What has happened is a stroke of legal genius: the provisions of Article 370 have been used to render it meaningless and toothless by deleting all the egregious provisions of Article 370 that were seen as an obstacle to the closer integration of the state with rest of the Indian Union.
By Sushant Sareen
History has been created on 5 August 2019, when Home Minister Amit Shah announced sweeping constitutional changes in the state of Jammu and Kashmir. For days now, speculation about what the government was up to in the state was palpable. All sorts of rumours were floating around but no one was quite sure what was going to come. Even those who were convinced that some big political and constitutional change was in the offering were mostly anticipating the scrapping of the contentious and controversial Article 35A which had been inserted in the constitution through the back door. Some were wondering if Article 370 was going to be on the block. And then there were rumours of reorganisation of the state — Trifurcation into the three regions of Kashmir, Jammu and Ladakh. No one could have imagined that not only will 370 go, but also 35A and the state will be bifurcated with Ladakh becoming a Union Territory (UT) and Jammu and Kashmir also being given the UT status, all at once.
There is however some ambiguity of what exactly has happened. If the notification issued is anything to go by, then a tectonic shift has taken place merely by issuing a Presidential Order under the provisions of Article 370 itself. Article 370 has not been abrogated — that would have required the long winded constitutional amendment process followed by an endorsement by the ‘constituent assembly’ of Jammu and Kashmir state; what has happened is a stroke of legal genius: the provisions of Article 370 have been used to render it meaningless and toothless by deleting all the egregious provisions of Article 370 that were seen as an obstacle to the closer integration of the state with rest of the Indian Union. The bottom-line is that the government doesn’t need to take a vote on this issue. But, what is not clear till now is what happens to Article 35A. Does it get deleted automatically or will it go through another Presidential Order?
The bifurcation of the state and making the new entities UTs is also a bit of a mixed bag. Ladakh will be jubilant over getting the UT status, a long standing demand of the Buddhist majority in that region. The people in Kargil will however not be happy and something will have to be done to bring them around. As for the new or rump Jammu and Kashmir UT, this could be the worst of both worlds. Jammu will be furious over being lumped with Kashmir. There has been a long standing demand in Jammu for separate statehood because Jammu didn’t want to live under the yoke of Kashmir which they claimed discriminated against the region in every way possible.
While a new delimitation has been also announced today, and is expected to even out the seats between Jammu and Kashmir, most of the increase in seats in Jammu will be from the Muslim dominated parts of the region, which will not be something that the Jammu Hindu will take very well. Meanwhile, Kashmir will be burning with rage. Not only has the state been further divided, the removal of the special status and the nominal autonomy which the Kashmiri wore as a marker of identity and used it to distinguish himself from rest of his countrymen will cause lots of heartburn and angst. The UT status along with delimitation will be perceived as an assault on Kashmir, an attempt to submerge the Kashmiri identity, wipe out Kashmiri culture, and most of all, swamp Kashmir with settlers from other states to reduce them into a minority.
Clearly, these fears are the manifestation of a phobia which has been instilled in the Kashmiri population over the decades. The simple fact of the matter is that Kashmiri identity, culture and majority will remain in place. India is no China that will forcibly relocate millions of people from other parts of India to swamp Kashmir and reduce the indigenous population into a minority. Anyone who goes to buy and settle in Kashmir will do so voluntarily. Let us face it. Kashmir is no growth centre that has jobs for migrants like other growth centres in India — Mumbai, Kolkata, Pune, Bangalore, Chennai, Jaipur, etc. A migrant always evaluates economic opportunities before migrating and settling in a new place. And the reality is that given the security situation, the unsettled nature of polity (even more after today) and the lack of good investment opportunities, it is highly unlikely that there will be any huge influx in Kashmir.
At best a few thousand people might go to Kashmir to either buy a summer home, or invest in some business, a shop here, a mall there, a hotel somewhere, all of which will give some fillip to the local economy without changing either the demography of the area or impacting its culture. Even in the cities which have been magnets for migrants, the influx of outsiders hasn’t changed the culture, only enriched it. Every region of India, including Kashmir, has a very vibrant and dynamic culture and identity which cannot be submerged by any another culture.
Politically, the Valley will feel disempowered because the political dynamics will be very different from the past, not just because of delimitation but also because of UT status. The privilege that the Valley enjoyed over the other regions is over. In the UT of J&K, the K will not dominate J like it did till yesterday. There will be a balance of power between the two regions and that should make for a more balanced devolution of resources and greater equality of opportunity.
The big question is what will be the impact and fallout of this tectonic shift that has happened today. Clearly, there is an apprehension that there could be large scale protests and disturbances, which is precisely the reason for the extraordinary measures that were taken over the last few days. But for now, chances are that the lid will be kept to prevent the protests boiling over. The security presence will ensure that. The hope will be that once the initial shock is over, people will realise that the heavens haven’t fallen. If this is the way things play out then within a few days or weeks, the outrage will lose fizz and things will settle down. But there is also the possibility that the longer the lid is kept on the protests and demonstrations, the greater the pressure that will keep building. Because the enhanced security presence and extraordinary measures cannot be kept in place indefinitely, they will have to be removed sometime in not too distant a future. The danger is that the pent up emotions and feelings would erupt at that time and we might see prolonged disturbances and violence, at least in the Valley.
But with the Centre having done the deed, there is now no stepping back. India and Kashmir have entered a brave new world and backtracking is not an option. In Kashmir, what will happen will happen. In the Centre, there will be the usual hullaballoo but when push comes to shove on voting for the bifurcation of the state, everyone will fall in line. There is a good chance that the notification will be challenged in court. But it is unlikely if the courts will rule against this step not just because it has been taken under the provisions of the Article 370 which allows for Constitutional Orders, but also because if this order is not legally valid, then how is Article 35A legally valid. In any case, Courts tend to be very conservative when it comes to dealing with political issues with far-reaching consequences.
Finally, there is the external dimension. The constitutional and legal changes made today do not alter the status of Jammu and Kashmir which India considers an inalienable part. Notwithstanding the UN Resolutions, which are in any case recommendatory and not mandatory, and which have become redundant with the passage of time, India is well within its rights to make whatever constitutional and legal changes it deems fit, just as Pakistan has done in the case of the Mirpur-Muzaffarabad belt of Pakistan-occupied Kashmir, as well as the Gilgit Baltistan belt of PoK. Pakistan can scream and shout, probably ratchet up the violence through its terrorist proxies, but it cannot change the status of the state. Most of all, the changes made today send a very strong signal to rest of the world that J&K is non-negotiable and constitutes a core interest on which there will be no compromise. India’s red line has been reiterated and reaffirmed.