The recent actions by the Government of India in Kashmir are an assault on the freedom, lives and lands of the Kashmiri people, but they also mark a powerful attempt to re-write what has always been a highly contested history of the Indian nation-state.
The Hindu right have long argued that Article 370 of the Indian Constitution stands in the way of the proper integration of Jammu and Kashmir into the Indian Republic. As with discussions about a Uniform Civil Code, to replace religious family law in India, right-wing Hindu’s language of legal assimilation works to both mask and stand in for a different kind of assimilation project, based on religious identity.
The Hindu right’s support of a Uniform Civil Code was framed as a specific assault on the ‘modernity’ of Indian Muslim personal law. It was argued that the failure of the post-colonial state to replace religious family law with a single code of ‘modern’ civil law, in spite of pledges to secure such an end at independence, reflected a pro-Muslim bias on the part of the Congress Party-dominated governments.
We can see a clear echo of this argument in the Hindu right’s condemnation of Article 370 as a legal measure brought in by India’s first Congress-led government to ‘protect’ the only Muslim majority state in the Republic.
Yet this is a grave, and wanton, misreading of the conditions that led to the inclusion of Article 370 in the Indian Constitution in the first place.
Jammu and Kashmir’s special constitutional status is a reflection of the violent conflicts and uncertainties that marked the end of British rule and the creation of the independent states of India and Pakistan.
Partition of the subcontinent was formally declared on 3 June 1947, leaving around nine weeks to plan for the complex political, social and legal logistics of dividing a united sovereign entity (something that Brexit negotiations have shown us is no easy task).
But Partition also raised questions about what would happen in parts of India in which Britain did not exercise direct sovereignty as it did in regions where Acts passed by the British Parliament had clear, legal binding. Up until 15 August, the degree to which the legislation being drawn up to facilitate British withdrawal through partition would actually apply to the Princely States was unclear. Neither the Indian National Congress nor the Muslim League, the two major political parties involved in the transfer of power negotiations, had had major standing in the Princely States before 1947, but both were now keen to claim control over as many affluent and strategic areas as possible.
In the negotiating and battling that followed, the particular histories, politics and dynamics of the Princely States were engulfed by the communal logic of partition. Muslim Kashmiris had spent much of the early part of the twentieth century protesting the autocratic dictatorship of the Hindu Maharaja and Dogra elites in the province. But while the divisions were marked by religious identity, this had not been a communal battle in any straight forward sense.
Sheikh Mohammed Abdullah, the leader of the popular Kashmir Muslim Conference, was a friend and supporter of Jawaharlal Nehru, the Congress leader and opposed the Muslim League’s call for separation.
In the chaos of British withdrawal and the scramble for power by the new governments, Nehru used this relationship to lay claim to Kashmir, against the communal logic of a partition that had been agreed on his terms.
That a Muslim majority province could become part of India became a means through which to argue for the superiority of Indian secularism. In this context, the freedom struggle of the Kashmiri people was eclipsed by new narratives of national strength and power that were realized through violent military actions in the first war between India and Pakistan only months after these states had been created.
The initial passage of Article 370 reflects the complex and highly disputed history behind India’s legal claim to power in Kashmir, but so too does the idea that it was intended as a ‘temporary’ measure.
The Article was intended to stand only until the State’s Constituent Assembly passed its own constitution. This has never happened for a variety of reasons that have much more to do with the contested, militarized nature of India’s presence in the region and not to any concession to its Muslim-majority population.
Revoking Article 370 is an attempt to erase the disputed history of India’s claim to Jammu and Kashmir. Ignore the Modi government’s language of legal modernity, this is not an act of strong democratic unity but an assertion of the supremacy of state power over the ‘demos’, and over law itself.
Dr Eleanor Newbigin is a Senior Lecturer in the History of Modern South Asia and a member of the SOAS South Asia Institute.