Saad Rasool explains how through a constitutional travesty in removing Article 370. Modi’s Hindutva government extinguished the democratic hopes of 13 million Kashmiris, making a complete mockery of the façade that was secular democratic India. However, within a year of the revocation of Article 370, Modi is out of friends, and out of options.
On August 5, 2019, as the fascist Hindutva government of Narendra Modi – drunk on its 2019 electoral victory and a burgeoning friendship with Donald Trump – revoked Kashmir’s autonomous status, guaranteed by erstwhile Article 370 of the Indian Constitution, many in Pakistan had claimed that this move would trigger the ‘end’ of ‘Incredible India’. This prediction seemed fanciful at the time. After all, how could it damage a progressive India, (ostensibly) democratic, and had friends in high places.
However, one full year since that fateful day in August 2019, India has been plagued by gruesome episodes of street violence, internal unrest, horrific persecution of minorities, the imposition of curfew Kashmir and various parts of the Union territory, uncontrolled spread of Coronavirus, loss of strategic assets in the region (e.g. Chabahar), and a border conflict with China that has resulted in loss of soldiers as well as (significant) territory.
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So, what precisely happened on Monday, August 5, 2019? Why has it resulted in the imposition of a year-long (and continuing) curfew in Kashmir? Why does it matter to Pakistan and China? Why has it expanded into a conflict in Laddakh that now forms the flashpoint between three nuclear states? How did it push India into the first (and only) ‘bloody’ conflict of the new Great Game in our region? And why have none of India’s international allies have come to its aid?
To understand these issues, it is important to first assess the precise constitutional paradigm at play.
The illegal annexation of Kashmir, into India’s Union territory, was done through a Presidential Order (CC.O. 272), which abrogated the Constitution of Jammu and Kashmir, and (in essence) repealed Article 370 and 35A of the Constitution of India.
So, what is Article 370, and why did it matter so much?
Article 370 of the Indian Constitution was the provision that endowed special autonomous status to the region of Jammu and Kashmir. It formed the basis of its accession to India, at a time when these princely states had the choice to either join India or Pakistan, in 1947.
Article 370 came into effect in 1949, and empowered the ‘Constituent Assembly’ of Jammu and Kashmir, after its establishment, to choose which provisions of the Indian Constitution could be applied to the region, and also permitted the said assembly to abrogate the Constitution of India, at its discretion, to choose its measures of complete self-governance.
In this context, after consultation with the Constituent Assembly of Jammu and Kashmir, the 1954 Presidential Order was issued, introducing Article 35A into the Indian Constitution.
This constitutional regime permitted Kashmir’s domestic legislature to define permanent residents of its geographic territory, specify the provisions of the Indian Constitution that shall apply to Kashmir while allowing Kashmir to make its laws in all matters except finance, defence, foreign affairs and communications.
Article 370(3) of the Indian Constitution stipulated that “the President may, by public notification, declare that this article shall cease to be operative” or shall be operative with “exceptions and modifications”
Article 35A referred to as ‘Permanent Residents Law’, also prohibited outsiders from buying land or permanently settling in the region, and barred female residents of Jammu and Kashmir from property rights, if they married a person from outside the State. As a result, the region of Jammu and Kashmir maintained its identity, a separate constitution, its flag, citizenship, and autonomy over the internal administration of the region.
In essence, this constitutional arrangement ensured that India’s legal and constitutional control over Kashmir was only to the extent, and in such matters, as the people of Kashmir (through their elected representatives) had chosen to accede. This ‘choice’ of the Kashmiri people, exercised through the Constituent Assembly of Jammu and Kashmir, formed the only moral and constitutional basis for India’s presence in the region.
Within India’s constitutional framework, Article 370 and its consequent effects could (technically) be removed with the permission of the Constituent Assembly of Jammu and Kashmir. However, the Constituent Assembly of the region was dissolved in 1957, thereby making Article 370 and its effects permanent.
This is not a sympathetic analysis or opinion; in fact, the Supreme Court of India, in 2018, ruled that Article 370 had acquired “permanent status making its abrogation impossible.”
Nonetheless, through a series of presidential orders, citing lack of a state government, Modi’s right-wing extremist government decided to change the language of Article 370, substituting the word “Constituent Assembly” with “Legislative Assembly”, in 2018.
Even if the amendment in Article 370 is deemed valid – requiring the consent of the “Legislative Assembly” instead of “Constituent Assembly” of Jammu and Kashmir, for any change in the State’s constitutional status – the same was not adhered to by the Modi government. In June of 2018, the legislative assembly of Kashmir was ousted.
And on December 18, 2018, the State of Jammu and Kashmir was placed under BJP’s right-winged presidential rule, in terms of Article 356 of the Indian Constitution, and the powers of the legislative assembly were thereby vested in the union legislature.
Modi’s fascist regime had convinced itself that, so long as it had friends in high places (Donald Trump and Benjamin Netanyahu), there would be nothing to worry about. Thus the ‘Howdy Modi’ and ‘Namaste Trump’ spectacles
Importantly, Article 370(3) of the Indian Constitution stipulated that “the President may, by public notification, declare that this article shall cease to be operative” or shall be operative with “exceptions and modifications”.
Importantly, for this purposes, “recommendation of the Legislative Assembly of the State” was “necessary before the President issues such a notification.” However, since the Legislative Assembly of Jammu and Kashmir was not functional in August 2019, the President merely consulted his own appointee, the Governor of Jammu and Kashmir.
The consultation, in terms of the Constitution, was neither meaningful nor a representation of the voice of Kashmiri people. In essence, India’s President consulted with himself (i.e. with a Union appointed Governor), and deemed it to be sufficient for “recommendation” of the Kashmiri people (under Article 370(3)).
Through this constitutional travesty, Modi’s Hindutva government extinguished the democratic rights of at least 13 million Kashmiris, thereby making a complete mockery of the façade that was secular democratic India.
And with it, Indian presence in Kashmir is now at par with the Israeli occupation of the Palestinian territories; except that the hotbed of Kashmir (including Laddakh) now also forms a flashpoint between three nuclear states, and center stage for the new Great Game in our region.
As could be expected, this unprecedented provocation by Modi’s Hinduvta regime was unacceptable to the indigenous freedom struggle of Kashmiri people. And they reacted with the kind of expression that has become the very picture of occupier-brutality across the world: Kashmiri children pelting stones at Indian armored vehicles.
Faced with resistance, Modi’s fascist regime introduced the Public Safety Act, the Unlawful Activities (Prevention) Act, and tight curbs on internet and communication access. According to the Jammu and Kashmir Coalition of Civil Society (JKCCS), a local human rights organization, almost 400 ‘cordon and search operations’ have been conducted in Jammu and Kashmir since 2019, resulting in the deaths of hundreds of people.
Over the past year, owing to security lockdowns, children in Jammu & Kashmir have attended school for just ten school days. And during this time, the Kashmir Chamber of Commerce and Industry has reported losses of around $6 billion.
Modi’s India was taken by surprise. Making matters worse, India’s jingoistic media started to drum up anti-China sentiment, prompting China to take tangible measures to ‘curtail India’
Regardless, despite knowledge of the fact that Kashmir is simmering under the blanket of a curfew, Modi’s fascist regime decided to doubled-down on its policy of intolerance and ethnic/religious persecution.
Specifically, on December 11, 2019, Modi’s government passed the draconian Citizenship (Amendment) Act, 2019, which refuses citizenship to Muslims who migrated to India from neighboring countries.
This, for the record, included several servicemen of the Indian Army, who claimed to have fought wars for their country and now found themselves without a right to citizenship. The resulting nation-wide protests, which entailed arson and ethnic killings, remained futile in convincing the Hindutva government of its monstrous folly.
Emboldened by a lukewarm international reaction, Modi’s thugs grew bolder. Amit Shah, the Home Minister, in a speech before the Parliament, openly declared that their government intended to ‘take back’ all of Kashmir: including Azad Kashmir (held by Pakistan), Aksai Chin (held by China), and Gilgit-Baltistan (from where CPEC enters Pakistan). Even China’s condemnation was ignored, simpliciter.
For this purpose, Modi’s fascist regime had convinced itself that, so long as it had friends in high places (Donald Trump and Benjamin Netanyahu), there would be nothing to worry about. Thus the ‘Howdy Modi’ and ‘Namaste Trump’ spectacles.
This strategy relied on two (time-tested) factors: 1) being in the America/Israel camp provides any regime with a blanket immunity against domestic wrongdoings; and 2) if you crush a people for long enough, eventually their spirit to struggle for freedom dies away.
This may even have worked, in another time. But this is 2020. And nothing seems to be going according to ‘plan’ in 2020.
As Coronavirus spread across an unprepared world, it had cataclysmic effects for the United States and its allies (in particular India). Almost overnight, the myth of a unipolar world collapsed, giving rise to China as the new ‘global power’ in this region.
The cause of Kashmiri freedom has found resonance in Pakistan, in Afghanistan, in China, in Iran, in the UAE, and (most recently) in the statement issued by Hezbollah
America – reeling from Coronavirus, old wounds of racism, and a belligerent presidency – no longer had the energy to come to Modi’s aid. And China, to protect its own interests, made incursions in Laddakh (cutting off India’s planned access to Gilgit-Baltistan and CPEC).
Modi’s India was taken by surprise. Making matters worse, India’s jingoistic media started to drum up anti-China sentiment, prompting China to take tangible measures to ‘curtail India’.
First, it was Nepal claiming territory inside India. Then, a diplomatic fallout with Bhutan. Then a souring of ties with Bangladesh. And finally, the ousting of India from the strategic Chabahar-Zahedan Railway project.
And that’s where we are today.
Within a year of the revocation of Article 370, Modi is out of friends, and out of options.
It is time for India to recognize that revocation of Article 370 has been a monumental failure. Not only has it exposed Modi’s RSS has a fascist party, but it has also led India onto a path of conflict with the next Superpower of the world. And all of it was unnecessary and unprovoked.
The story of the past year in India – since the revocation of Article 370 – is the story of a twisted Hindutva ideology that has effectively doomed the idea of ‘incredible India’. Modi and his RSS thugs, in the past year, have singlehanded undone the great progress that India had made in its image and statute, over the past two decades. This is a cautionary tale. A rulebook for what not to do in international relations.
Owing to these events, Kashmir has much greater hope for freedom today, than it did a year ago. The cause of Kashmiri freedom has found resonance in Pakistan, in Afghanistan, in China, in Iran, in the UAE, and (most recently) in the statement issued by Hezbollah. None of this seemed possible a year ago. But Modi brought India to this place. And Modi, it seems, will become the most unlikely of cause for Kashmir’s freedom.
The writer is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at: firstname.lastname@example.org, or Twitter: @SaadRasool
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.