As we approach Kashmir Day this year – the first since abrogation of Article 370 – it is important to pause for a moment and take stock of unprecedented democratic hypocrisy that is Modi’s India.
On Monday, August 5, 2019, myth of a secular India – inclusive of its many minorities – was finally buried by the right-wing, fascist, Hindutva government of Narendra Modi. And with it, Indian presence in Kashmir came at par with Israeli occupation of the Palestinian territories; except that the hotbed of Kashmir now also forms a flashpoint between two nuclear states, and center stage for the new Great Game in our region.
But before deliberating on contours of this new Great Game, it is important to first assess the precise constitutional paradigm at play.
The illegal annexation of Kashmir into India’s Union territory was done through a Presidential Order (CC.O. 272), which abrogated the Constitution of Jammu and Kashmir, and (in essence) repealed Article 370 and 35A of the Constitution of India.
So, what is Article 370 and why did it matter so much?
Article 370 of the Indian Constitution was the provision that endowed special autonomous status to the region of Jammu and Kashmir, and formed the basis of its accession to India, at a time when these erstwhile princely states had the choice to either join India or Pakistan, post-independence in 1947. Article 370 came into effect in 1949, and empowered the ‘Constituent Assembly’ of Jammu and Kashmir after its establishment to choose which provisions of the Indian Constitution could be applied to the region, and also permitted the said assembly to abrogate the Constitution of India in order to choose its own measures of complete self-governance.
In this context, after consultation with the Constituent Assembly of Jammu and Kashmir, the 1954 Presidential Order was issued, introducing Article 35A into the Indian Constitution. This constitutional regime permitted Kashmir’s domestic legislature to define permanent residents of the geographic territory, specify the provisions of the Indian Constitution that shall apply to Kashmir, while allowing Kashmir to make its own laws in all matters except finance, defense, foreign affairs and communications. Article 35A, referred to as Permanent Residents Law, also prohibited outsiders from buying land or permanently settling in the region, and barred female residents of Jammu and Kashmir from property rights in the event that they married a person from outside the State. As a result, the region of Jammu and Kashmir had its own constitution, its own flag, citizenship, autonomy over the internal administration of the region, while preventing outsiders from owning property within its territory.
In essence, this constitutional arrangement ensured that India’s legal and constitutional control over Kashmir was only to the extent, and in such matters, as the people of Kashmir (through their elected representatives) had chosen to accede. This ‘choice’ of Kashmiri people, exercised through the Constituent Assembly of Jammu and Kashmir, formed the only moral and constitutional basis for India’s presence in the region.
Within India’s constitutional framework, Article 370 and its consequent effects could (technically) be removed with the permission of the Constituent Assembly of Jammu and Kashmir. However, the Constituent Assembly of the region was dissolved in 1957, thereby making Article 370 and its effects permanent in nature. This is not a sympathetic analysis or opinion; in fact, the Supreme Court of India ruled in 2018 that Article 370 had acquired “permanent status making its abrogation impossible.”
Nonetheless, through a series of presidential orders, citing lack of a state government, Modi’s right-wing extremist government decided to change the language of Article 370, substituting the word “Constituent Assembly” with “Legislative Assembly” in 2018.
Even if the amendment in Article 370 is deemed valid – requiring consent of the “Legislative Assembly” instead of “Constituent Assembly” of Jammu and Kashmir, for any change in the State’s constitutional status – the same was not adhered to by the Modi government. In June 2018, the Legislative Assembly of Kashmir was ousted. And on December 18, 2018 the State of Jammu and Kashmir was placed under BJP’s right-winged presidential rule, in terms of Article 356 of the Indian Constitution, and the powers of the Legislative Assembly were thereby vested in the union legislature.
Importantly, Article 370(3) of the Indian Constitution stipulated that “the President may, by public notification, declare that this article shall cease to be operative” or shall be operative with “exceptions and modifications”. For this purpose, however, “recommendation of the Legislative Assembly of the State” was “necessary before the President issues such a notification.” However, since the Legislative Assembly of Jammu and Kashmir was not functional, the President merely consulted his own appointee, the Governor of Jammu and Kashmir. The consultation, therefore, was neither meaningful, nor was such consultation a representation of the voice of Kashmiri people. As a result, India’s President consulted with himself (i.e., with a Union appointed Governor), and deemed it to be sufficient for the purpose of “recommendation” of the Kashmiri people (under Article 370(3)).
In essence, Modi’s Hindutva government took the democratic rights of at least 13 million Kashmiris away, thereby making a complete mockery of the façade that was secular democratic India.
These draconian measures by the Modi’s fascist regime have clearly not been accepted by the local populi. To this end, anticipating the local blowback, in the weeks preceding this constitutional abrogation, Modi’s attack-dog, Ajit Doval, mobilized the Indian military to station some 40,000 troops in the region. Even after six months, curfew remains imposed in the occupied territory, and all telecommunication networks remain unavailable throughout the region of Jammu and Kashmir. Additionally, Modi’s government has driven out foreign tourists from the region and journalists remain barred from free movement in the Valley. Importantly, according to India’s jingoistic media itself, the Modi government has imposed communications blackout across Jammu and Kashmir more than 51 times in 2019 alone.
So, does the suspension of Article 370 make Jammu and Kashmir an independent State? If so, is India now an illegal occupying force in the region? Because the legitimacy of Indian presence in Kashmir predicated itself of Article 370, and the (partial) consent of the Kashmiri people. However, despite the fact that this fundamental premise has been abrogated, the inert conscience of the international community remains impotent. Denizens of democracy and champions of human rights continue to turn a blind eye to Indian fascism in Kashmir, just as it has to Israel’s occupation of the Palestinian territories.
For Pakistan’s purposes, a long diplomatic struggle has just started. Our interests in Kashmir are multi-faced; however, three important issues tie our collective national soul to the fate of Kashmir: 1) it is a soil that holds the blood of many of our Shuhadas over the past 70 years; 2) it is a nation (it must be called that, after India’s repeal of Article 370), that has been our brother, in arms and blood, over the past seven decades; and 3) it is a place where our rivers, the very lifeline of our nation, originate. And BJP leadership has already expressed outright that they will attempt to shut down Pakistan’s water supply, ushering in a drought that the country cannot sustain. If this claim of BJP sounds to you like a statement of Yazid in the battlefield of Karbala, you are not alone. And, by virtue of the same analogy, if Karbala has taught us anything, it is this: that, as a last resort, in such circumstances, a fight till ‘the last drop of blood’, is not only necessary, but also honorable.
In the days that followed the Kashmir travesty of August, 2019 Modi’s fascist regime has doubled-down on its policy of intolerance and ethnic/religious persecution. Specifically, on December 11, 2019 Modi’s government passed the draconian Citizenship (Amendment) Act, 2019, which refuses citizenship to Muslims who migrated to India from neighboring countries. This, for the record, included several servicemen of the Indian Army, who claimed to have fought wars for their country, and now found themselves without a right to citizenship. The resulting nation-wide protests across India have remained entirely ineffective in convincing the Hinduvta regime to conform to any basis of constitutional norm. Modi seems to be fulfilling the promises made by generations of right-winged Hindu militants – that India has no space for minorities, especially Muslims.
Deepening the issue, when the abrogation of Article 370 and imposition of CAA were challenged before the Supreme Court of India, an inert court turned a deaf ear to the misery of its populi. Challenge to Article 370 was initially put in judicial cold-storage, as the court delayed hearing for several months, without granting any meaningful interim relief. And now that the hearing has commenced, judicial conscience seems to be toeing the fascist Modi line.
Is all this without design? Is the Indian Deep State and establishment simply toeing the whimsical agenda of one right-winged Prime Minister? Or are we at the cusp of a new Great Game in South Asia. Are other players involved in the happenings of South Asia? Is India participating in the larger agenda of regional and international powers? If not, can India’s collusion with Israeli military and intelligence operatives (now part of admitted record) be explained? Without tacit support from global powers, could India really ignore express directions of the United Nations Security Council on the issue of Kashmir? Would the world’s response really have been luke-warm in the face of unabashed human rights violations if regional interests were not at play?
Is it just a coincidence that international pressure against projects such as CPEC correspond with skirmishes on Pakistan’s eastern border? Or the fact that our Eastern border sees heightened tension whenever Pakistan’s rhetoric on Kashmir gains momentum at the international stage? Can we really assume that roadblocks in the Afghan peace process and a possible expansion of U.S.’ conflict into Iran are isolated from the simmering conflict in South Asia? Are India’s (unsuccessful) efforts to blacklist Pakistan at the FATF not a ploy to weaken our financial ability to face conflict in the region?
These are tough times for Pakistan, and (unmistakably) for India too. The conflicts that have plagued the Middle East over the past two decades seem to be reaching our shores in South Asia. Thus far, Pakistan has avoided the sectarian and religious infighting that has all but destroyed large parts of the Middle East. We must take pride in being the only country, post 9/11, that has fought and won its ‘war against terror’. But this victory will only mean something if we can help foster lasting peace in our region. For this, Pakistan must take preemptive measures to rethink its international and regional partnerships. We no longer live in a unipolar world dominated from across the Atlantic. The emergence of China and resurgence of Russia will play a dominating role in our neighborhood for the foreseeable future. We must take this precarious moment in time – now – to take steps that help safeguard our national interests and regional security for decades to come.
The writer is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at: [email protected], or Twitter: @SaadRasooll
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