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21 September

Making history or historical mistake?

Mridula Ghosh on fateful changes in Jammu and Kashmir

No green men without insignia like in Crimea, no UN Peacekeepers in blue helmets; increased number of boots hitting the grounds of Kashmir are those of regular soldiers of the Indian Army. No communication and internet access. Schools and colleges shut, control is all-pervasive. Local leaders Mehbooba Mufti and Omar Abdullah are under house arrest. People with grim faces in fear are insecure. On August 5, the upper house of the Indian parliament Rajya Sabha recommends the President to revoke Article 370 of the Constitution of India, which gave special status to Jammu and Kashmir. The next day, August 6, the lower house Lok Sabha approves the scrapping of Article 370, with a record number of 370 votes. The Presidential decree No.272 immediately comes into effect.

Less than a month ago, on July 22, 2019, US President Donald Trump while meeting Pakistan’s Prime Minister Imran Khan, remarked that the Indian Prime Minister Narendra Modi requested his mediation in Kashmir. Outraged Indian authorities referred it as a faux pas since Kashmir is a bilateral issue between India and Pakistan. US State Department mitigated the situation with diplomatic statements. Some Indian politicians questioned, did President Trump know anything? The issue died soon. Now, the Kashmir issue is alive again.

Now it isabout the revoking of Article 370, which was crucial for Kashmir’s inclusion into India after independence. Along with this, the state of Jammu and Kashmir was reorganized, by bifurcation into two union territories to be ruled by Governors – Jammu and Kashmir and Ladakh. While Jammu and Kashmir will have a legislature, Ladakh will not.

For the past 70 years, Article 370 allowed Jammu and Kashmir to have their own Constitution and autonomy in decision-making in all areas, except foreign affairs, defense and communication. Clause 35-А in this Article enabled the state to determine its permanent residents, and only entitle them to government jobs and own property. Women, married to non-residents of the state, were deprived of property succession rights. Also, provisions prevailing in all states of India like the right to protection of minorities, right to information were not available. Jammu and Kashmir legislative assembly had a 6-year term, not 5, as that of other Indian states. Common people in India always questioned such special provisions for Kashmir. 

Obviously, discrepancies of Article 370, contained in the section of the Provisional, Transitional and Special Provisions of the Constitution of India, called for its review. In 1949, the Jammu and Kashmir Constitutional Assembly was to request removal of Article370,once the Constitution of the state was adopted, but this was not done. The Assembly was dissolved, Article 370 remained and became “permanent”. Each time, Presidential orders were used to amend the article and cater to emerging needs. Today, the Indian government believes, Article 370 did not address Kashmir’s development and integration intoIndia. Therefore, the present Government used the existing legal and political means to abolish this Article. The means used on the grassroots generated an atmosphere of fear, uncertainty and alienation. Lack of dialog led to loss of trust. The void created may unleash unforeseen developments in the volatile region, neighbored by two nuclear powers. Arguments over the historical, legal expediency and correctness of using these methodswill not end soon.

To Kashmir based politicians, this move was a betrayal of the Kashmiri people and will have far-reaching consequences. Mehbooba Mufti accused India of its “sinister plan” to change the demography of the only Muslim majority state in India, implying that right to property for all Indians after revoking of Article 370 will stimulate influx of other Indians. Opposition politicians such as the Indian National Congress leaders Sonia and Rahul Gandhi and Shashi Tharoor criticized the “modus operandi” – lack of political consensus, as well as the absence of concurrence of the Jammu and Kashmir legislative assembly. But such concurrence was not possible, because Jammu and Kashmir at present is without a legislative assembly and is under president’s rule exercised by a Governor. The government obtaining the Governor’s consent, who is a nominated, not elected official was seen as utterly undemocratic manufacture of consent. Interestingly, eight leaders of the Indian National Congress, as well as politicians from other parties supported the revoking of Article 370. Before adopting the decision, Home minister Amit Shah confidently said, “We are not about to make an historical mistake. We are correcting a historical mistake.”With a constitutional majority, the ruling coalition did not build multi-party alliances in favor of its decision. 

Performance on the external front was better, informing in advance all permanent UN Security Council members of these constitutional changes. Severe criticism came from Imran Khan, Pakistani Prime Minister, who said, India will face new terrorist attacks, similar to the one in Pulwama in February 2019, because the ruling Bharatiya Janata Party with its “racist ideology” acts against the Muslims of Kashmir. He called for a special session of the UN Security Council on this issue. So far, US, Great Britain and others have made careful statements. ThecaseofChinawasdifferentbutinitsstatement of concern on border disputes with India thewords, “Jammu and Kashmir” or “Ladakh” were absent. Interesting were the observations by UAE and Sri Lanka. UAE representative said the reorganization of states is India’s internal matter. Sri Lanka, a Buddhist majority country, welcomed the creation of Ladakh, the first Buddhist majority state in India. China’s border concern becomes understandable. A new element is added to the historical discourseon Kashmir valley – protecting the Buddhist heritage of Ladakh, voiced by Jamyang Namgyal, an MP from Ladakh. 

We hear a lotabout special status or autonomy of Donbas in Ukraine. Redrawing internal borders in a democracy require winning hearts and minds of people. Means are as important as the end. In this context, it is worth studying the 70 years of experience – positive and negative – of the making and unmaking of Article 370 of the Constitution of post-colonial India. 

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