agenda and ideology had no room for the Kashmiris' political aspirations and goals.
Through all this, the Kashmiris remained deeply alienated from the Indian State and their longing for azadi stayed intact: the Centre was singularly unable to address this critical aspect. With vision and political strategy both lacking in the Srinagar leadership, New Delhi itself shied away from grappling with the socio economic and political issues driving the insurgency. New Delhi and Srinagar both had the opportunity to change course after the state assembly elections in October 1996, but they failed to capitalise on that window.
Despite the constant bloodshed and growing disillusionment, however, the political battle of winning the hearts and minds of the Kashmiris is not completely lost. Indeed, on many parameters, the situation is better than it was in the 1990s. Despair and dejection among the populace has not turned into popular sympathy for the militants. People are generally averse to violence, and foreign militants enjoy little popular support. The honeymoon with Pakistan is over and Islamabad is no longer viewed as the 'patron' of the cause. It was the popular yearning for a humane, accountable and efficient civil administration which made the people participate in the electoral process in 1996.
It is important not to let the people down. Failing them again will irreparably damage their faith in the political mechanism and push them, once again, into the hands of those who preach violence. The National Conference government urgently needs to streamline the institutional mechanisms for redressing the people's grievances and activate its cadres to rejuvenate the political channels at the grassroots level.
The most serious challenge being faced by the Farooq government is to reverse the increasing and deepening communalisation of the polity and society in Jammu and Kashmir. The whole spectrum of developments in the arena of high politics—Islamisation of the azadi plank; marginalisation and replacement of the militants of Kashmiri origin with the 'Islamic warriors'; the militants' inroads into the Muslim-dominated districts of the Jammu region and the series of massacres of Hindus; religious 'cleansing' of the Valley and eviction of the Pandit community; the changing political alignments, particularly the National Confer-ence-BjP alliance; the voting patterns of Jammu and Ladakh regions in the last two general elections—all point in the same direction.
Most alarming is the proposed internal restructuring of the state into eight provinces carved along a Hindu-Muslim axis. This would legitimise the changing relationships forced on the communities—Kashmiri Muslims and Kashmiri Pandits, Ladakhi Buddhists and Shia Muslims, and Hindus and Muslims in Doda district—at the household, mohalla and village levels. All of these are dire forebodings. The complicity of the ruling political parties—the National Conference in the state and the BJP at the Centre—complicates the situation even further. Both fail to recognise that to give sanctity to religious nationalism and accord primacy to the political demands of communities based on their religion would not only strengthen the divisive forces within the state but also help Pakistan justify its claim on Kashmir on the grounds of the two-nation theory. A wiser strategy to satisfy the popular urges for self-governance lies in a thorough restructuring of the state's relationship with the Indian State and in creating new federal relationships within Jammu and Kashmir.
Kashmir's special status lies at the centre of this debate. Notwithstanding the fact that the National Democratic Alliance at the Centre does not endorse abrogation of Art. 370, the BJP leadership continues to advocate the divisive agenda on the grounds that the provision has hampered Kashmir's integration into the Indian mainstream. Some ideologues also suggest changing the 'state-subject' definition and altering the demographic profile of the Valley by settling large number of Hindus and Sikhs there. This pernicious strategy would certainly be counterproductive, and fortunately it will be difficult to implement.
The healing touch
Given the fact that, on the larger arena, the Indian State is willy nilly developing a confederate character, it would be the most natural ex-tension of this trend to reach back to Art. 370 and give complete autonomy to Jammu and Kashmir. This could mean reverting to the 1952 Nehru-Abdullah Agreement as spelt out in the State Autonomy Committee Report. It would be a forward-looking approach towards shaping Jammu and Kashmir's relations with the Indian State. This and not the much-violated past record must guide the plan for the future. The Centre would have jurisdiction over territorial security, foreign affairs, communications and currency, and all residuary powers would be vested in the state. The Governor should be appointed only with the consent of the state government, preferably from a panel of names suggested by the latter. The nomenclature of Wazir-i-Azam for Chief Minister and Sadr-i-Riyasat for Governor may also be restored because of their immense symbolic value. The jurisdiction of other provisions regarding the Election Commission, All-India Civil Services and the Supreme Court may be left open for renegotiation.
In the final analysis, there are only two choices. The first is to provide a healing touch to the Kashmiri psyche, meaningfully address the Kashmiris' social and economic grievances and grant them 'political azadi'. Though this may fall short of territorial independence, the expectation is that when the time comes to decide they will voluntarily opt to stay within the Indian Union. The second option is for New Delhi to continue using its coercive apparatus to force submission of the Kashmiris despite the volume of blood already shed. The best way to address secessionist and separatist demands lies not in fighting or suppressing the manifestations, but removing the raison d'etre.
There is no doubt that it was the imposition of political choices on the Kashmiris by successive Central governments and violent repression of local dissent which forced them on the path of secession. The solution, therefore, lies in creating a political system that allows a healthy social, cultural and political space for the Kashmiris through full-fledged and ungrudging application of Art. 370. But this will not be enough. An adjustment between the Centre and Jammu and Kashmir must be accompanied by creation of a federal structure within Jammu and Kashmir with three autonomous units in Jammu, Kashmir and Ladakh.
Meanwhile, the leadership in New Delhi and Islamabad should view the conflict from the people's perspective and not simply as a territorial dispute. If only they 'let go' of their iron grip over the respective territories of Jammu and Kashmir under their control, they might win back the loyalty and affection of the Kashmiris in a way that may prove more lasting than the forced integration being tried out on both sides of the border. The blueprint for reconciliation between Jammu and Kashmir and the Indian State within a 'federalist discourse' presented above could be accompanied by a similar exercise across the Line of Control, with Pakistan allowing complete autonomy to the areas in Azad Kashmir and the Northern Areas under its control. This would create room for a meeting ground within an inclusive framework of co-confederation, with India and Pakistan sharing 'twin sovereignty' over a demilitarised and unified Jammu and Kashmir, as it was under Dogra rule during the colonial period. Internal autonomy for Jammu and Kashmir and Azad Kashmir and the Northern Areas and a porous border creating spaces for free and visa-free social, cultural and commercial relations within twin Indian and Pakistani sovereignties would "confer azadi, self-determination and democratic rights on both".
The task is no doubt enormous, but so has been the historical pain of Jammu and Kashmir. The political will of the Indian polity to remodel state structures and transform the relationship with the sub-national identities is also on test. Mahatma Gandhi's words bear a ring of truth even today: "Kashmir will be the title as well as the test of India's future."
The Kashmir divides
The long-standing dispute over Kashmir between India and Pakistan has restricted the understanding of the problem. The Jammu and Kashmir State is equated with Kashmir Valley, and the Valley with Kashmiri Muslims. The 'Kashmir issue' is thus presented as an intractable 'territorial dispute' between two belligerent neighbours, or, at best, as the Kashmiris' struggle for an independent state of Jammu and Kashmir. Little is known about the plurality that exists within Jammu and Kashmir, with diverse communities such as Gujjars, Bakkarwals, Kashmiri Pandits, Dogras and Ladakhi Buddhists—for whom the right of self-determination as demanded by the Valley inhabitants holds little appeal. Even less is known about their political aspirations, with each community engaged in a little battle for its socio-cultural identity and creating its own political space. Thus, in Ladakh, the Buddhists of Leh are arrayed against the Kargil Muslims, and in Jammu the Gujjar versus Pahari issue has acquired political overtones. Meanwhile, the Pandit community has been banished from the Valley. It is wrong to subsume these diverse communities and their inter-relationships under the sweeping and overarching category of 'the Kashmir conflict'. Kashmir is much more richer, complex and multi-layered than that.
Redrafting exercise
The Indian State is under growing pressure for a redrawing of the political map. This demand is partly due to the increasingly assertive voices for regional and sub-regional identities within states, and partly because of the unwieldy and unmanageable size of India's larger states, where certain regions have flourished and others stagnated. In all, the demand for new states and/or administrative units exist within 14 states of the Union. These include Uttarakhand/Uttaranchal, Bundelkhand (with Madhya Pradesh districts), Purvanchal (Rohilkhand and Bundelkhand) and Bhojpur in Uttar Pradesh; Mithila (Bihar); Kodagu (Karnataka); Kosal Kajya (Orissa); Maru Pradesh/ Marwar (Rajasthan); Gorkhaland (West Bengal); Bodoland (Assam); Jharkhand (Bihar, Orissa and Madhya Pradesh); Chattisgarh, Gondwana and Bhilistan (Madhya Pradesh); Telangana (Andhra Pradesh); Vidarbha and Konkan (Maharashtra); and Jammu (Jammu and Kashmir). Others seeking separate administration include the Garo tribals and Hmar tribals in Meghalaya and Assam, and Kukiland and Zomi tribals in Manipur, while the people in Karbi Anglong and North Cachar region too demand better democratic treatment and more representative polities.
A Fully Federal India
Even though it has survived mostly in its non-implementation, Article 370 of the Indian Constitution retains the power to excite the imagination because it provides a pathway to true federation of the modern Indian State. Thus, the Article's importance would potentially reach far beyond providing autonomy to Jammu and Kashmir, and provide the policy-makers of India with the confidence of using it as a tool to extend federalism in law and in spirit at a time when, complementarily, regionalising tendencies are apparent in Indian politics.
A primary cause of alienation in India today is the organisation of the nation-state, which emphasises a single, presumably unified, entity. Whereas it has become clear that this kind of homogenising cannot incorporate India's diversity… Jawaharlal Nehru's hope that the forces of modernisation would gradually sweep away the primordial loyalties of individuals and communities has been belied by the live dynamics of Indian politics, where instead such loyalties have been strengthened and exploited for every kind of political mobilisation. The nation-building project which sought to create a pan-Indian identity has gone awry.
The Central mindset that diversity is a threat lies at the root of the various secessionist movements by sub-national groups. The alternative therefore seems to lie in devising a matrix where all sub-national identities coexist and together make up the Indian identity. The Indian State would develop a loose confederate character, a 'federation of federations'. This decentralisation would include social, economic, political and cultural arrangements. The radical reworking scheme would have to be bottom-up, whereby the states and regions may feel that they have voluntarily come together to create a new Centre.
Along the lines of what Art. 370 proposed to do for Kashmir, the Seventh Schedule of the Constitution may be reworked whereby only matters of national importance such as territorial security, foreign affairs, communications and currency fall within the Centre's jurisdiction. The President of India's power to impose central rule on states would be permitted only under circumstances of war or financial crisis. An inter-state council would ensure regular consultation and coordination among the states and between the Centre and states.
This is not enough. The states of the federation must themselves become federations and devolve power to sub-state units and Panchayati Raj institutions, which go right down to the village tier. While panchayats have by now been accorded constitutional legitimacy in India, new sub-state formations such as elected regional councils, autonomous hill councils or autonomous tribal councils must be set up depending on the specific features and requirements of each state.
The agenda for rethinking the philosophy of Indian nationalism and overhauling the federal and political architecture is ambitious. But is it Utopian? The Indian State is presently in the midst of a historical widening and deepening current of regionalisation. Having successfully mobilised the linguistic, ethnic, cultural and regional identities in the states in the 1980s, regional political parties are now engaged at the Centre stage. Since the United Front government of June 1996, comprising 13 regional and state-based parties, the formation of the Central government has devolved to the regions. Even as a votary of the monolithic Hindu nation-state, the present Bharatiya Janata Party government, formed in 1998, is itself a coalition of 16 political allies, out of which at least six are avowedly regional outfits, from Punjab, Tamil Nadu, Maharashtra, Andhra Pradesh and Haryana.
This dramatic shift from a dominant party system to minority and multiparty coalitions at the Centre and states reflect the evolving regionalisation of the last two decades. Clearly, as the regional takes precedence over the national, in the future regional forces may actually help in holding the Indian polity together by allowing, as one scholar said, "a device for managing social and regional pluralism". States have thus emerged as the new pathways to power, a decisive change from the first three decades of Independence when the Centre was the avenue of choice.
Liberalisation and economic reforms are aiding and accelerating this shift of power from the Centre. This is happening as the states compete to attract foreign investment and establish tax structures and institutional mechanisms for clearance of projects. After industrial deregulation, the number of industries remaining under central government control has shrunk to only eight.
With regard to the structures of the states themselves, the process of evolving a participatory multilevel governance has been ushered in by the 73rd and 74th Constitutional Amendments, according constitutional status to panchayats as institutions of self-government at the district and sub-district levels. The introduction of this third stratum in governance has opened new vistas of opportunities of local self-government.
While the third layer is thus ready, the creation of a response structure of governance at the second level may well lie in learning from the spirit of Art. 370 its methodology of creating intermediate state structures and, in some cases, in application of the specific model of the article in these states and territories.