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EFSAS Commentary

India revoking the Special Status of J&K - Betrayal of history

09-08-2019

Described variously by Indian politicians and commentators as a black day in the constitutional history of India, a sinister decision, a murder of democracy, and an assault on India’s federalism, the Indian government’s decision to defang Article 370 of its Constitution, which gave the state of Jammu and Kashmir (J&K) its special status and the consequent autonomy, through a highly devious and dubious procedure, is without question the biggest betrayal that the people of Kashmir have endured at the hands of the Indian State. It is also undoubtedly true that this decision of 5 August was preceded over the years by considerable dilution of the autonomy assured to Kashmiris by Article 370 through 44 amendments by successive Indian governments. This had led to erosion of the trust of the people of the state, especially those living in the Kashmir valley, and fuelled discontentment and alienation. Now, by virtually scrapping Article 370 altogether, this Indian government has broken the solemn pledge made by the Indian State to the people of Kashmir in 1947, at the time that they chose to remain with India. 

Atal Bihari Vajpayee, the former Indian Prime Minister (PM) and arguably the tallest statesman that the Bharatiya Janata Party (BJP) has produced, had in 2003 famously coined the doctrine “Insaniyat (humanity), Jamhuriyat (democracy) and Kashmiriyat (inclusivity of the cultural values of Kashmiris)” as the cornerstone of his policy towards J&K. He had won Kashmiri hearts through enunciation of this visionary framework. Vajpayee’s own party, the ruling BJP, has over the last week torn each of the three elements of Vajpayee’s formulation to shreds. 

The manner in which the Indian government went about implementing its ill-conceived and contentious decision was anything but humane. Brinda Karat, a Politburo member of the Communist Party of India (Marxist) and a former member of the Indian parliament, described this eloquently when she said that “In the rest of India, we have the right to discuss Kashmir, a cacophony of voices resound in TV studios; the only people who have no such right are the people of Kashmir. Their home is broken and divided, there has been a forcible acquisition of their rights, leaders have been arrested, all communication with the outside world has been deliberately snapped, but still they are not allowed to speak. How would you feel in such a situation? Frustrated, betrayed, angry, helpless, fearful, outraged-which of these, or all of these, emotions would have coursed through your mind, your heart, your body? The voices from Kashmir have been silenced, through the use of curfew, the posting of over 40,000 armed personnel sent from outside the state, the display of bayonets and guns, the imposition of Sec 144. You cannot integrate the people of Kashmir with India, the proclaimed aim of the laws pushed through by the Modi government, by force and coercion. This is not integration - this is occupation”

As for democracy, all accepted norms and practices were thrown to the wolves. The decision was taken at a time when the state of J&K was placed under President’s rule, the state’s Assembly had been dissolved, and an appointed representative of the central government, the Governor, held sway. All major political leaders of Kashmir were rounded up by Indian security forces a couple of days prior to announcement of the decision. The Indian parliament was not even informed prior to the government’s decision to strip a state of the autonomy that it had been promised and constitutionally assured. Equally importantly, the state of J&K was, without any reference to the people of the state, bifurcated into two Union Territories to be governed from New Delhi. Karat described this as “an outright attack on the principles of federalism and minimum democratic rights…. India is a union of states with equal rights. If any matter pertains to the state, it has to be discussed by the state assembly and its elected representatives. If any of the boundaries of the state have to be changed, such as occurs when a state is divided, there is a constitutional procedure which has to be followed. But none of this was applied to Jammu and Kashmir”. In addition, as will be brought out later, the procedure adopted by the Indian government to wring the changes to the status of J&K was unconstitutional and legally unsound at one level, and morally and ethically repugnant at another. 

As for Kashmiriyat, every tiny detail of the Jammu and Kashmir Reorganization Bill that the Indian government implemented went against what the people of Kashmir were clamoring for, and was anathema to them. Locking up Kashmiri political leaders even before implementation and ensuring that the people of the state remained cut off from all news and modes of communication reeked of distrust and was the antithesis of Kashmiriyat. Further, the Princely State of Jammu & Kashmir that signed the Instrument of Accession with India in 1947 has, through this Indian move, been effectively further sub-divided, something that all Kashmiris loathe. In 1970, the territory of present day Gilgit-Baltistan, which is part of the Pakistani-Administered portion of Jammu & Kashmir, was mischievously made into a separate administrative unit in Pakistan under the name ‘Northern Areas’. India has not just bifurcated the state of J&K, but has reduced it to a Union Territory. For Kashmiris, this is nothing short of demeaning, undemocratic, and psychologically unacceptable. 

Despite some sections of Indian politicians and the country’s legal fraternity opining that the Indian government’s decision was an act of legal genius, the reality is that the changes to J&K’s status were hammered through by the government in a patently unconstitutional and unethical manner. It will not have the legs to stand up to scrutiny in any unbiased court of law, just as it fails the test of common sense. Senior Advocate and constitutional expert Jaideep Gupta summed up the legal position thus, “Under Article 370, a presidential order can be passed after a recommendation by the constituent assembly (of J&K). Since the constituent assembly for the state of Jammu and Kashmir was wound up in 1957, giving effect to this condition becomes impossibility. A prudent approach is that the functions are transferred to the state assembly. But questions can always be raised that in the absence of a state assembly, can the governor of the state exercise the extraordinary functions like expressing the will of the people? Ordinary functions of the assembly can be exercised by the governor, but on a grave issue like 370, questions can be raised”. Supreme Court advocate Viplav Sharma also expressed serious reservations about the Governor, an outsider and “a person widely seen as the Centre’s nominee”, being allowed to express the will of the Kashmiri people.  

Further, the legality of pushing through a bill that reorganized the state of Jammu and Kashmir and bifurcated it in two separate union territories, Ladakh and Jammu and Kashmir, without the concurrence of an elected state government, is not only highly questionable but also legally untenable. It also raises serious fears about the sanctity of India’s constitutionally-mandated federal structure. Journalist Rohan Venkataramakrishnan wrote in the Scroll, “Never mind having a voice on the matter, the move is being carried out while the people of the state and their leaders have been effectively gagged, since all communication and public assembly has been shut down in most of the state….. As a number of Opposition leaders have pointed out, what is to stop the Centre from doing the same elsewhere? The Constitution gives the Centre power to alter or create new states, and the President’s Rule technicality means that the state can ratify this change without actually asking its representatives or the people. Today, the BJP-led government is proposing to demote Jammu and Kashmir to Union Territory status without the concurrence of its people, without a good explanation for why. Tomorrow, if it is unhappy with the opinions of people in Kerala or Tamil Nadu or West Bengal, what is to stop it from taking away their democratic rights too?” 

Despite this threat that now hangs over Indian states, most state-specific regional political parties have backed the Indian government’s move, as have a large section of the Indian population. Analysts would argue that the sharp rightward curve of the Indian political trajectory as well as the government’s justification of its actions as being aimed at ensuring good governance and development, curbing corruption and nepotism, and tackling the menace of terrorism, would have earned the people’s endorsement. Equally important, however, was the feeling among a growing number of Indians that too many privileges were enjoyed by a state in which many constantly questioned their affiliation to India. 

That said, a number of Indian political parties, intellectuals, analysts and commentators are not on board with the government’s moves. Congress leader Rahul Gandhi opined that “national integration isn't furthered by unilaterally tearing apart J&K”, while his party colleague and former home minister P. Chidambaram said in the Rajya Sabha, the Upper House of the Indian parliament, “We anticipated a misadventure, but did not think in our wildest dreams that they will take such a catastrophic step. Today is a black day in the constitutional history of India”. Trinamool Congress leader Derek O’Brien said that the abrogation of Article 370 as well as the bifurcation of Jammu and Kashmir was an assault on India’s federalism. Samajwadi Party President Akhilesh Yadav stated that “A country runs on consensus and all parties should have been consulted and taken into confidence. Putting leaders under house arrest or exerting pressure on people is not correct”. 

Among Kashmiri politicians, former J&K Chief Minister Mehbooba Mufti said those who had participated in India's democracy had been “pushed to the wall”, and that “we the people who had faith in the constitution of India have been proved wrong. We have been let down by the same nation we ceded to…. This constitutional relationship has been turned into an illegal occupation. So that is what we are going to be fighting about now”. Another former J&K Chief Minister Omar Abdullah said that “Government of India (GoI)’s unilateral and shocking decisions today are a total betrayal of the trust that the people of Jammu and Kashmir had reposed in India when the state acceded to it in 1947. The decisions will have far-reaching and dangerous consequences. This is an aggression against people of the state as had been warned by an all-parties meeting in Srinagar yesterday”.

Looking beyond the political victory that the BJP scored through the Jammu and Kashmir Reorganization Bill, India may well find itself in more than a spot of bother because of its ill-considered actions. Goaded by Pakistan, which has reacted strongly to the Indian move and expelled the Indian High Commissioner from Islamabad, the international community is almost certainly going to be more invested on the Kashmir issue than it has been over the last few years, even decades. The United Nations Secretary General (UNSG), Antonio Guterres, in a statement on 8 August cautioned against changing the status of Jammu and Kashmir and backed Security Council resolutions on the region. Guterres’ Spokesperson Stephane Dujarric said, “The Secretary General calls on all parties to refrain from taking steps that could affect the status of Jammu and Kashmir…. The position of the United Nations on this region is governed by the Charter of the United Nations and applicable Security Council resolutions…. While calling for maximum restraint, the Secretary General is also concerned over reports of restrictions on the Indian-side of Kashmir, which could exacerbate the human rights situation in the region”. The Secretary General's office circulated to members of the Security Council a letter written by Pakistan's Foreign Minister to Guterres on August 1 expressing concern over the situation in Kashmir. Pakistan also asked Guterres to set up a ‘fact-finding mission’ for Kashmir and to appoint a special representative. Through diluting Article 370, India may well have provided Pakistan the ammunition to wake the UN out of its slumber on J&K. 

Although sections of people in the Kashmir valley might be looking towards Pakistan, it must be noted that that is a delusional thought. Pakistan has betrayed the trust of the people of J&K numerous times and has proven umpteen times not be a friend of the people of J&K; The country invaded the Princely State of Jammu & Kashmir in 1947 in violation of a signed Standstill Agreement, annexed parts of it, then established its writ over Pakistan Administered Jammu & Kashmir through the Karachi Agreement in 1949, ceded a part of J&K to China in 1963, revoked the State Subject Rule in Gilgit Baltistan in 1974 and started its proxy war in J&K by supporting, financing and training terrorists causing the death of thousands of people while rupturing the social fabric of the state.   

The United States (US) and China have both expressed concern over India’s actions and have indicated that they view the issue of Jammu & Kashmir as an international dispute and not India’s internal matter, as the Indian government has claimed all along. Publications such as the New York Times (NYT) have already called for the US and China to join hands in countering Indian actions. It said, “The United States and China must not allow Kashmir to become a pawn in their ongoing disputes. On the contrary, they must urgently do what they can to prevent India’s folly from escalating into a perilous and unpredictable regional crisis”

The gains from India’s diplomacy and international outreach that had effectively led to the calling out of Pakistan as a sponsor of terrorism may also come under stress in the coming months, especially if the situation in J&K takes a turn for the worse. Pakistan will almost certainly look to counter India’s decision, which has effectively rendered the need for India to engage with Pakistan on the status of Indian-Administered Jammu and Kashmir redundant. The option likely to be taken by Pakistan, however, beyond drawing international attention to the situation in Kashmir, remains a reversion to full scale deployment of its terrorist proxies in J&K and the rest of India. The possibility of international terrorist organizations such as Al Qaeda and ISIL, which have already demonstrated their presence in the Kashmir valley, fishing in troubled waters can, also, not be ruled out.

The clampdown that is currently in place in J&K will have to end at some stage. The reaction then of the people of the Kashmir valley to the abrogation of their autonomy will be the litmus test of the acceptability and success of the Indian government’s moves of 5 August. If the Indian government’s assessment that promises of economic betterment and good governance would trump the physical and psychological trauma of loss of special status and autonomy, not to mention breach of a pledge, proves to be correct, then its risky move would have paid off. But despite the massive build up of troops in the state, to expect Kashmiris to passively accept their predicament would at this stage appear to be wishful thinking. Non-violent demonstrations and protests are bound to take place, as are incidents of stone pelting. Transgressions by Indian security forces in response will come under a magnified scanner, as is evident from the initial reactions of international human rights organizations to the striking down of J&K’s autonomy. A much larger number of Kashmiri youth joining terrorist groups and embracing radical ideologies is another serious threat that India may have brought upon itself.

India, quite obviously, did not delve deep enough on where its moves of ending J&K’s autonomy would leave those within Kashmir that had stood by India over the years braving outright hostility from Pakistan and its terrorist proxies. They had contributed substantially to lending credibility to India’s narrative on Kashmir. India’s Kashmiri friends have, without warning, been turned into incredulous mute spectators, let down by those whose backing they had relied on. Without local friends, India will find Kashmir to be a lonely, even cold, place.

While India has announced through its move that Indian-Administered J&K is not a disputable territory as far as India is concerned, it is equally true that having divided J&K further and having brought it under greater central control, India may have somewhat diluted its otherwise legally sound claim on Pakistan-Administered J&K. This could lead India’s erstwhile friends in J&K to question whether instead of abrogating the autonomy of J&K, which was essentially a soft option as it involved mainly people already owing allegiance to India, it may have behoved the Indian government more to achieve what ought to be its real aim – to win back the parts of J&K over which India has clear title but no territory. 

Instead of further dividing J&K, India ought to have fought the real battle to wrest back the parts of Kashmir that are legally its but are held and governed by Pakistan. That would have resolved the J&K issue to India’s satisfaction once and for all, while also reuniting all the people of the erstwhile Princely State.