Narendra Modi and his second-in-command,
Amit Shah (or should we say Amit Shah and the face of his ruthless political
machine, Narendra Modi?) love theatrics of astronomical proportions.
Unfortunately for the rest of us mere mortals, these theatrics tend to have an
immeasurable human cost. Demonetisation, the flagship policy of their first
term in power at the Centre, wrecked millions of lives1,2. The
Balakot misadventure, the high intensity pre-election manoeuvre that swung the
largest election in human history decisively in their favour, brought the world
on the brink of a disastrous war3. And now, in a political move more
suitable to a military dictatorship than a constitutional democracy, the duo
abrogated Article 370 of the Constitution and reconfigured the state of Jammu
and Kashmir into two Union Territories; all within a span of a few hours4.
In the present essay, I wish to discuss
three important aspects of this decision: its legality, its utility and finally,
its morality. But before we dive into these issues, let me briefly summarise
the events of the last fortnight or so.
On the 27th of July, the Union
Home Ministry decided to deploy 100 additional companies of the CRPF (10000
soldiers) to the Kashmir Valley5, in addition to the thousands of
troops of various Central forces already present there. Things started looking
grim when, less than a week later, the Home Ministry rushed 28000 more CRPF
personnel to the Valley10. On the 2nd of August, in a
joint press conference, the Army, the CRPF and the Jammu and Kashmir Police
told the gathered journalists that a US made sniper rifle and a Pakistani
anti-personnel landmine had been recovered and there was an imminent terrorist
threat to the Amarnath Yatra6, 7. Subsequently, in an unprecedented
development, the Yatra was suspended6, 7. Tourists in the Valley
were told to leave. Chaos ensued. There was a rush for the airport8.
Many Yatris and tourists had to be transported out of the Valley using
transport aircraft of the Air Force9. Amid the resulting panic, even
as the Governor of the state, Satyapal Malik, tried to pretend that the
situation was normal11, a flurry of government circulars, asking
officers in the civil administration, including doctors, to remain on duty at
all times, sent an entirely different message. On the 4th, leaders
of the “mainstream” political parties of Jammu and Kashmir sought,
unsuccessfully, a clarification from the Centre13. By midnight,
reports started emerging that these leaders had been detained14. One
by one, channels of communication, landlines, mobile networks, internet
services, cable TV services were snapped and the Valley was plunged into
darkness15. The next day
began with frenetic activity in the corridors of power in the National Capital.
A Presidential Order was followed by the Union Home Minister tabling a
resolution and a Bill in the Rajya Sabha16. By the end of the day
the Rajya Sabha had passed both, and given the staggering numbers in favour of
the government in the Lok Sabha, effectively abrogated Article 370 (and as a
consequence, also Article 35A) and divided the state of Jammu and Kashmir into
two Union Territories: Jammu and Kashmir would be a Union Territory with a
Legislative Assembly, while Ladakh would be a Union Territory without one. In
the days that followed, the political contours around this issue at the
national level became apparent. There was overwhelming political support for
the government’s move. Even opposition parties like SP, BSP, AAP, YSR Congress,
BJD backed the move, leaving only the Kashmiri parties, TMC, DMK, RJD, NCP, MIM,
Congress (officially at least), the Communists and surprisingly BJP’s ally
JD(U) in opposition17. All this while, the Valley remained in
lockdown, with restrictions on movement and a near total telecommunications
black-out. Mainstream Kashmiri leaders remained incarcerated. Despite the
information blockage, reports started trickling out of the Valley that large-scale
protests had taken place in Srinagar18, 19, 20. Many were wounded in
the clashes that ensued, with several being treated for serious pellet-gun
injuries21, 22. Contrary to the Government’s claim that “all was
well”, many reports highlighted widespread angst against the Government’s
decision21, 22, 23. Restriction on physical movement proved
catastrophic for those seeking medical help24. Even migrant workers
from some of the poorest parts of India weren’t spared, as they tried
desperately to find transportation out of the Valley, amid reports of threats
from some locals25. The turmoil was not restricted to the Kashmir
Valley. Protests also erupted in Kargil (now a part of the Union Territory of
Ladakh) and curfew was imposed by the authorities26. In addition to
the chaos on the home front, there were repercussions on the international
stage. The Pakistan Government decided to down-grade their diplomatic relations
with India, suspended all bilateral trade and transportations, expelled India’s
top diplomat in Islamabad and refused to send their own envoy to New Delhi27.
India’s other neighbour, China, expressed its displeasure by calling India’s
move “unacceptable”28. In an official statement, the Secretary-General
of the United Nations expressed concern over “…reports of restrictions on the
Indian-side of Kashmir, which could exacerbate the human rights situation in
the region.29”
To summarise, by abrogating Article 370 and
restructuring Jammu and Kashmir in a sudden, secretive move, the Central
Government set in motion an unprecedented political storm.
Let us now turn our attention to the main
focus of this essay and examine three aspects of the Governments move.
Legality
The argument in this section is based on the
articles by Gautam Bhatia30 on the blog Indian Constitutional Law
and Philosophy and Sruthisagar Yamunan in Scroll31.
Till the 4th of August, Article
370 of the Constitution of India permitted the state of Jammu and Kashmir to
have its independent constitution and limited the application of the
Constitution of India to the state. Through powers vested within clause (1) of
the Article, the Government of India could extend provisions of the Indian
Constitution to Jammu and Kashmir, but only with the concurrence of the
Government of Jammu and Kashmir. These powers included the power to amend parts
of the Indian Constitution that specifically deal with India’s relationship
with the state of Jammu and Kashmir; however, there was one notable exception:
Article 370 itself. The procedure for the abrogation of Article 370 was laid
down in clause (3). Essentially, the Central Government could abrogate Article
370 only with the permission of the Constituent Assembly of Jammu and Kashmir.
The Constituent Assembly of Jammu and Kashmir was, however, dissolved in 1957
and therein lies the problem. Bhatia writes that there is a longstanding debate
on the implications of this conundrum. It is not entirely clear if the fact
that there is no Constituent Assembly at present means that the Article cannot
be abrogated at all or that it would require that such an assembly be
reconvened for the purpose of abrogation. The Central Government, however, ignored
this debate entirely and instead chose a slightly circuitous route to abrogate
Article 370 by using an instrument called Article 367.
Article 367 of the Indian Constitution
contains explanations pertaining to various laws and hence is supposed to aid
in the interpretation of those laws. On the morning of the 5th of
August, using powers vested within Article 370(1), the Central Government
issued a Presidential Order (C. O. 272), with the concurrence of the Jammu and
Kashmir Government, amending Article 367. The most important aspect of this
amendment was that it recommended that the words “Constituent Assembly” in
Article 370(3) be interpreted as “Legislative Assembly”. Therefore, in order to
abrogate Article 370, the Central Government would require the permission of
the Legislative Assembly of Jammu and Kashmir. Currently, there isn’t a
Legislative Assembly in Jammu and Kashmir. It was dissolved by the Central
Government in 2018; Governor’s Rule was later replaced by President’s Rule45.
If a state is under President’s Rule the role of that state’s Legislative
Assembly is played by the Parliament, which meant that abrogation of Article
370 would now require the permission of the Indian Parliament! This is when
Amit Shah tabled the statutory resolution (in addition to the Jammu and Kashmir
reorganisation bill) in Rajya Sabha that would remove most of Article 370. The
resolution was passed by the Rajya Sabha the same day and by the Lok Sabha the
next day.
According to Bhatia, there appear to be two
important problems with the Government’s approach.
Firstly, in order to amend Article 367
through C. O. 272, the concurrence of the Jammu and Kashmir Government was
required. Given that the state is currently under President’s Rule, the powers
of the State Government presumably lie in the Governor’s hands. The Governor is
an appointee of the Central Government. Therefore, before issuing C. O. 272,
the Central Government, quite farcically, sought its own concurrence! (It
probably doesn’t need to be mentioned that this concurrence was granted.)
Secondly, as Article 370 could not be used
to amend itself, the Government achieved this through an indirect way, by first
amending Article 367, which effectively amended Article 370. This is severely
problematic. Bhatia writes:
“Now, it may be immediately objected that
C.O. 272 does not amend Article 370: it amends Article 367. The point, however,
is that the content of those amendments do amend Article 370,
and as the Supreme Court has held on multiple occasions, you cannot do indirectly
what you cannot do directly. I would therefore submit that the legality of C.O.
272 – insofar as it amends Article 370 – is questionable, and as that is at the
root of everything, it throws into question the entire exercise “
Utility
On the 8th of August, in a
widely televised address, the Prime Minister of India spoke to the people of
India32. It is unclear how many people in the Kashmir Valley had
access to this speech with cable networks down. Just as Amit Shah had done in
his speeches in the Parliament, the Prime Minister, too, blamed Article 370 for
being the root of all evil in Jammu and Kashmir. Here, I address some of the
points in favour of the abrogation of Article
370:
1. Article 370 and Article 35A were
responsible for “secessionism, terrorism, nepotism and widespread corruption”
and therefore, responsible for the deaths of 42000 people.
This, in my opinion, is just blatant
rhetoric devoid of any merit. Secessionism and militancy in the Kashmir Valley
are too complicated to be understood in such simplistic terms and perhaps owe
their origins to the unique manner in which the state entered the Union as well
as the violent spiral of post-independence politics in the state. I would like
to argue that far from promoting secessionism, if anything, Article 370,
formalized Kashmir’s relationship with the Union of India, putting its accession
to the Union on a firmer legal footing. It is not entirely clear to me how
Article 370 was responsible for nepotism and corruption.
2. Laws
enacted in the Parliament such as the Right to Education Act, Right to
Information (RTI) Act, Safai Karamchari Act, Minimum Wages Act, reservations
for Scheduled Tribes would now be applicable to Jammu and Kashmir and Ladakh. Article
370 was against women’s rights.
It is certainly true that many of the laws
enacted by the Parliament require the concurrence of the Jammu Kashmir
Government for them to become applicable in the state and as a result many of
the laws enacted by the Parliament were not in force in Kashmir. However, in
some cases like the RTI, Jammu and Kashmir had its own RTI even before the
Parliament enacted it at the national level. The Jammu and Kashmir RTI was
later amended in 2009 to make it comparable to the RTI enacted by the
Parliament33.
It is also true that Jammu and Kashmir had
a law that denied women from the state the right to inherit property if they
married outside their state. However, this law had been struck down by the
Jammu and Kashmir High Court in 200234, 35.
As for the other laws, they could have been
easily made applicable to the state, along with repealing potentially
“problematic” local laws by taking the Jammu Kashmir Government into
confidence, a prospect not too unthinkable as BJP was, in fact, in power there
with the PDP.
3. Article 370 kept Jammu and Kashmir
poor and now that it was abrogated private investment would bring development
and jobs. Tourism and film industries would flourish.
Amit Shah’s claim that Article 370 had kept
Jammu and Kashmir underdeveloped received a serious blow when several
commentators pointed out that the state’s human development index was far
higher than the national average36, 37. The state’s HDI in 2017 was
0.68, higher than Andhra Pradesh and Gujarat.
The state performed way better than the national average with respect to
life expectancy (3rd highest), infant mortality, gross enrolment in
secondary schools, people served per doctor and poverty rate. The state,
however, had poor economic indicators such as per capita net state GDP and
private capital investment36, 37.
It is this void, according to the Central
Government, that would be filled by the abrogation of Article 35A. For any
meaningful private investment to happen, the political volatility of the last
three decades will have to abate. Given
the secretive, some would say treacherous, manner in which this move was pushed
through by the Government, there is certainly going to be a severe
backlash. In absence of any attempt at
political engagement from the Government, It is not at all clear when the political
climate of the Valley will become conducive for private investment.
In Ladakh, where there had been a
longstanding demand for a Union Territory status, people were wary of the
prospect of private investment. Educatory and entrepreneur, Sonam Wangchuk,
told NDTV’s Ravish Kumar that while he welcomed the Union Territory status, he
felt there should not be a “free for all” system such that Ladakh gets
inundated with investment from mainland India. He argued that Ladakh, being
essentially a desert, barely had enough resources to sustain the local populace
itself and a sudden influx of people from elsewhere in India would have
disastrous consequences for the locals38.
The one place, however, that could benefit
from private investment is the Jammu Division of the state.
4. Strategic
interests of the Indian State
I believe that no state should further
their interests at the cost of the interests of their citizens. However, for
the sake of argument, let us examine the consequences of this decision on the
interests of the Indian State. I would like to argue that the status quo, prior
to the abrogation of Article 370 and restructuring of Jammu and Kashmir, was
rather favourable for the Indian State. There were hundreds of thousands of
central armed personnel in the state.
Any uprising, whether armed or otherwise, had been brutally crushed with
absolute force. Coupled with boots on the ground were a set of draconian laws
like the AFSPA or the PSA that enabled Delhi to control the state with an iron
fist. Furthermore, the Indian State had favourable international opinion on its
side. In spite of thousands of civilian deaths, sexual assaults, disappearances,
widely reported instances of torture39, 40, 41, 42, India’s
international clout ensured that these blatant violations of the human rights
received little reproach from the rest of the world. Whenever they did receive
some attention, as in the case of the report by the Office of the United
Nations High Commissioner for Human Rights46, global powers chose to
stay mum.
It was this status quo that was ruptured by
the Government’s move, kick-starting a chain of events which the Government now
has little control over.
Then why has the Central Government taken a
step that has no tangible benefits to the state of Jammu and Kashmir or the
strategic interests of the Indian State?
The only driving force behind this move
appears to be domestic politics. Abrogation of Article 370 had been the ruling
party’s poll promise and the actual abrogation only strengthened their position
in their traditional support base. Secondly, at a time when the economy is
slowing down, unemployment rate is on the rise, the automobile industry is
collapsing and most of the country is reeling under unfavourable climatic
conditions, this move has proved to be a convenient distraction. Cheered on by the
faithful in the media, awkward question about the state of the economy are
being drowned out. In other words, the utility of this move is not to the
citizens of Jammu and Kashmir, or to the Indian State but to the political
prospects of the ruling party.
Morality
Let us assume that whatever I have said in
the previous two sections is wrong. Even if the Government’s move is perfectly
legal and even if the move is going to result in incredible benefits for the
citizens of Jammu and Kashmir, I believe it is still the duty of democratically
minded people to oppose it.
The people of Jammu and Kashmir are no
strangers to betrayals from Delhi. They have seen their Prime Minister
imprisoned47. They have witnessed promises of self-determination
through a plebiscite broken47. They have had their elections rigged48,
49. Shah and Modi’s move is perhaps the most sinister addition to this
list.
It should be obvious to any person whose
moral compass has yet not gone completely haywire that if a government of a
country wishes to take a step that is going to completely change the paradigm
in which 15 million citizens of that country interact with the rest of the
country, then the least it can do is consult, discuss and deliberate the issue
with those citizens.
In this case, the Central Government did
not even pretend to consult the people of Jammu and Kashmir. In the Kashmir
Valley, practically the entire population was incarcerated in one giant prison.
Telecommunication lines were snapped. Internet services were blocked. Section
144 was imposed. Gun-toting security personnel, ever present in the Valley,
spread out in large numbers with their barbed wire. Even “pro-India” or “mainstream”
political leaders from the Valley were not spared. Information flow in and out
of the Valley was for all practical purposes totally blocked. Kashmiris living
elsewhere found it impossible to contact their family back home. So complete
was the blockage that when a Kashmiri boy named Talha Arshad Reshi won the
National Award (Best Child Artist) for his performance in Hamid, the
director of the film, Aijaz Khan had no way of communicating the news to him43.
After the decision was announced the blockade effectively ensured that no
Kashmiri voices would be heard in the mainstream media, while the Government
could paint a decidedly false rose picture. Thanks to some incredibly brave
reporting, mostly by local Kashmiri journalists, the true picture has now
started to emerge. Unlike what the Government would have us believe, things
look hopelessly grim18, 19, 20, 21, 22.
The point I am trying to make is that the
manner in which the decision was executed made a mockery of universally
accepted basic democratic principles. An entire population was essentially
handcuffed, gagged and blindfolded and a majoritarian decision was subsequently
hammered on their heads.
What is the way forward from here? An
illegal, futile and undemocratic decision taken by our government is being
cheered on by a large number of our fellow citizens. In the words of
Bhuvaneshwar Kalita, Congress’s chief whip in the Rajya Sabha who switched to
the BJP in the past week, “the mood and emotions of the nation has completely
changed”44. This indeed is New India.
There will be petitions filed in the courts;
some in the media, brave enough to speak up, will speak up and resist; some
will keep reTweeting each other in their little echo chambers; some will be
silent; and not too distant in the future, unbeknownst to all of us, the Indian
Democracy, which has till now endured and fought off multiple assaults on its
soul, in 1975, in 1984, in 1992-93, in 2002, will finally breathe its last.
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