The moral context of Article 370

THERE has been an avalanche of commentaries attacking the Supreme Court Constitution Bench’s verdict on the abrogation of Article 370, prompting one to wonder whether some of them were written by the ghost of Adlai Stevenson (more about him later). All public pronouncements of constitutional bodies, or rather every pursuit of public good, must be built on the firm foundation of morality. Arguments of legality and procedure become insignificant if what is legal is immoral and false.

Sheikh Abdullah’s betrayal was the end of the Gandhian dream of Kashmir becoming the beacon of Hindu-Muslim amity.

Hence, it is imperative to examine the moral context of Article 370 and the special status for Jammu and Kashmir. The last two volumes of The Collected Works of Mahatma Gandhi throw light on the circumstances that shaped the framing of the Constitution, especially the Kashmir question. The word ‘Kashmir’ appears 117 times and ‘Sheikh Abdullah’ 40 times in Volume 97 for the period from September 27 to December 5, 1947, which covers the Pakistani invasion of J&K and Maharaja Hari Singh’s signing of the Instrument of Accession.

Here is an instance: “I do not believe in armed fighting, but I must know what it is. On the one hand are 1,500 Indian soldiers and on the other all those Afridis and others. And there is Sheikh Abdullah. He is called the Lion of Kashmir… He is doing what a single individual can do… He would not let the Hindus and Sikhs there die before the Muslims. What if the Hindus and Sikhs are in a minority there? If this is the attitude of the Sheikh and if he has influence on the Muslims, all is well. The poison which has spread amongst us should never have spread. Through Kashmir that poison might be removed from us… Now Kashmir is in the hands of Sheikh Abdullah. He regards the Hindus, Muslims and Sikhs as his brothers.” Gandhi said this on October 29 at his prayer meeting, just a week after Pakistan attacked.

The only moral thing for Gandhian nationalists to do in that blood-soaked dawn of Independence was to have hailed the lone Muslim leader and his people who were giving them hope that Hindus and Muslims could live together as one nation. Only Sheikh Abdullah and Kashmiri Muslims stood between Indian nationalism and the British two-nation theory. India, then and now, cannot be divided in every district. The spread of the communal poison had to be stopped. And Gandhi rightly believed that “through Kashmir that poison might be removed from us”. So, Kashmir was special. It had a special status in the hearts of every nationalist then because, despite anti-Muslim riots in Jammu, there was no retaliation in the Kashmir valley.

Sure, Gandhi lionised Sheikh. But it was not just Gandhi; even refugees who lost everything to Islamist violence in West Punjab listened to him. On Guru Nanak Jayanti, Sikh leader Baba Bachittar Singh took Gandhi to Chandni Chowk along with Sheikh Abdullah. “I asked him how Sheikh Abdullah could come there since the Sikhs and the Muslims could not bear to look at one another. But he said that Sheikh Abdullah had done one great thing. He had kept the Hindus, Sikhs and Muslims united in Kashmir and created a situation in which they would wish to live and die together,” Gandhi reported to his gathering on November 28, 1947.

This was the glue the nation-builders desperately sought, and it was integral to Sheikh’s brand of nationalism — anti-colonial, anti-feudal, pro-people and, most importantly, it was built on the principle of Hindu-Muslim amity. The slogan Mahatma Gandhi ki jai was often followed by Hindu-Mussalman ki jai. Here was, finally, another leader worthy of similar adulation as an apostle of Hindu-Muslim amity. The concessions in Kashmir were for the greater good of the nation and beyond. If Kashmiri Muslims can live and prosper in the Indian Union, why not Sindhi Muslims or Baluchi Muslims? And all of them could be offered special protection and a special status. Could there have been a greater means to defeat the two-nation ploy than the people’s will expressed through communal amity? That was the moral context of Article 370.

But Sheikh himself defeated this idealism in 1953 when he conspired to create a separate “independent Kashmir”, using the Muslim identity as a secessionist tool. Sheikh discussed the contours of an independent Kashmir when he met a top US politician, Adlai Stevenson (who was a Democrat presidential candidate twice). India’s pre-eminent historian Ramachandra Guha, in his 2004 article Opening a Window in Kashmir, wrote: “A Bombay journal known to be sympathetic to America reported that Stevenson had assured Abdullah of more than moral support. A loan of $15 million could be available if Kashmir became sovereign; besides, ‘the Valley would have a permanent population of at least 5,000 American families’, houseboats and hotels would be filled to capacity, Americans would buy the crafts output of dexterous Kashmiri artisans, and within three years every village would be electrified.”

With Americans pushing the two-nation theory (which then Assistant Secretary of State Robin Raphel vigorously did again in the 1990s) and Sheikh becoming a willing accomplice, the moral foundation of Article 370 crumbled. Instead, it became a political weapon to legitimise the “separateness” of J&K, which could thereby validate Islamist secessionism. Sheikh’s betrayal was the end of the Gandhian dream of Kashmir becoming the beacon of Hindu-Muslim amity. In fact, in a letter written two days before his assassination, Gandhi expressed the premonition: “Sheikh Abdullah is a brave man. But one wonders whether he may not betray in the end.”

After the eruption of Islamist secessionist killings and the expulsion of Hindus, the Kashmir valley became a symbol of constitutionally sanctioned communal estrangement. Thus, Article 370 became a morally illegitimate appendage that stamped Muslims as a separate nation. Every Islamist killing in the name of azadi ate into the innards of this constitutional provision, leading to a landslide of communal polarisation, which resulted in the will of the people getting expressed in Parliament.

Now, after the verdict, one cannot but quote Ram Manohar Lohia: “I only want that the Hindus and Muslims should be welded into a single nation and whatever developments take place in Kashmir, I shall test them by that criterion.”