Darkness at Noon: Kashmir and the Unraveling of Indian Democracy

August 8, 2019 at 2:33 pm | Posted in Uncategorized | Leave a comment
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Fresh from winning a huge mandate from the largest electoral exercise in history, the Narendra Modi government has just hammered the largest nail in the coffin of Indian democracy. Flooding the state of Jammu and Kashmir with over 35,000 additional troopsdetaining its political leaders, severing landlines and internet and mobile phone connections, and imposing a state-wide curfew, the Indian Home Minister, Amit Shah, moved to end the state’s special constitutional status, and demoted its status from that of a state to the lesser-status of a union territory while bifurcating it as well. While the removal of Kashmir’s special constitutional status has dominated the headlines, it is the state’s demotion that is the more consequential.

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Article 370 of the Indian constitution had granted Jammu and Kashmir exemptions from the Indian Constitution and laws passed by the Indian Parliament except in the matters of defense, foreign affairs, and communications unless the state’s constituent assembly consented to these laws and constitutional provisions. Alone among the states of the country, Jammu and Kashmir had its own constitution and flag. This was the codification of the terms under which the state entered the Indian Union in October 1947 when it was faced with an invasion of tribesmen led by Pakistani officers. The Instrument of Accession, which has the status of a treaty between two sovereign states, had stipulated that provisions of the future constitution of India be applicable to the state only after these provisions had been accepted by the state’s own Constituent Assembly. In effect, this largely meant that the state had special autonomy not granted to other states especially that while the national Parliament “had exclusive powers to make laws pertaining to States, on all matters not in the State and Concurrent Lists, the residuary power rested with the State legislature in the case of J&K.” Such special status is not exceptional to India—Hong Kong and Macau, for instance, have a special status in China. In India too, other states like Nagaland also enjoy constitutional protection from the application of laws passed by Parliament in regards to their social and religious practices and to the administration of their civil and criminal jurisdiction as well as to the ownership of land by non-Nagas. This of course did not arouse the ire of the BJP as the Nagas were not Muslim!

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Indeed, over the years, Kashmir’s special status has steadily been eroded by Presidential Orders. In 1954, with the concurrence of its government and constituent assembly, most of the provisions of the Indian Constitution were extended to the state. At that time, a reactionary article limiting the ability to buy land to permanent residents of the state and mandating that the children of Kashmiri women marrying non-permanent residents lose their rights, was inserted into the Indian Constitution as Article 35A (the Kashmir High Court struck down the provision that women marrying outsiders  lose their permanent residency rights in 2002). Subsequently, over 40 such Presidential Orders were issued further hollowing out the special status of the state. The Indian Government even arrogated to itself the power to change the state’s constitution—changing the position of the governor from one elected by its legislature to a nominee of the president—a power not granted to it by Article 370. Ironically, it is this very change that has allowed the Modi government to abolish the state’s special status: as the state legislature is dissolved it claimed that the governor—a nominee of the Modi government—represents the state government and that he has concurred with the extension of all the provisions of the Indian constitution and laws to the state, thus avoiding the need for a constitutional amendment!

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Nevertheless, Kashmir’s special status has long been a bugbear for the rest of India and the fact that Kashmiris can freely buy land in most of the country (except parts of the Northeast where similar laws regarding land ownership by outsiders apply) has rankled middle classes in the rest of India. No matter that for 10 of the last 45 years, Kashmir has been under direct rule by New Delhi, no matter that elections in Kashmir were regularly rigged, that its independence leader, Sheikh Abdullah was broken by years of imprisonment, no matter that in practice the special status meant that it enjoyed such dubious

benefits such as ‘human shields’, ‘half-widows’, pellet blindings, fake encounters like Pathribal and Machhil, torture and disappearances

the abolition of its special status is widely popular in the rest of India.

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However, the stripping of Kashmir’s special status—hollowed out in practice though it may be—is an emotional issue for the people of the state. They woke up on August 6, 2019 in a place that was not only without its special status but was not even a state! As a union territory, the powers of the legislative body were substantially reduced: from having its elected head of state, Sadr-e-Riyasat, to a governor appointed by New Delhi, it now had only a Lt. Governor. Unlike states, union territories are administered directly by the Indian central government and even though the new union territory of Jammu and Kashmir has a legislature, its powers are significantly curtailed especially with regard to law and order and to land; the new union territory of Ladakh does not even have a legislature and would be directly administered by unelected bureaucrats.

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Never before in the history of India has a state been demoted to a union territory and this fundamentally calls into question the federal character of the Indian polity. It is this erosion of their democratic rights that led to the imposition of the type of

measures one normally associates with a police state – the stealthy introduction of major constitutional changes, the lack of adequate time for debate, the late night arrest of mainstream political leaders in Kashmir, the prohibition of public gatherings, the shutdown of internet services and even landlines – adds the sort of odour one normally associates with coups. The message is clear: there will be no room in Kashmir for free politics of the kind every integral part of India takes for granted.

The arrest of political leaders who had been willing to cooperate with India, the shut down of the internet for the 53rd time this year, the imposition of curfew and the severance of all communication links within the state and between the state and the rest of India—even one-way forms of communications like cable TV—all point to the unpopularity of the moves in Kashmir. If democracy means anything, it means the consent of the governed, No matter how popular the Modi government’s elimination of Kashmir’s special status and its bifurcation into two union territories may be in the rest of India—except the Northeast where there are fears that they could be the next—it could only mean more disruption in Kashmir. Politicians who had been willing to cooperate with India can no longer do so as they would lose even the little credibility they had. It inevitably strengthens the hand of the hardlners. In these conditions if outsiders are allowed to buy land in Kashmir, security forces would have to protect them like the Israelis who settle in the West Bank.

A swing of about 2.5 million residents would shift Jammu and Kashmir from majority-Muslim to majority-Hindu. In a nation of 1.3 billion, that’s not such a stretch. The BJP forcefully advocates for in-migration of Hindus to the state. Officially, this applies only to those who fled Kashmir in the violence of the 1990s, but there is now no legal barrier to a full-bore program of government-sponsored in-migration. Such a move would solidify the BJP’s Hindu-nationalist agenda of redefining India not as a multireligious secular state, but as a Hindu rastra in which 200 million Muslims are tolerated only so long as they remain on good behavior.

Never before has India been as much an occupying power as now—and it is the right of the occupied to resist their subjugation!

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