Photo credit: Kashmir Global
An air of fear and gloom is not unusual in Jammu and Kashmir (J&K). Among the most highly militarized regions of the world, it has found itself at the centre of a protracted inter-state conflict between South Asian neighbours, India and Pakistan, as well as an ongoing separatist insurgency since the mid-1900s. However, on August 4, 2019, as tensions escalated in the Kashmir Valley yet again, it soon became evident that this chain of events was anything but routine.
The following day, Amit Shah, the Indian Minister for Home Affairs, delivered a statement in the Upper House of Parliament, announcing a series of legal measures, effectively de-operationalising Article 370 of the Constitution of India. Article 370 granted the state of J&K its autonomous status: the right to form its own Constituent Assembly (and consequently, its own constitution) and restricted the application of laws passed by the Indian Parliament to the state unless consented to by the state government. Clause 3 of the unamended Article 370 required the President to seek permission or recommendation from the Constituent Assembly of J&K prior to scrapping the article. With the latter being dissolved in 1957, the law was largely interpreted as being irrevocable. In light of this, the means used by the Narendra Modi-led government to scrap Article 370 are, one could say, far from conventional. Here’s how:
Clause 1 of Article 370 allows the President to apply and/or modify constitutional provisions with respect to the state, with the concurrence of the state government. Consequently, invoking the authority granted by Article 370(1), Article 367 of the Constitution (which lays down guidelines for how the Constitution is to be interpreted) was amended by way of a Presidential Order, to add a fourth sub-clause, which construed references to the Government of J&K as the Governor acting on behalf of the Council of Minister of the state, and those to the Constituent Assembly, to refer to the elected Legislative Assembly. Here is where things get murky: Given that J&K has been under President’s Rule since last year following the dissolution of its legislative assembly, all executive authority lies in the hands of the state’s Governor (who is, for all intents and purposes, an agent of the Centre). This implies that all powers and functions of the state government are exercised by the Centre and in effect, this Order was consented to by Central Government in Delhi, without Kashmiris and their elected representatives having any say.
Following this, a statutory resolution was moved (with the National Parliament acting as and on behalf of the J&K Legislative Assembly) wherein all but one of the clauses was nullified. Clause 1 was retained; amended to apply all provisions of the Indian Constitution to the state. The resolution also introduced the Jammu and Kashmir Reorganisation Act 2019, which split the state into two Union Territories to be governed by a Lieutenant Governor: Jammu and Kashmir, with a legislative assembly, and Ladakh, without one, further strengthening the Central Government’s control over the region. This increasing centralisation of power has been characteristic of the Modi-led government since it came to power in 2014.
Thus, paradoxically, the government used Article 370 to render the same defunct. Creative as it may be, there can be little doubt that these measures constitute a legal sleight of hand. While the government’s brute majority in Parliament ensured that the bill pass with little resistance, its passage does not take away from the fact that the legalisation was bulldozed through parliament with little regard for procedural norms and propriety: It was not made available to the members in advance, was not part of the Upper House’s List of Official Business, and little time was devoted to discussing the measures in Parliament. What’s more, these events occurred as Delhi imposed a telecommunications blackout in Indian-administered Kashmir, placed mainstream Kashmiri politicians, who have long served as interlocutors between Kashmir and Delhi (including former Chief Ministers Omar Abdullah and Mehbooba Mufti), under “preventive” arrest, and sent tourists and pilgrims back home. Additionally, the scraping of Article 370 undermines the Instrument of Accession, signed by the erstwhile Maharaja of J&K and the then Government, permanently altering the relationship of the State with the Union of India, and eliminating the symbolic bridge that connected Kashmir to India.
The Bharatiya Janata Party (BJP) government’s rhetoric has been that the presence of Article 370 and special autonomy has denied J&K the benefits of economic growth and development reaped by other parts of the country, hindered its integration with the Union, and caused terror to brew in the Valley. The party vowed to scrap the provision in its 2019 manifesto. The reality, however, tends to tell a different story: J&K performs better on various socio-economic indicators when compared to various other states.
Furthermore, J&K was not the only state which enjoyed a special status: Article 371 of the Constitution extends special provisions to multiple northeastern and southern States. Various states also have policies which favour residents over non-residents in areas of education and employment. Asymmetrical Federalism has long been a characteristic feature of the Indian Union, one which has protected the territorial integrity of the country and facilitated the sustenance of a vibrant (albeit imperfect) democracy despite multiple ethnic cleavages. Considering that Article 370 had been severely diluted over the years, and a large number of Central laws were already applicable to the state, the means employed to bring about this move, as well as the ends it seeks to achieve, are highly questionable.
Of integral importance to the discussion here are J&K’s religious demographics: It happens to be the only Muslim-majority state in a country where about 80 per cent of the population is Hindu. Hence, this move by the BJP may be viewed as merely the fulfilment of its long-standing Hindu nationalist agenda. Some in the Valley fear that the government seeks to alter the demographics of the region by promoting investments and migration at the expense of the Muslim population. Jingoistic proclamations in favour of the move, made across the country by BJP’s cadre, only serve to compound these fears. The scrapping of Article 370 is one in a list of steps, including Triple Talaq Bill, The Citizenship Amendment Bill, and the National Register of Citizen, which specifically target Indian Muslims. Together, these provisions violate both the letter and the spirit of the Indian Constitution: By peddling an exclusive, ethnic nationalism, they go against the secular, liberal ideals the Constitution commits the State to.
At the time of writing, Kashmir has been under what amounts to mass incarceration for almost two months, with telecommunications suspended, movement of goods and people severely restricted, and access to essential services denied. While the action has been legally challenged, the lack of urgency shown by the Supreme Court is concerning. The Indian government continues to try and sell the potential benefits of the scrapping of Article 370, while simultaneously alienating generations. As Kashmiri lives and livelihoods continue to be subject to brutal repression, both at the hands of security forces and militants in the region, and protests and violent clashes grip the Valley, peace remains but a fantasy.