Let us not pretend
The effective abrogation of Article 370, for all intents and purposes, by the Modi-Shah government is nothing short of an unholy constitutional hack.
Let us not pretend. The effective abrogation of Article 370, for all intents and purposes, by the Modi-Shah government is nothing short of an unholy constitutional hack. It is an elaborate swindle carried out on the people of Kashmir in an unseemly Machiavellian spirit. Just like that, the central government, with an arrogant flourish of the pen, authored a Presidential Order, on the 5th of August, instantaneously erasing the autonomy of twelve million people. In altering destinies with such cavalier disdain the government showed no compunction: not only did it revoke the special status conferred by a political contract between the Parliament of India and the Constituent Assembly of Jammu & Kashmir—an agreement etched into our constitution and embodied in Article 370—but also, in an unprecedented move, it has callously bifurcated the state into two union territories to literally humiliate a people who have been demanding more autonomy. On the 6th of August, the government notified another presidential order which operatively sounded the death knell of Article 370, abrogating all its clauses for posterity.
The relationship between the state of Jammu & Kashmir and the Union of India has been torn to shreds by the two Presidential Orders, 272 and 273, promulgated on the 5th and 6th of August respectively and the passage of the Jammu and Kashmir Reorganization Bill. The dubious legal architecture of said bill and the two presidential orders amounts to a heist on the spirit of our constitution and a unilateral arbitrary reneging on the promise to uphold the autonomy of Jammu & Kashmir. This promise was not just rooted in the Instrument of Accession that Hari Singh signed in October 1947 but, more importantly, also in the subsequent Constitution of Jammu & Kashmir that was freely created and adopted by a constituent assembly in 1957, in an exercise of self-determination—thus giving the merger of the state with India the dignity of popular consent, much more than any Instrument of Accession, being the will of one man, could ever possibly do.
The government has, in effect, amended the constitution without going through the amending process. By using the powers conferred under Article 370 clause (1), by a presidential order, it has extended all provisions of the Indian constitution to the State of Jammu and Kashmir and modified Article 367 by adding an additional clause to it, namely clause (4), which conveniently substitutes “Legislative Assembly of the State” for the expression “Constituent Assembly of the State”. Having effected this constitutional monstrosity, the government, by a subsequent presidential order, 273, proclaimed on the 6th of August, has now abrogated Article 370 by using clause (3) of the said Article which upon the above changes in interpretation, in the light of the modified Article 267 clause (4), merely required the concurrence of the Legislative Assembly—the functions of which are deemed to be performed by the Parliament when the assembly stands dissolved. Momentous constitutional changes have been made impacting millions of people, affecting the terms of the historical association of a people with India, in a manner which was hasty, clandestine, and unbecoming of any modern democracy.
The constitutional jugglery of Amit Shah might still pass legal muster—perhaps only just, by the skin of its teeth, and only because judges might rely on the vacuous letter of the law, on empty legalese—but, surely it has already failed in the court of the people of Kashmir who have been wantonly, wilfully, denied a voice in the shaping of their own destinies; dialogue, consultation, persuasion, and every other valuable thing that nourishes a democratic polity has been sacrificed at the altar of questionable constitutional technicality. A festering wound has been inflicted at the very heart of the arrangement which bound India to Jammu & Kashmir; such wounds do not heal easily—they have a way of finding a niche in the collective memories of people who are slighted. In its unrepentant, audacious dance of naked triumphalism, the regime in New Delhi has ravaged the spirit of the political contract with Srinagar which was assiduously crafted by Nehru, Patel, and Sheikh Abdullah.
Certainly, the BJP is not solely responsible for the increasing alienation of people in Kashmir. The Congress too, in a large measure, must take the blame. Truth be told, Article 370, in any case, was nothing more than an empty vassal. Successive presidential orders beginning from 1954, had chipped away at its substance. When Jammu & Kashmir had acceded to India, the Parliament had the right to legislate only on matters pertaining to Defence, Foreign affairs, and Communications as part of the arrangement incorporated in the Instrument of accession. The autonomy promised to the state had dwindled significantly, and presently more than 250 articles of the Indian Constitution were already extended to the state. Article 370 had already been reduced to an embellishment which allowed the state to have its own constitution, and its flag; but, in operative terms, there wasn’t much autonomy to be had. This explains why the most vocal demand of the mainstream political parties in the state, for more than three decades, was a restoration of autonomy.
The only substantive “special status” that Jammu & Kashmir enjoyed was its ability to control, regulate, and legislate laws concerning the ownership of land, under the provisions of Article 35A. The net effect of the recent constitutional coup— I don’t know what else to call it—has now paved the way for non-residents to buy property in the valley - something that might have an impact on the existing demographics in the state, and will surely be widely resented.
The legal banter about the constitutionality of the somewhat unprovoked and rash decisions of the Modi government will continue endlessly on prime-time TV, newspaper columns, and even the Supreme Court when it decides to entertain the two PILs by ML Sharma and Tahseen Poonawalla pending before it. To my mind, the legal angle—important as it may be—is not what constitutes the kernel of the problem. The sublime tragedy is that the people of Kashmir have been silenced in the contestation that rages on about their future. The optics, too, look horrible: Kashmir is under lockdown. The whole state is incommunicado. The entire political leadership of the state is under house arrest. The internet is down, the phone lines are out. Local newspapers are gagged. The ominous visuals of empty streets with gun-toting military personnel hardly make for a pretty picture. The entire population in the valley is virtually in a prison with dwindling food and medical supplies. There are sporadic reports of seething anger, detentions, and possibly some loss of life.
There is no other way of saying this: our much-vaunted democracy—once the conscience keeper of the world, not so long ago—could well be witnessing its darkest hour. Our metamorphosis from a state that had a somewhat naïve Gandhian insistence on morality to a new-found Machiavellian penchant for aggrandisement and power, is now complete. In a short span of time, the Modi-Shah team has rendered the Indian state completely unrecognizable from its previous more benign versions; we now seem a lot closer to Israel in our disregard for scruples.
The essence of any democracy is the consent of the governed. It surely does not look like that in Kashmir right now which has close to half a million Indian troops breathing down the necks of ordinary residents. I am not at all faulting our security forces. They put their lives on the line every moment for the sake of our nation; yet, it is the very nature of prolonged military presence that wreaks havoc on the ordinary lives of citizens who must undergo intrusive surveillance in their own backyards.
The jubilations in the rest of India are quite along the expected lines, though unfortunate. It is a result, partly, of the victory of Hindutva over the hearts and minds of the average Indian. A heady dose of muscular nationalism—based on manufactured hatred against the Muslim minority—surely will motivate people to bask in this glorious victory; the taming and dismemberment of a Muslim dominated province, the only one, is another feather in the cap of the BJP. It is too much of a nuance for people to either understand or appreciate that the design of the Indian Constitution allows for asymmetrical federalism, and that it is not just Jammu & Kashmir but many other states like Mizoram and Nagaland which enjoy special provisions. The Congress is a divided house and the opposition is down on its knees—unwilling or unable to challenge the will of the government, fearing a popular backlash, or perhaps because of the anxiety to avoid being labelled as anti-nationals.
But think about it—how are those who gloat over the misfortunes of others, or get vicarious pleasure from the tribulations of a people, their fellow citizens, any different from the cheer-leaders of public lynchings?
Syed Areesh Ahmad teaches Political Philosophy at Ramjas College, University of Delhi.