“At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom” were the iconic words of India’s first Prime Minister, Jawaharlal Nehru, on the eve of the country’s independence from the British empire.
However, 72 years later, the midnight hour signified something very different for the state of Jammu and Kashmir and its people. The government of India, before dawn on Monday, imposed Section 144 in the capital city of Srinagar, which meant the shutting of schools and the banning of public movement, as well as the prohibition of all public or political gatherings until further notice. Internet services were shut down, and the political leadership was put under house arrest. The night was marked by complete uncertainty for citizens of the valley, while the government didn’t offer any clarification.
For a people who are no stranger to bomb blasts, Kashmiris woke up to the biggest bomb yet dropped on them the next day, as Minister of Home Affairs, Amit Shah, moved a resolution in the parliament to revoke the state’s special status granted through Article 370 and 35A of the Indian constitution, by way of a Presidential notification.
What was in the articles?
The two articles laid down Kashmir’s peculiar position in the Indian constitution, with the former included in the “Temporary, Transitional and Special Provisions” section, and gave the state the right to draft its own constitution, with defense, communications and external affairs to be rested with the centre, with consultation from J&K. For any other matters, concurrence of the state government was made mandatory. Meanwhile, 35A defined permanent residents, and allowed them to own property in the state, or be eligible for government jobs and scholarships.
The new bill bifurcates the state into two union territories, Ladakh and the rest of the area, of which only the latter will have a legislative assembly. Meanwhile, the carving out of Ladakh – the region with a population roughly split between Shia Muslims, Buddhists and Hindus – will see Delhi rule over it directly, and seems to be guided by a twofold strategy: disenfranchising the majority Muslim population of Pakistan-bordering Kargil and electorally distinguishing the Hindus and Buddhists of Ladakh who are largely pro-India and anti-Article 370.
As for the remaining territory, the latest Bharatiya Janata Party (BJP) move threatens to change the demographics of India’s only Muslim majority state, by allowing outsiders to own property or obtain employment under state government.
A mockery of democracy
No debate was held, despite protests from the opposition, as BJP found a loophole in the Article 370 which says that it can only be revoked with a Presidential notification, with concurrence of the State’s Constituent Assembly. However, Kashmir currently doesn’t have an assembly, as it was dissolved by the centre and replaced by governor rule with BJP’s own man. Therefore Modi and his government took the liberty to substitute the term “assembly” with the “government”. On Aug 6, the lower house of parliament passed the Jammu and Kashmir Reorganisation Bill by 351 “ayes” to 72 “nos”, with one abstention.
The entire process was a mockery of democracy as, days before the move, the Indian government deployed 38,000 additional paramilitary forces in the valley, which is already the most militarised region in the world per capita, with over 500,000 soldiers. And instead of taking the local leadership into confidence, after the resolution in the upper house, the government arrested two former chief ministers who lead major political parties and didn’t bother to consult any other state stakeholders. Internet and other services are still down, and even The Hindu reported that its Srinagar reporter couldn’t send his despatch due to no connectivity.
How it impacts Kashmiris
Cloaked under the rhetoric of bringing investment into the Valley and integrating it with the mainland, the ruling party wants to dilute the distinctively Muslim character of the state, by encouraging not only Kashmiri Hindu pundits, who had fled to other parts of India in the wake of insurgency in 1980s, but also non-Kashmiris to move to the state. Such a change would increase the chances of having, for the first time in history, an elected non-Muslim chief minister and a greater strength in the new legislative assembly.
This recent move by the BJP shouldn’t come off as a surprise, since its leadership has long promised a unified constitution for all citizens, doing away with Kashmir’s special status. In fact, scrapping the two articles was part of the party manifesto in 2019 elections. But this is not the only state in India to enjoy such privileges. In the northeast, many states – such as Nagaland and Mizoram – do not allow outsiders to buy any property either. In fact, just the very next article in the constitution, 371, deals with privileges relating to matters ranging from civil service, religious laws or criminal justice of other states such as Andhra Pradesh, Sikkim etc. What was it then that made Kashmir such a controversial and important issue? There are two reasons: firstly, it is the only Muslim majority state and secondly, its connection with Pakistan, and along with it, the separatist movement, makes it different from any other place in India.
Jammu and Kashmir is a territory disputed by both India and Pakistan in its entirety, and has long been a bone of contention between the two countries, who have fought three wars over it. At the time of Indian partition along religious lines in 1947, Kashmir – a princely state – could choose either of the new states or independence. Just days after the British withdrew from the country, the newly created neighbours went to war over the valley, which was stopped after a UN ceasefire. Whatever territory was amassed by the two became the ceasefire line – the de facto border – which, after 1972, was redesignated as the Line of Control that is currently in place.
Kashmir’s erstwhile ruler, Maharaja Hari Singh, whose ancestors had bought the valley’s land from the British, signed the instrument of accession with India, giving the centre authority on external affairs, defense, and communications, while keeping other matters internal. That special status was cemented in the 1949 constitution through Article 370, and later Article 35A, included through a presidential order in 1954.
Pakistan’s Foreign Office immediately issued a statement condemning the unilateral Indian move, terming it a naked occupation, while the army chief said that the country will “go to any extent” to support the people of Kashmir. This is a particularly challenging test for the PTI government, which so far has had a number of foreign policy successes.
Prime Minister Imran Khan in assembly warned that BJP’s dangerous tactics like these would encourage further home-grown militant attacks, such the Pulwama, which could escalate to full-blown war that the two nuclear nations cannot afford.
The legal question
To make matters even more complicated, the issue isn’t an internal matter of India, as Pakistan also lays claim to the Valley. Jammu and Kashmir is recognised as a disputed territory by the United Nations, to which both India and Pakistan are parties. In that case, would a unilateral move, with or without parliamentary approval, that not only strips the constitutional status of such a region but also split it hold legal ground? The experts in this matter have partisan takes along their country’s lines and, as far as the UN is concerned, the response has been the same old “both sides should exercise restraint”.
Even domestically, there are clouds over the legality of the entire exercise. Numerous court rulings have directed that due to Kashmir’s complicated status, Article 370 is indeed permanent and can’t be amended, repealed or abrogated. Moreover, a presidential notification issued without the recommendation of an elected state assembly could also potentially be a legal fault-line but that’d be up for the Indian courts to decide, which could take decades.
Until then, Kashmir remains cut off from the rest of the world, with most of us having no way to find out what’s going on inside the valley through local sources. The latest stunt from Delhi is expected to alienate even the most pro-Indian Kashmiris, which could lead to a far greater support for a militant separatist movement that has already long enjoyed widespread popularity.