The Disempowering Debate

Integration and subsequent bifurcation of Jammu and Kashmir is the major happening in contemporary history with consequences within and outside India. But the work is still in progress, reports Masood Hussain

Amit Shah

For most of the last 67 years, only a section of the population was able to distinguish the flag of the erstwhile state of Jammu and Kashmir from the party flag of the National Conference. The flag, however, bounced back to the public debate in wake of the massive Narendra Modi wave in 2014. Two major factors sustained the flag debate: Engineer Rasheed’s politics and a Public Interest Litigation (PIL) that was eventually decided by Justice Hasnain Masoodi.

Later, Jammu and Kashmir’s law ministry ordered that people holding a constitutional position in Jammu and Kashmir must give due respect to the state and the national flag. The order irked the BJP. Once it came to power, the order was amongst the initial few things that its ally, PDP, rescinded.

On August 25 evening the flag disappeared from the civil secretariat. By then, Engineer Rasheed was in a Rajasthan Jail and Masoodi, now a member of the Lok Sabha, was trying to have his first meeting with his jailed leaders, Dr Farooq Abdullah, and Omar.

“There was a thought process in the few days after August 5, that the flag may unfurl till October 31, when the new law will be rolled out,” one middle rung official of the UT government, privy to the developments, said. “But nobody knows why it was removed barely 20 days after the law was promulgated.” An expectation was the lowering of the state flag would mark some kind of a function that BJP was initially thinking about but it disappeared silently. Nobody knows who removed it and how.

The Kashmir flag’s jump into the oblivion of history was the second major development after the Jammu and Kashmir Reorganisation Bill was promulgated in parliament. The law was drafted in complete secrecy with most of the BJP functionaries and lawmakers not having a whiff of it. Its contents were revealed only after it was introduced in the House by the Home Minister, Amit Shah, at a time when Jammu and Kashmir was under strict curfew restrictions and almost the entire political class was under lock and key. Insiders in the government said only a few people managing Jammu and Kashmir knew the purpose behind the massive clampdown that preceded its introduction.

Contrary to the public perception that Article 370 stands erased from the Constitution of India, the fact does still exist. However, it is reduced to a complete shell.

August 5 developments had two ingredients. First was the President’s notification of the Constitution (Application to Jammu and Kashmir) Order of 2019. It junked its predecessor, the Constitution (Application to Jammu and Kashmir) Order of May 14, 1954. The 65-year-old Presidential Order was literally the mother of Jammu and Kashmir’s special status and protection to its identity, ethnicity, demographic composition and the territory. Though the Congress party had amended it 45 times taking away substantial quantum of the autonomy it envisaged in last more than six decades, the Order still retained its soul. The 2019 order took that away.

Almost two years after Jammu and Kashmir acceded to India, Article 370 was included in the Indian Constitution on October 17, 1949. Since it exempted Jammu and Kashmir from the Indian Constitution, except Article 1 and Article 370 itself, the central government had to invoke (through President of India) Article 370 every time it wished to extend a law to the erstwhile state. These extensions would require either a “consultation” or the “concurrence” of the government of Jammu and Kashmir.

PM Narendra Modi with Saudi Arabia leader.

Till August 4, 94 of 97 entries in the Union List; 26 of the 47 items falling under Concurrent List; 260 of 395 Articles and 7 of 12 Schedules were extended to the state of Jammu and Kashmir.

Now, the 2019 Presidential Order permitted that “all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir”.

Faizan Mustafa, a constitutional expert who heads the NALSAR University of Law in Hyderabad observed that the government used “an innovative and constitutionally suspect manner” to bring about the change: The President invoked the Article 370 to amend Article 367 and inserted a new clause to Article 370 suggesting that the ‘Constituent Assembly’ of Jammu and Kashmir shall mean ‘Legislative Assembly’ of the State, and ‘State government’ shall mean ‘Governor acting on the advice of Council of Ministers’. Jammu and Kashmir’s constituent assembly existed between October 31, 1951, and January 26, 1957. Since then, Jammu and Kashmir had the legislative assembly.

“With this interpretation, Article 370 presented an entirely different picture,” Mustafa wrote in The Hindu. “Since the erstwhile State was already under President’s rule, the Parliament, by exercising ‘powers’ of the Legislative Assembly, gave its concurrence to the aggressive surgery of Article 370 that has killed the spirit as well as the text of the provision.”

It was in quick follow-up to the Presidential Order that the Jammu and Kashmir Reorganisation Act was enacted in the last two days of the parliamentary business. With Jammu and Kashmir’s constitution gone, the law divided the state in two Union Territories (UT) and made a choice from the laws already on the statute book: 153 state laws and 11 acts promulgated by the governor were repealed and 166 state laws were retained.

The position of Governor was reduced to the Lieutenant Governor and he became the de-facto ruler even in a situation when Jammu and Kashmir will have an elected assembly. Chief Minister became subservient to the LG as the assembly – Jammu and Kashmir had the most empowered assembly among all Indian states, lacks an authority to legislate on certain issues. Certain key functions including the control over the 150 thousand strong police force were taken over by the MHA.

The new list of official holidays now excludes the birth anniversary of Sheikh Muhammad Abdullah and the historic Martyr’s day.

On October 31, the anniversary of Sardar Valabhai Patel, the law was implemented with a Modi-Shah confidant, G C Murmu taking over as the first Lt Gov of Jammu and Kashmir. The new systems started getting into the UT and the process is still a work in progress. While the government in Jammu and Kashmir is tackling the issues of change-over on daily basis, the Government of India had also to initiate the process of tweaking certain established systems to manage the Jammu and Kashmir in a downgraded status. One major initiative, still underway, is a reference to the Finance Commission for devolution of funds. UTs are usually managed by the MHA and do not require a finance commission award but Jammu and Kashmir is a bigger entity and may not manage itself on that pattern.

The twin developments that still keep Kashmir on the edge with communication locked down and the political class in jail is the most important intervention in the history of the erstwhile state after 1947. From Delhi to Srinagar, everybody knew it will have consequences.

The first major apprehension was that Kashmir will fiercely react and it might lead to bloodshed. Given the large scale build-up that envisaged midway halt to the ongoing Amarnath yatra, mass arrests across Kashmir, closure of all kinds of phones and the internet and imposition of harsh curfew restrictions, people mostly stayed indoors. In certain areas, mostly in south Kashmir, the counter-insurgency grid got hyper-active to ensure that protests do not take place. The arrest of entire political class indicated the magnitude of the crisis. A belt in Soura was the lone instance where protests took place. As the unhappy and angry people stayed home, it became a protest in itself. A general belief is that lack of protests was more of a conscious decision at society level rather than the grand scale of the clampdown.

Foreign Minister S Jaishankar and US Secretary of State Mike Pompeo

Writing in The Hindu, Amit Baruah the veteran journalist who has been covering Kashmir since the 1990s said the August 5 decision not only “decimated the pro-India constituency” but also led the separatists to win the “current propaganda” war in Kashmir. “Right from denigrating Sheikh Abdullah for going with India and, later, settling with Indira Gandhi in 1975, the separatists have always warned that New Delhi is not to be trusted,” Baruah reported. “The erosion of autonomy has hugely boosted their agenda. It also holds out enormous potential for jihadi outfits to use in their pernicious plans to obtain new recruits.”

Since the intervention was one of the most important changes that the Constitution has undergone, it was expected that people opposed to it will go to the court. It happened within days. There are more than a dozen writ petitions challenging the scrapping of the special status and dividing the state before the apex court. The Supreme Court has constituted a 5-member Constitution Bench to take care of these cases. There were two hearings with no orders. The Government of India filed its detailed response to justify the intervention. There is a demand by one of the petitioners that the Supreme Court must constitute a 7-member bench to hear the cases. So far there has not been any direction.

The third apprehension was that the August 5 decision making did directly hit the status of Jammu and Kashmir but it created precedence that could hit other states too. Precisely, it is being seen as the first major assault of the federal structure of India. There is loud-talking on this issue in various states including West Bengal and Tamil Nadu. One of the serious protests against the decision was in Punjab where tens of thousands of ordinary civilians moved out to the streets. This triggered a debate that is now gone louder in wake of the issues liked to legislation on citizenship. The Kashmir decision-making is currently the key factor why the Government has not been able to sign the accord with the Naga militants. They are seeking certain things, which go against the spirit of the one nation, one flag and one constitution.

Finally, as strategic affairs experts had predicted, the decision did had the diplomatic consequences as well.

Pakistan took the issue everywhere including the UN where Imran Khan made one of the scathing speeches ever. The response to the Kashmir diplomacy was two-pronged. Apart from Pakistan, there were only a few countries like China, Turkey, Malaysia and Iran, which sharply and publicly reacted to the withdrawal of the special status. Even most of the Muslim world stayed away from the controversy with a few in the Middle East stating formally that abrogation of special status to Jammu and Kashmir was India’s internal affair.

Most of the West reacted to the clampdown and harshly refused to accept the Delhi narrative. The USA, for instance, does not oppose the scrapping of the law but its Congress has harshly tackled different facets of the human rights in Kashmir. There were two Congressional hearings on Kashmir. In both the hearing a Kashmiri Pandit each briefed the Congress about the situation in 1990s. The American Democrats and the British Labour’s were quite sensitive to the constitutional shifts on Kashmir. Labour Party has already lost and 2020 will see the fate of Democrats in the Capitol Hill. There were at least two occasions when the US and its allies supported Delhi in preventing some process initiated by Islamabad and China on Kashmir. In a Security Council close door meeting on Kashmir, the members finally decided against a joint statement. As China sought another meeting, it was not agreed to by the Council boss, the USA.

At one point of time, Delhi roped in 23 members of the European Parliament and flew them to Srinagar. It boomeranged against the organisers. As it failed, one arm of the state in Delhi was actually pulling the legs of the other arm.

Civil Secretariat in early August 2019.

The tension on the Line of Control (LoC) between India and Pakistan, however, remains the issue of concern for most of the world. Last week, India and Pakistan lost two soldiers each to the exchange of fire, now a frequent occurring on world’s most active border. Once the UN members start talking on the border violence, the debate goes back to August 5 and beyond. In evolved democracies, diplomacy is handled quite seriously. Most of what is being said is hardly being made public.

The Kualalampur Summit (KL) has forced the OIC masters to rethink their status. Its latest manifestation was the visit of Saudi foreign ministers to Islamabad.  “Even the elites in friendly countries such as Bangladesh, Malaysia, Indonesia or Turkey, who are by no means ‘Islamist‘, tend to see Kashmir as a ‘Muslim issue’”, strategic affairs analyst M K Badrkumar wrote in The Tribune. “A recent opinion piece in the influential US magazine Foreign Policy is entitled Kashmir Could Wreck India‘s Reputation Among Afghans’. It is a nuanced analysis — by no means ‘anti-Indian’ – of how Afghan public opinion, which is traditionally friendly, is discernibly getting disenchanted with India‘s repression of Kashmiri Muslims.”

Locked gates of Jamia Masjid Srinagar.

“It is India’s record and image as a democracy that is currently on trial, as much within the country as in the court of world opinion,” Narayanan asserted. “India needs to win the battle of minds within the country before trying to justify itself in the eyes of the world.”Irrespective of claims and counterclaims, the reality is that India’s proud heritage of being one of the leading democracies in the world has taken a beating,” M K Narayanan, the hawkish NSA of Dr Manmohan Singh wrote in The Hindu. “This is bound to continue as long as the clampdown in Kashmir, together with the continuing incarceration of Kashmiri leaders including the three former Chief Ministers viz., Farooq Abdullah, Mehbooba Mufti and Omar Abdullah, continues.”

The show, however, is going on. It is too early to write the last line on what happened to Kashmir on August 5.

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