On August 5, 2019, The Government of India voted to repeal Articles 370 and 35A and reorganised the state of Jammu and Kashmir into 2 union territories — Ladakh (which will not have its own state legislature) and Jammu & Kashmir (which will). These decisions proved to be extremely divisive despite Amit Shah, the home minister and person who introduced these amendments, promised it would lead to development, national integration, and an end to terrorism. The reason this decision seemed so controversial is because of a long and complicated history between the Government of India and Jammu & Kashmir that this article will attempt to delve into.
The Accession of Jammu & Kashmir to the Union of India
This complicated history begins in 1947 when British colonisation ended and the region was partitioned into the countries of India and Pakistan. Jammu & Kashmir was a Princely State at this time, meaning it was ruled by a hereditary local monarch who accepted the Paramountcy of the British crown rather than direct British Rule. At the time of Independence and the Partition of India and Pakistan, all the Princely states were given 3 choices- either they could join India, join Pakistan, or remain independent. Jammu & Kashmir has a complicated demographic structure. Ladakh (with about 2.5% of the population) is almost evenly split between Muslims and Buddhists with a small Hindu minority, Jammu (with about 44% of the population) has a Hindu majority and a Muslim minority and Kashmir (with about 54% of the population) has a population that is almost completely Muslim. All of this means that there is a Muslim majority in the state, but the population of other religious minorities is not insignificant. Additionally, the ruler of the region in 1947, Maharaja Hari Singh, was Hindu. Moreover, the people of the region have always valued their identities as Kashmiris over any religious affiliation. All of this made the question of whether to choose India or Pakistan highly complicated, exacerbated by Kashmir & Jammu’s geographic position between the 2 nations. In the end, the Maharaja decided that Jammu & Kashmir would remain independent.
However, shortly after independence, the Pathan tribesmen from Pakistan began attacking Jammu & Kashmir as Pakistan has always staked a claim over the region due to the Muslim majority. Maharaja Hari Singh wrote to the Indian Government asking it for military support, which they provided on the condition that he acceded to the Indian union. The Maharaja agreed to this on the condition that Jammu & Kashmir’s autonomy would be maintained and could not be amended or curtailed- a fact mentioned in the instrument of accession. Additionally, a referendum was to be held in order to confirm the Kashmiri people’s desire to join India. This referendum was, however, never actually held.
Articles 370 and 35A are the laws through which Jammu & Kashmir is accorded its special status. Article 370, under Part XXI of the Indian Constitution — Temporary, Transitional and Special Provisions, guarantees Jammu And Kashmir’s autonomy. No Indian Law (other than Articles 1 and 370) shall apply to Jammu and Kashmir without prior consent of the state legislature. This law is temporary only in that Jammu & Kashmir had full power to reject it, which it decided not to do. Article 35A prohibits non Kashmiris from owning land there. Additionally, if a Kashmiri woman marries a non-Kashmiri man, she loses her property rights, though she retains her Kashmiri citizenship.
These laws are controversial with Non- Kashmiris for two reasons. The first is because Jammu & Kashmir are accorded special status. And while Jammu & Kashmir does enjoy greater autonomy than any other Indian state, there are 10 other states that enjoy a special status within the Indian Union. The second has to do with ownership of land. Non-Kashmiris often feel it is unfair that they cannot own land in Kashmir. However, at least 7 other states and Union Territories have restrictions on people from other states owning land there, proving that this ‘exclusivity’ when it comes to access to land and land ownership, is not limited to Jammu & Kashmir.
View this post on Instagram
“ Those who think of all states as having just one kind of relationship with the centre are neither aware of Indian diversity nor have they read various provisions of Article 371(A to I) as applicable to states other than Jammu and Kashmir” – Faizan Mustafa in their wonderful piece “Article 370, Federalism and the Basic Structure of the Constitution”. I urge you all to read this right away. Find link in my bio. PS: One country – One law is not a real thing!
Political unrest in Jammu & Kashmir is widespread. Over the last 70 years, Article 370 has often been misused to impose Governor’s rule or President’s rule on the state, thus effectively ignoring democratically elected governments. Reports of misuse of funds and corruption are also widespread. Thus, political instability is widespread in the region. Angered by this — and government intervention that is seen as unnecessary and unwanted in the region — anti-Indian sentiments began to rise.
This, combined by foreign extremism in the region leads to armed forces being deployed here in heavy numbers. Since Kashmir is defined as a ‘disturbed region’, the armed forces deployed here are protected by the Armed Forces (Special Powers) Act or AFSPA, a law that (among other things) says any officer can shoot to kill if he sees it as ‘necessary for public order’, destroy any shelter from which armed attacks are ‘likely to be made’, and arrest without a warrant with whatever ‘force as may be necessary’. It also protects members of the armed forces from any prosecution, suit or legal proceeding, unless the government sanctions it, which has never been done before. All of this leads to a cycle of insurgency, counterinsurgency, and violence as the Kashmiri people, angered by military intervention and the Human Rights excesses that take place, begin to protest Indian rule more than ever before.
Kashmiris often feel as though they are treated as second class citizens within India and not shown basic respect and dignity. A fact that was highlighted when a video came to light showing an army officer forcibly tying a young Kashmiri man to the front bumper of his jeep in order to deter stone pelters. As a result of incidents like this, anti- Indian sentiments increase once again resulting in low voter turnouts as the people of the state don’t see the point in engaging in democratic activities in a country where they are not treated as equal citizens.
Wars and military stand-offs also often destabilise the region. The balance of power between Pakistan and India in and around Kashmir is a delicate one that is often broken by extremism and military countermeasures like the Pulwama Attack earlier this year which killed 40 Indian soldiers and led to Indian bombings In Pakistan.
The BJP and Articles 370 and 35A
The BJP (Bharatiya Janata Party) is the ruling party in India with majorities in both houses of parliament. While campaigning for the Lok Sabha elections, the BJP has always maintained the unification of Jammu & Kashmir with India as a core part of its manifesto. It sees these special measures for maintaining the region’s autonomy as posing a threat to India unity.
Furthermore, the RSS (the organisation that is the ideological parent of the BJP) has always spoken of its vision of ‘Akhand Bharat’ or an undivided India composed of India, Pakistan, and Bangladesh. From this view, the unification of Jammu & Kashmir under the control of the Central Government is a step on the road to fulfilling this dream.
Changes caused by the decision to scrap Articles 370 and 35A
What the Lok Sabha, the lower house of the Indian parliament, has voted to do is repeal articles 370 and 35A. The members of the Lok Sabha led by the majority party — the BJP — interpreted them as being temporary measures that prevent the region’s full development and are, instead, leading to corruption, underdevelopment, fiscal mismanagement, and political stagnation. If this happens, all laws of the Indian Constitution will be applicable in the region. Legislatures will be elected for five years instead of the customary six, Right to Education (a fundamental right in the rest of the country) will now be full operational allowing the people of the region better access to government institutions and compulsory education up to the age of 14, all Right to Information (A law that allows Indian citizens to make their leaders accountable through demanding access to records) provisions followed in the rest of the country will be followed here as well (Jammu & Kashmir has separate Right to Information laws from the rest of the country), Reservations for Scheduled Caste and Scheduled Tribe Groups will be made mandatory in Jammu & Kashmir government jobs and universities. Amit Shah, The Home Minister, stated this would also lead to better political, economic, and social progress for the region.
Meanwhile, most of the people in Kashmir are unaware of decisions taken and how this shall impact their lives. Section 144, curtailing the right to movement, has been imposed. Political leaders and former Chief Ministers like Omar Abdullah and Mehbooba Mufti have been placed under house arrest. The state is experiencing its 51st internet shut down this year despite the internet being declared a basic right by the UN. Telephone lines have been disconnected. The Amarnath Yatra — a yearly pilgrimage- was cancelled and all the tourists asked to leave the region because of the threat of terror in the week preceding this decision. While the world debates the legality and morality of this decision and the outcome, most of the people affected by it have no idea what’s happened. Additionally, there are now a total of 46,000 troops in the region. This has led to a spread of panic and anxiety in the region as people’s movements are closely watched over by the armed forces.
Which part of 'Kashmir is now ours' are you applauding? Thousands of military troops sent there to invade their land? Ban on their internet? Silencing them? House arresting their own leaders? Forcefully vacating tourists? Snatching human rights of Kashmiris?#WithKashmir
— The Indian Muslimah (@indianmuslimah_) August 6, 2019
“You are going to muzzle us and blind us and then you are going to make your decision behind this tall black wall that you have carved out between Kashmir and everyone else.” https://t.co/utk3hfh7UG
— sanna wani (@sannareya) August 7, 2019
The way the bill scrapping Articles 370 and 35A was passed did not follow due precedence. In order for a bill applying to Jammu & Kashmir to be passed, it has to be approved by the state legislature. Since, currently, President’s rule, rule by the president once the state government has been dismissed, has been imposed on the state, the ruling party interpreted this to mean that the President’s assent is enough for the bill to pass.
Additionally, “The Instrument of Accession” very clearly mentions that the autonomy of the state cannot be amended by any Indian Law. This makes the bifurcation of the state and consequent demotion of the territories to Union territories illegal. Rejecting the autonomy of the state despite this being a pre-condition for accession would make the very instrument of accession void.
None of those directly affected by these decisions were consulted. The representatives of the People’s Democratic Party — the only Kashmiri party in attendance- tore a copy of the Constitution and walked out in protest.
Threat to Indian Federalism
India follows a system of asymmetric federalism where the centre has more power than most of the states, but certain states like Jammu & Kashmir (before the passing of the bill scrapping Article 370 and 35A) and Maharashtra have more autonomy than others. This could range from fiscal independence or almost total autonomy depending on the state in question and its unique circumstances. Such flexibility allowed the Indian government to accommodate a wide range of opinions and identities within one structural unit.
However, in the wake of these recent decisions, this federal structure is being called into question. Federalism often serves as a check against authoritarianism on the part of Central Authorities. However, if the central government is so powerful that it can give and reject autonomy to regions as it sees fit without even requiring consultation from those involved then this federal structure is entirely a farce being thrown up by the Indian government. For real federalism and power sharing systems to exist, states must have final say on state matters and the Centre cannot be allowed to overstep its jurisdiction the way it has done.
Response of the country
The response of the country to the announcement of these decisions was extremely split. Some hailed it as a ‘historic decision’ that would have far reaching consequences and lead to prosperity and development. Meanwhile, others are strongly in opposition to it referring to it as a big mistake on the part of the Indian Government and mobilising against this.
The political cadre of the country were also split with parties far ranging in ideology like the BSP (Bahujan Samaj Party), TDP (Telugu Desam Party), and AAP (Aam Aadmi Party) backing the government while parties like the PDP (People’s Democratic Party), INC (Indian National Congress), NCP (Nationalist Congress Party), TNC (All India Trinamool Congress Party), and DMK (Dravida Munnetra Kazhagam) were vehemently against it.
The state of Indian Democracy
In light of all these factors, Indian Democracy does not seem to be in good shape. On the same day as this bill was passed, the surrogacy bill that prohibits gay couples having children via surrogate and seems to punish women for their independence was also passed. Another bill passed was the transgender protection bill, which many Indian trans people have been protesting against since its initial introduction in December 2018 because of the way it has discarded the bodily autonomy of trans people and tried to narrowly define them in a way that does not protect them at all.
In fact, in the 37 sitting session of the Lok Sabha (lower house), 35 bills have been passed. None of them went to any committees for detailedreviews. Rather than inspiring the vocal tradition of Indian democracy, it seems as though the majority is ruling by force and pushing forward legislation with little thought of how it may affect those they are trying to protect.
The ramifications of this repeal, however, are yet to be seen and a clear picture will likely only emerge once internet and telephone services have been restored to Jammu & Kashmir and the situation there has normalised.
Featured Image via Maps of India