The Abrogation of a People

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 lives^1,2. 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 27^th 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 2^nd 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 Yatra^{6, 7}. Subsequently, in an unprecedented development, the Yatra was suspended^{6, 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 4^th, 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 Srinagar^{18, 19, 20}. Many were wounded in the clashes that ensued, with several being treated for serious pellet-gun injuries^{21, 22}. Contrary to the Government’s claim that “all was well”, many reports highlighted widespread angst against the Government’s decision^{21, 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 4^th 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 5^th 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 8^th 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 2002^{34, 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 average^{36, 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 (3^rd 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 investment^{36, 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 torture^{39, 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 rigged^{48, 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 grim^{18, 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.  

References

1 https://www.news18.com/news/india/what-did-demonetisation-do-to-indias-beleaguered-rural-economy-1514251.html
2 https://www.business-standard.com/article/economy-policy/5-million-men-lost-their-jobs-after-demonetisation-says-swi-2019-report-119041700386_1.html
3 https://www.aljazeera.com/news/2019/02/india-pakistan-tensions-latest-updates-190227063414443.html
4 https://www.aljazeera.com/news/2019/08/india-abolishes-kashmir-special-status-rush-decree-190805061331958.html
5 https://economictimes.indiatimes.com/news/defence/centre-rushes-10000-troops-to-kashmir/articleshow/70409455.cms
6 https://indianexpress.com/article/india/amarnath-yatra-suspended-citing-terror-threats-govt-asks-pilgrims-to-leave-kashmir-immediately-5872998/
7 https://www.business-standard.com/article/current-affairs/amarnath-yatra-pilgrims-asked-to-leave-kashmir-after-terror-threat-119080201248_1.html
8 https://www.youtube.com/watch?v=_3W_TPr2xc0
9 https://www.firstpost.com/india/iafs-c-17-aircraft-to-transport-amarnath-pilgrims-of-out-jammu-and-kashmir-following-state-govts-request-7104931.html
10 https://www.indiatoday.in/india/story/28-000-more-troops-deployed-in-kashmir-valley-1576280-2019-08-02
11 https://www.youtube.com/watch?v=tXgNDxte8VM
12 https://indianexpress.com/article/india/jammu-kashmir-classes-suspended-hostels-closed-hospitals-tell-staff-to-be-stationed-5876309/
13 https://www.thehindu.com/news/national/omar-abdullah-says-governor-assured-him-article-35a-will-not-be-diluted-in-kashmir/article28806060.ece
14 https://www.news18.com/news/india/kashmir-live-updates-jammu-and-kashmir-tension-article-370-article-35a-narendra-modi-amit-shah-srinagar-2258121.html
15 https://in.reuters.com/article/india-kashmir-blackout/india-isolates-kashmir-by-shutting-down-communications-as-big-change-announced-idINKCN1UV1RA
16 https://www.livemint.com/news/india/jammu-kashmir-amit-shah-moves-rajya-sabha-to-scrap-article-370-1564984999538.html
17 https://www.indiatoday.in/india/story/jammu-and-kashmir-article-370-revoked-political-parties-support-oppose-1577561-2019-08-05
18 https://www.aljazeera.com/news/2019/08/indian-troops-fire-tear-gas-mass-protests-erupt-srinagar-190809151858216.html
19 https://www.bbc.com/news/av/49306816/article-370-tear-gas-at-kashmir-rally-india-denies-happened
20 https://in.reuters.com/article/india-kashmir-370/thousands-protest-in-indian-kashmir-over-new-status-despite-clampdown-idINKCN1UZ0OO
21 https://thewire.in/rights/pellet-blindings-a-reminder-that-on-the-ground-kashmirs-special-status-continues
22 https://www.aljazeera.com/news/2019/08/kashmiris-fighting-lives-pellet-gun-attacks-190808105704499.html
23 https://www.bbc.com/news/world-asia-india-49294301
24 https://scroll.in/article/933393/in-kashmir-a-cancer-patient-struggles-to-get-to-hospital-for-chemotherapy-others-cant-get-home
25 https://openthemagazine.com/special/death-threats-beating-trigger-mass-exodus-migrants-kashmir/
26 https://thewire.in/rights/in-photos-kargil-protests-against-abrogation-article-370-union-territory
27 https://www.aljazeera.com/news/2019/08/india-tells-alarmist-pakistan-kashmir-internal-affair-190808082722259.html
28 https://www.indiatoday.in/india/story/china-reaction-jammu-kashmir-article-370-1577915-2019-08-06
29 https://www.un.org/sg/en/content/sg/statement/2019-08-08/statement-attributable-the-spokesman-for-the-secretary-general-the-situation-jammu-and-kashmir
30 https://indconlawphil.wordpress.com/2019/08/05/the-article-370-amendments-key-legal-issues/
31 https://scroll.in/article/932917/j-k-special-status-how-the-modi-government-used-article-370-to-kill-article-370
32 http://pib.nic.in/newsite/PrintRelease.aspx?relid=192552
33 https://jk.gov.in/jammukashmir/?q=RTI
34 https://www.ndtv.com/india-news/what-is-article-35a-and-why-it-is-a-sensitive-issue-in-kashmir-2080268
35 https://www.firstpost.com/india/jammu-and-kashmir-women-marrying-non-natives-dont-lose-residency-rights-says-ex-state-advocate-general-ishaq-qadri-5943421.html
36 https://www.thehindu.com/data/where-does-jammu-and-kashmir-stand-in-comparison-to-other-states-in-key-indicators-of-growth-and-development/article28855512.ece
37 https://scroll.in/article/933319/fact-checking-amit-shahs-claim-that-article-370-and-article-35a-kept-jammu-and-kashmir-poor
38 https://www.youtube.com/watch?v=QJlucpyNQmo
39 https://www.hrw.org/sites/default/files/reports/INDIA935.PDF
40 https://www.theguardian.com/world/2010/dec/16/wikileaks-cables-indian-torture-kashmir#comments
41 https://www.amnesty.org/download/Documents/176000/asa200021995en.pdf
42 https://www.hrw.org/world-report/2009/country-chapters/india
43 https://zeenews.india.com/bollywood/thrilled-over-national-award-cant-contact-winning-artist-hamid-maker-2226123.html
44 https://www.ndtv.com/india-news/its-suicide-congress-loses-chief-bhubaneswar-kalita-whip-over-article-370-stand-2080639
45 https://www.tribuneindia.com/news/jammu-kashmir/governor-set-to-recommend-extension-of-president-s-rule/782596.html
46    https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf
47 https://scroll.in/article/933220/is-this-the-end-of-kashmiri-mainstream-politics-as-we-know-it
48 http://news.bbc.co.uk/2/hi/south_asia/2223364.stm
49 https://caravanmagazine.in/vantage/mufti-mohammad-sayeed-shaped-1987-kashmir-elections