Constitutional loss in Jammu and Kashmir

By Pushkar Raj. Dated: 9/9/2019 12:02:49 AM

The scrapping of Article 370 and Jammu and Kashmir's re-organisation sets a precedent for similar high handedness approach to 'integration' in relation to many north eastern states that enjoy similar relationship with the centre as Jammu and Kashmir did.

Last month, the government of India with a presidential reference abrogated Article 370 of the constitution that gave special status to the state under its agreement of annexation with India in 1947. Under the article the state had its own constitution, flag and assembly to guard its autonomy, but now it would be governed from New Delhi.
Constitutional impropriety
On face, it seems within the government's jurisdiction, but for the reason that the said article itself defined its terms of demise providing that such a recommendation must come from the Constituent Assembly, later replaced with the words "legislative assembly" by a government order in 1952, makes it untenable. As per law the recommendations must have come from the legislative assembly of the state, which was recently dissolved. However, the government decided to bestow all the powers of the assembly to an unrepresentative governor, empowering him to recommend to the president that he issue an order effecting the change.
This is stretching the rule of law to a farce and sets a new low in political machinations for political gains at the cost of the constitutional propriety. One would not fault the government to have taken this step after duly calling election and gaining consent of the assembly, but the will of a nominated governor is not equivalent to will of the people.
Article 370 was an important element of the constitution, serving as an extension of the principle of federalism that provides for division of powers between the central government and the states under Part IX of the constitution. Reducing a state to a status of a union territory and usurping its powers through an executive order is tampering with the federal character of India, which according to Article 1(a) of the constitution "shall be a union of states." The action sets a precedent for similar high handedness approach to 'integration' in relation to many north eastern states that enjoy similar relationship with the centre as Jammu and Kashmir did.
Fall of Freedom and secularism
In the aftermath of the decision, the government has taken tough security measures in Kashmir. The Internet is shut down, paralysing communication obstructing treatment in hospitals, education in schools and communication with loved ones. More than 3,000 people are in custody and police are monitoring streets. It is a state of emergency asphyxiating more than 7 million people and all seems to be happening lawfully with public support. On the contrary people should worry that what goes on in Kashmir today can happen in any part of the country tomorrow.
In the name of fighting terrorism in Kashmir, the government has acquired extraordinary powers. It has recently acquired powers to declare an individual a terrorist. This is bizarre, as any intellectual could be dubbed an "Urban Naxal", called anti-national and linked with terrorism. Given the government's grip on social and electronic media and the status of the police, it is a stick in the hands of any government to crush any dissent in a pluralist country needing no formal declaration of civil emergency.
While the regions of Jammu has welcomed the government's action, the Kashmir is extremely resentful amid reports of protests and curfews revealing religious polarization in the state, as Jammu comprises majority of Hindus while Kashmir is nearly all Muslim. This is a depressing news for secularism as Jammu and Kashmir, the only Muslim-majority state, co-existed with majority-Hindu India under the assurance of secularism under which it felt protected. That protection seems to have gone now, at the same time unnerving about 170 million Muslims in the rest of the country who already feel threatened by an increased communal polarisation.
On a positive side, the move has benefited tens of thousands of west Pakistani refugees and scheduled castes who were deprived of basic human rights like voting and employment in government and could not buy or sell property despite living in the state for more than 70 years. The political leadership of the Kashmir Valley failed to rise to the expectations of these marginalized groups despite several protests. Besides, hundreds of thousand Kashmiri Pandits too might now hope to dispose their properties of honourably and feel less exiled than earlier as revocation of Article 370 was one of their main demands.
No easy road to peace
The government's argument is that it has taken this step for greater capital investment from burgeoning corporate sector of the country boosting development of the region and providing employment to youth, weaning them away from radicalization. This could have been possible in a secular India where rule of law was sacrosanct, but in today's highly communalized atmosphere, it does not hold much promise. It is noticeable that Islamic radicalization in Kashmir is closely linked to the rise of Hindu fanaticism in Indian polity and governance. It is unrealistic to wish one away while stoking the other, as manifested in unabated lynching of Muslims in the country and acquittals of the accused.
The government's action is likely to be fiercely resisted and lead to a long drawn battle with militancy in the valley. With political support from Pakistan and Taliban coming closer to power in Afghanistan, prospect of peace in Kashmir seems far off from horizon.
(Another version of article was published in Asia Times)
(Pushkar Raj is a Melbourne based Researcher)

 

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