India’s
colossal blunder in Kashmir, Ayesha Ray
The Conversation 9th
August 2019
In a stunningly dangerous, undemocratic and secretive move,
Indian Prime Minister Narendra Modi and his government repealed Articles 370 and 35a of the
Indian Constitution using a presidential order. The government failed to
involve all stakeholders in the restive state of Jammu and Kashmir before
making its move.
What's known as President's Rule in India - the suspension of
state government and imposition of direct central government rule in a state -
was imposed in Jammu and Kashmir in December 2018. It was used as the rationale
to stealthily push through this latest policy in parliament.
Since there's no legislative assembly in Jammu and Kashmir, the
Modi government and Minister of Home Affairs Amit Shah cleverly used Article
367 to make the argument that any changes to the status of the state could be considered legitmate under presidential decree.
Article 370 was created to bind the state of Jammu and Kashmir
to India in 1947, after Maharaja Hari Singh signed what was known as the
Instrument of Accession. The article gave the region significant autonomy.
The state could have its own constitution, flag and make laws.
New Delhi had control over matters of foreign affairs, defence and
communications. Article 370 states that Article 1 of the Indian Constitution
applies to Kashmir.
However, under the Indian constitution Article 370 cannot be
amended without the approval of the constitutent assembly. Article 370(3) states that " ... the
President may, by public notification, declare that this Article shall cease to
be operative or shall be operative only with such exceptions and modifications
and from such date as he may specify, provided that the recommendation of the
Constituent Assembly of the State ... shall be necessary before the President
issues such a notification."
Without any warning, India's parliament in New Delhi increased
troop levels, arrested elected representatives and effectively imprisoned
approximately eight million Kashmiris. Indian parliament divided the state into
two separate Union Territories - Ladakh, without a legislature, and Jammu and
Kashmir, with a legislature.
In the days since this draconian measure was passed, Kashmir
remains under lockdown, effectively under siege, with a heavy military presence
and no sign of normalcy. This development will likely have disastrous
consequences for India and the region.
Unilateral action
This recent move was made without deliberating with Kashmir's
representatives. The Modi government's decision to turn a state into a union
territory in a single unilateral stroke, without seeking the approval of all
Kashmiris, carries serious legal ramifications and constitutional questions.
Does revoking Article 370 make Jammu and Kashmir an independent
state? And in that case, does it make India an occupier? Because as long as
Article 370 was tied to the Indian Constitution, India could still maintain its
legitimate claims to Kashmir.
Absent this article, there's now a question mark on India's
legal claim to Kashmir. Another legal snag the government is likely facing is
that Article 370 was considered a temporary provision only to be changed or
amended by the Jammu and Kashmir Constituent Assembly. However, this assembly
was dissolved in 1957, effectively making Article 370 permanent.
In 2018, the Indian Supreme Court further stated that Article
370 had acquired permanent status, making its abolition almost impossible.
Security
Second, this terribly ill-conceived step emboldens Pakistan's
claims to Kashmir. It plays right into the hands of terrorist groups like
Hizbul Mujahideen, Lashkar-e-Taiba and al Qaida's local unit, Ansar
Ghazwat-ul-Hind, providing them with the ideal cause to radicalize Kashmiri
youth.
By holding its own citizens hostage, the Modi government has
turned previously pro-India Kashmiris against India. From a national security
perspective, this is a stunningly ill-advised and appalling step.
Further, the Modi government has repealed Article 370 on grounds
that "integration" of Jammu and Kashmir is the goal to bring peace,
stability and economic prosperity in the region. Contrary to the stated
objective, the evidence proves otherwise.
Now that Kashmir is a union territory of India, will it still be
treated separately from the rest of India with a continued massive military
presence remaining in the state? The case for integration, peace and prosperity
cannot be made through brute force.
But that's exactly what the Modi government has accomplished. As
far as development is concerned, who will invest in a heavily militarized
region?
Hindu nationalism
Fourth, revoking Article 370 has always been part of the
Bharatiya Janata Party's (BJP) manifesto. Essentially, the party's
intent to revoke Article 370 is to redress the wrongs done to Kashmiri Pandits,
the Hindu minority that was ethnically cleansed at the start of
the Kashmir insurgency against the Indian government that
began in the late 1980s. While Pandits are well within their rights to ask for
resettlement, this latest order aims to accomplish the insidious goal of
creating a predominantly Hindu majoritarian state.
Revoking Articles 370 and 35a will now allow any Indian to
reside in the state. This will potentially change the demographics heavily in
favour of India's Hindu majority.
The failure to include Kashmiri Muslims in deliberations and
discussions on the matter will prove costly, and there will likely be
catastrophic consequences for India. There is no reason for Kashmiri Muslims to
trust India ever again. Violence, rebellion, dark days and a war with Pakistan
are, in all likelihood, on the near horizon as a result of India's latest move
against Kashmiris.
Author: Ayesha Ray - Associate Professor, Department of
Political Science, King's College 
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