On August 5 2019, Union Home Minister of India, Amit Shah decisively announced in the Rajya Sabha that Article 370 didn’t allow democracy in Jammu and Kashmir. He added, “Article 370 was the root of terror in Jammu and Kashmir. It is time for it to go... if it doesn't go today, we can't remove terrorism from Jammu and Kashmir.” Later in the day, Prime Minister Narendra Modi tweeted in praise of Shah’s speech, saying it "accurately highlighted the monumental injustices of the past and coherently presented our vision for the sisters and brothers of J&K."
Nearly three weeks later, the BBC published its ground-level report from Kashmir. The report details individual accounts of army brutalities in the aftermath of India’s effective nullification of Article 370. One of the accounts is by two brothers who alleged that they were woken up and taken to an outside area where nearly a dozen other men from the village had been gathered.
"They beat us up. We were asking them: 'What have we done? You can ask the villagers if we are lying, if we have done anything wrong?' But they didn't want to hear anything, they didn't say anything, they just kept beating us," one of them said,
"They beat every part of my body. They kicked us, beat us with sticks, gave us electric shocks, beat us with cables. They hit us on the back of the legs. When we fainted they gave us electric shocks to bring us back. When they hit us with sticks and we screamed, they sealed our mouth with mud.”
In a statement to the BBC, the Indian army said it had "not manhandled any civilians as alleged”.
Villagers across the valley have said that the security forces have been regularly indulging in acts of torture so that people are intimidated not to protest. All of this is occurring contemporaneous to a 50-day siege that Kashmir has been put under. There has been an absolute communication blockade, the state is facing a potential health crisis, and more than 4,000 people, mostly young men, have been arrested. This is pursuant to the BJP government’s attempts at fundamentally altering the current landscape of Kashmiri autonomy.
Article 370 was the basis of Jammu and Kashmir's accession to the Indian union at a time when erstwhile princely states had the choice to join either India or Pakistan after their independence from the British rule in 1947.
Maharaja Hari Singh, the Hindu ruler of a Muslim-majority state, had initially wanted to stay independent. He signed the Instrument of Accession on October 26, 1947, after Afridi tribesmen and Pakistan Army regulars invaded the state, and India agreed to help only after he acceded. The Schedule appended to the Instrument of Accession gave the Indian Parliament power to legislate for Jammu and Kashmir on only defence, external affairs and communications.
In Clause 5 of the Instrument of Accession, Hari Singh said that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of The Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. In Clause 7, he said,
“Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”
Constitutional law expert, Prof. Faizan Mustafa notes that Article 370 was a constitutional recognition of the conditions mentioned in the Instrument of Accession, and reflected the contractual rights and obligations of the two parties.
Article 370 limited the application of the provisions of the Indian Constitution to the state of Jammu and Kashmir. Under Article 370(1)(d), constitutional provisions could be applied to the state from time to time, as modified by the President through a Presidential Order, and upon the concurrence of the state government.
The article allowed the state a certain amount of autonomy - its own constitution, a separate flag and the freedom to make laws.
Article 35A stems from Article 370, and was introduced through a Presidential Order in 1954. It empowers the Jammu and Kashmir legislature to define the permanent residents of the state, and their special rights and privileges. It also forbids outsiders from permanently settling, buying land, holding local government jobs or winning education scholarships in the region.
The abrogation of Article 370 has been a longstanding goal of both the BJP and its ancestor, the Jan Sangh. Lawyer A.G. Noorani notes that the BJP has taken up the baton of fulfilling the Jan Sangh’s Hindu nationalist fantasies. He says, since 1989, L.K. Advani codified this agenda in three demands — a uniform civil code (read: scrapping of Muslim personal law), a Ram temple in place of Babri Masjid at Ayodhya, and the repealing of Article 370. A major step was taken not only by the abolition of the infamous triple talaq, but also by making it a criminal offence. The Babri Masjid was demolished on Dec 6, 1992; Article 370 remained. Now this has also been accomplished. Narendra Modi can now claim that he has accomplished what A.B. Vajpayee and L.K. Advani could not.
However, it must be added that the BJP alone didn’t bear a hostility to Article 370. The Congress, during its tenure in power, had undertaken sufficient steps at hollowing out the provision. The process of erosion began in 1953 with the removal of Sheikh Abdullah from the office of Prime Minister of Kashmir by the Jawaharlal Nehru government on suspicion that he harboured secessionist tendencies. To stay in power, Abdullah’s successors, especially Bakshi Ghulam Mohammed and Mir Qasim, were more than willing to see the Centre expand its tentacles into the State by successively amending or distorting Article 370. In 1954, the central government gutted Article 370, passing Constitutional amendments which expanded its jurisdiction to all subjects in the Union list of powers, and giving the Governor, as opposed to the council of ministers, the final authority to interpret the constitution.
What we saw on August 5 2019, was then the removal of the last vestiges of Kashmiri autonomy. It was equally a warning signal to all of India’s Muslims that the Hindu body politic is uncaring and unstoppable.
Unfolding of events
The signs were ominous in the run-up to August 5. Almost 40,000 CAPF (Central Armed Police Force) troops were deployed in the first few days of August. The Amarnath pilgrimage was called off citing “latest intelligence inputs of terror threats”. Schools and colleges were shut, and tourists were ordered to leave the state as soon as possible. The three most prominent leaders from the state, Omar Abdullah, Mehbooba Mufti and Sajad Lone, were put under house arrest overnight. All internet and phone services were shut down—there was an absolute communication blackout. On August 5, the government imposed restrictions under section 144 Code of Criminal Procedure (CrPC) in Srinagar district with effect from midnight. "As per the order, there shall be no movement of public and all educational institutions shall also remain closed. There will be a complete bar on holding any kind of public meetings or rallies during the period of operation of this order,” an official statement said, according to news agency IANS.
In this backdrop, Amit Shah proceeded to the Rajya Sabha to introduce three important documents. Presidential Order C.O. 272; the said Order supersedes the Constitution (Application to Jammu and Kashmir) Order, 1954. Also, it added Clause (4) to Article 367, making the Constitution of India applicable to the State of Jammu & Kashmir. The second is a Statutory Resolution introduced in the Rajya Sabha, which – invoking the authority that flows from the effects of Presidential Order C.O. 272 – recommends that the President abrogate (much of) Article 370. The third is the Reorganisation Bill, that breaks up the state of Jammu and Kashmir into the Union Territories of Ladakh (without a legislature) and Jammu and Kashmir (with a legislature).
Such a fundamental reordering of Kashmir’s legal and political status was made without the Kashmiris in any manner being involved, or so much as even informed. Noorani notes, ‘The legal mechanics, crippling as they are, were imposed after the Valley was ‘sanitised’ by the army and paramilitary. Kashmir’s police were disarmed. Its civil service was abolished and all forms of communications cut. This itself is a tribute to the rebellious spirit of the people of Kashmir.’
It is noteworthy that major regional parties came in support of BJP’s political move. Shiv Sena, AIADMK, Telegu Desam Party, Biju Janata Dal, and YSR Congress—all extended support to the effective abrogation of Article 370. In a surprise move, Mayawati-led Bahujan Samaj Party (BSP) and Arvind Kejriwal’s Aam Aadmi Party (AAP) also welcomed the Centre’s actions. Kejriwal said on Twitter that he hoped this would bring "peace and development" in the state.
Congress however, seems to have failed to present a solid opposition to the enfeebling of Article 370 and the connected legal changes. On August 6, Rahul Gandhi tweeted: "National integration isn’t furthered by unilaterally tearing apart J&K, imprisoning elected representatives and violating our Constitution. This nation is made by its people, not plots of land."
Gandhi’s position nonetheless appears to be politically unviable to quite a few other party members. They are of the opinion that the party should not go against the sentiment of people, while other leaders are of the view that the party should not change its stance, which was also an election promise during the Lok Sabha elections. Senior Congress leader Janardan Dwivedi has backed the BJP government in public, and said that it is a matter of national satisfaction that a "mistake" done at the time of independence has been corrected.
Congress whip in the Rajya Sabha, Bhubaneswar Kalita, resigned over his party's stance on the issue. The MP claimed that the Congress party was committing suicide by opposing the abrogation of Article 370. Another major development took place when Congress General Secretary, Jyotiraditya Scindia came out in support of the BJP government’s move. "I support the move on #JammuAndKashmir & #Ladakh and its full integration into union of India. Would have been better if constitutional process had been followed. No questions could have been raised then. Nevertheless, this is in our country's interest and I support this," Scindia said in a tweet.
The unfolding of events in this manner has been a clear jolt to any promise of secularism or democracy that successive Indian governments had made to the people of Kashmir. This trust has not only been betrayed by the BJP—which anyway condones and facilitates anti-minority violence throughout the country—but also by seemingly progressive opposition parties that had hitherto shamed BJP for its toxic politics of Hindu nationalism.
Those in favour of abrogating/reading-down Article 370 have repeatedly pointed out that the Constitution recognised it only as a ‘Temporary Provision’. Article 370 is the second Article of Part XXI of India’s Constitution, which is titled “Temporary, Transitional and Special Provisions”. “If there was anything permanent it was Article 1 of the constitution, what was temporary was Article 370,” said Bhupendra Yadav, a BJP Rajya Sabha MP and national general secretary of the party.
This argument has been sufficiently challenged by Prof. Mustafa. Writing for the Indian Express, he explains that the argument of ‘temporariness’ is untenable. Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it. Another interpretation was that accession was temporary until a plebiscite. The Union government, in a written reply in Parliament last year, said there is no proposal to remove Article 370. Delhi High Court in Kumari Vijayalaksmi (2017) too rejected a petition that said Article 370 is temporary and its continuation is a fraud on the Constitution. The Supreme Court in April 2018 said that despite the headnote using the word “temporary”, Article 370 is not temporary. In Sampat Prakash (1969) the SC refused to accept Article 370 as temporary. A five-judge Bench said “Article 370 has never ceased to be operative”. Thus, it is a permanent provision.
Amit Shah also suggested that one of the reasons for the effective abrogation of Article 370 was poor healthcare, poverty, lack of doctors and slow economic growth in Jammu and Kashmir.
The Hindu’s data-analysis of Kashmir’s human-development indices suggests that Mr. Shah’s claim isn’t entirely well-founded. J&K ranked third out of 22 States in terms of life expectancy. 3,060 persons were served by one government doctor in J&K in 2018. Only six States have had lesser people served by one doctor. J&K stood eighth in terms of poverty rate (10.35)%. Goa had the lowest poverty rate of 5.09%, while Chhattisgarh had the highest poverty rate of 39.93%. The state had an infant mortality rate (IMR) of 24 and was placed 10th in the country in 2016. In 2017, Jammu and Kashmir’s Human Development Index (HDI) was 0.68, higher than even States like Andhra Pradesh and Gujarat. Kerala had the highest HDI (0.77) while Bihar had the lowest (0.57).
While this data doesn’t suggest that J&K is one of India’s most prosperous states, it certainly undermines the BJP’s rhetoric that Article 370 had systematically eroded the state’s economic, educational, and healthcare infrastructure.
Critics of BJP’s move are linking it to the economic slowdown that India is currently facing - they say it provides a much-needed diversion for the government.
The last claim made in favour of the reading down Article 370 is that it will facilitate the integration of J&K with the Indian Union. This argument is premised on the supposition that giving special provisions and autonomy to Kashmir would always position it as a state different from other Indian states. And by removing the special status, Kashmir would both symbolically and socially be integrated with India.
It is to be noted that this argument exists in a vacuum without any recognition of the vastly different historic and political landscape that J&K occupies viz-à-viz other Indian states. Nehru himself said in the Lok Sabha on June 26, 1952,
“Do not think you are dealing with a part of Uttar Pradesh, Bihar or Gujarat. You are dealing with an area, historically and geographically and in all manner of things, with a certain background. If we bring our local ideas and local prejudices everywhere, we will never consolidate. We have to be men of vision and there has to be a broadminded acceptance of facts in order to integrate really. And real integration comes of the mind and the heart and not of some clause which you may impose on other people.”
At this point, one must also ask: can true integration ever be achieved through force and coercion? How does the current government expect the citizenry of J&K to ever be approving of its measures if they’re accompanied by a literal siege of the entire state, and day-to-day instances of threats, arrests, and torture at the hands of the armed forces?
A genuine fear that Modi’s critics have is that this move was never really about integration, rather it was a flagrant attempt at altering the religious demographics of India’s last-remaining Muslim majority state. This is about empowering activists who now exclaim proudly, “Aab Hindu Rashtra banega”. A day after Kashmir’s autonomy was scrapped, BJP MLA Vikram Saini said that bachelors in BJP were now welcome to go to Kashmir, buy plots of land and get married to ‘gori’ (fair) Kashmiri girls. The Kashmir Valley will now face demographic transformation and settler colonialism. If Kashmiri Muslims resist, they will be the targets of yet more brutal state violence and be represented as Islamist terrorists; if they do not resist, their silence will be interpreted as support for India.
The constitutional changes to Article 370 and the Reorganisation Bill have also raised several legal concerns. It is firstly to be noted that in order to amend Article 370, the recommendation of the Constituent Assembly of J&K was required. Now, the Constituent Assembly of J&K ceased functioning in 1957. Prof. Mustafa observes, “We have now used Article 370 to insert a new clause in Article 367 and then invoked this clause to convert the constituent assembly of Kashmir into a legislative assembly of a Union Territory. This is a blot on constitutionalism.” Therefore, the Government has indirectly proceeded to do what it could not do directly (i.e., amend Article 370 without the concurrence of the Constituent Assembly of J&K). It is a well established principle that “where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.” (Nazeer Ahmed v King-Emperor, AIR 1936 PC 253, 257).
A second issue, as pointed out by constitutional scholar Gautam Bhatia is the substitution of the consent of the Governor for the consent of legislative assembly of the state.
C.O. 272 says – as it must – that the concurrence of the government of the state of Jammu and Kashmir has been taken. However, Jammu and Kashmir has been under President’s Rule for many months now. Consequently, actually, the consent is that of the Governor. However, there are two serious problems with basing C.O. 272 upon the consent of the Governor. The first is that the Governor is a representative of the Central Government – like the President. In effect, therefore, Presidential Order 272 amounts to the Central Government taking its own consent to amend the Constitution.
There is, however, a more important issue. President’s Rule is temporary. It is only meant to happen when constitutional machinery breaks down in a state, and an elected government is impossible. President’s Rule is meant to be a stand-in until the elected government is restored. Consequently, decisions of a permanent character – such as changing the entire status of a state – taken without the elected legislative assembly, but by the Governor, are inherently problematic.
It is also contended by legal scholars that in seeking to downgrade the status of the State of Jammu and Kashmir into a Union Territory (with a legislature), the J&K (Reorganisation) Act is ultra vires Article 3 of the Constitution. Article 3 authorises the formation of new States, and the alteration of areas, boundaries or names of existing States, but it does not authorise the degradation of the status of an existing state into a union territory.
It is argued that Article 3 of the Constitution cannot be read to grant the power to the Union to convert the status of states into Union Territories, as this power carries with it the necessary implication that the Union could - if it chose - convert India into a “Union of Union Territories” instead of a “Union of States.” This position would then be violative of Article 1, which stipulates that “India, that is Bharat, shall be a Union of States.”
Whose media is it anyway?
On August 9, Reuters, BBC & Al Jazeera reported that a massive protest took place at Soura in Srinagar, and that the security forces fired on the protestors. No Indian channel covered it.
Republic TV’s Arnab Goswami called it "fake news”. On Prime TV, Arnab said, well, shouted,
“If it was fake news, a lie, a dirty and motivated lie by a dying, government-owned British channel, then I want to know and India wants to know - what is your intention BBC?”
The Indian media has long stopped acting as the fourth pillar of democracy, rather it now functions as the second-wing of the executive. As of 2019, the Indian media ranks 140th (out of 180 countries) on the World Press Freedom Index. To put this in context, it ranks below military-run Thailand, war-struck South Sudan, and strongman Duterte-run Philippines. Pakistan, which serves as India’s bogeyman for lack of democracy, is almost neck-to-neck with India on this list, being placed 142nd.
Omar Salim, a urologist at the Government Medical College, had appeared at Srinagar’s press enclave to speak to the media, wearing a doctor’s apron. He held a placard that said he was making a “request and not a protest”.
He had barely spoken for 10 minutes when the police arrived and whisked him away to an unknown location, making it clear the authorities would not tolerate any questioning of their actions. Efforts to find out where the doctor had been taken were thwarted by the information blockade. Government spokesperson Rohit Kansal, the only official interface between the government and journalists, skipped the evening media briefing the second day running.
This news, like many others of enforced disappearances, finds not a single mention on any primetime news networks. In fact no mainstream news organisation has so much as even covered this story online or in print. The BBC report mentioned at the beginning of this article has either being entirely overlooked or dismissed as “western propaganda” by the few media outlets that chose to engage with it.
On September 11 Harsh Vardhan Shringla, the country’s ambassador to the United States remarked that some sections of the American media, especially the liberal media, are focussed on a perspective on Kashmir that has being "pushed forward" by those who are "inimical" to India's interest.
The Wire reported that a teenage boy from Pulwama in south Kashmir committed suicide after being beaten up by the army. His sister says that he was picked up by the forces. That evening he confided to her that he had been brutally beaten up. He locked himself in a room and consumed poison late that night. On September 19 he was reported dead by the hospital.
Three days later, Prime Minister Modi was received by an exuberant crowd of more than 50,000 Indian-Americans in Houston, USA. There was an excited chant of “Howdy Modi”. He replied with comfort, “everything is fine in India.”
Views expressed are solely those of the author.
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About the Author
Parth Maniktala holds a Bachelors in English from Hans Raj College, Delhi University, where he also served as the President of the Debating Society. He has been recognized as one of Asia’s top 10 speakers at the United Asians Debating Championship held in Cambodia. He has also been the chief adjudicator of the annual national schools debating championship of Nepal. Apart from debating, he has a keen interest in cinema and literature. Currently, Parth is pursuing his L.L.B. Degree from Campus Law Center, University of Delhi, India. Parth is also an Editor at Polemics and Pedantics Magazine.