Revoking Article 370: The Indian Government’s Constitutional Monstrosity – OpEd

August 5, 2019 will be remembered as one of the darkest days in the history of South Asia. In a condemnable move, the Modi Government has announced in the Rajya Sabha to make Article 370 of the Indian Constitution inoperative in the Jammu and Kashmir through a presidential order.1 The Indian Government proclaimed it as a “far-reaching political move” that shall “fix a historical blunder” in the restive region.2 However, global political analysts and human rights activists have warned that revoking the special status of the Jammu and Kashmir will further unleash the systemic Indian state-led terrorism against innocent Kashmiri masses.

Against this backdrop, political temperature on the Line of Control between India and Pakistan- the nuclear armed neighbors who have a history of wars over the disputed region, is already heated up. It is very likely that in the wake of the move, tensions would escalate further in next few hours. Consequently, its spillover effects may challenge stability of the entire region.

Since 1948, when India took the Kashmir issue to the UN, the state is a disputed territory between India and Pakistan. The UN Resolution of April 1948 asked for a free and fair plebiscite to establish locals’ legitimate right to self-determination. Thus, acknowledged that only local populace has a right to decide its fate and future as per its free will. However, just to ‘add’ into the ‘existing knowledge’ of international community and proponents of human rights that till date, Kashmiris are waiting for the recommended plebiscite.

For last 72 years, the region has been subject to brutal and oppressive Indian state apparatus. Almost three generations have passed which have suffered throughout their lifespan at the hands of repressive Indian Governments determined to curtail former’s free will. The fourth generation is also in the same boat. Nevertheless, be it pallet gun firings or recent cluster bomb attacks, no brutal, coldhearted and inhumane Indian measure could have undone Kashmiris’ legitimate struggle and will for freedom and political rights.

The recent surge in grave human rights violation in the state of Jammu and Kashmir has been witnessed during last few days. The unusual tensions began to mount last week when deployment of almost 10,000 additional troops was ordered and the Indian Government issued threat alerts aka warning orders to thousands of tourists and pilgrims to evacuate the region.

Reportedly, in a recent move of state-led terrorism, the Modi Government has launched a massive crackdown against all dissenting political voices. Entire lot of local political leadership is either detained or under house arrest. All modern means of communications, mainly, phone and internet services are down. Public gatherings have been banned and educational institutions are closed. In short, curfew restrictions have been imposed upon the region. This sheer breach of civil and political liberties is going on in a ‘self-proclaimed’ World’s largest democracy.

Against this backdrop, three days ago, the detained Kashmiri leadership made an SOS call to the global community. For, such oppressive measures were rightly perceived as a prelude to New Delhi’s move to scrap off Kashmir’s unique constitutional status provided by the Article 370. Agreed in 1952 between Nehru and Sheikh Abdullah, the article laid down special citizenship rights for Kashmiris. It debars non-residents to purchase any property/land in the territory. Thus, fundamentally outweighs the possibility of any demographic shift unfavorable to the rights of local populace. Moreover, it also allowed the State of Jammu and Kashmir to have its own constitution. further, its provision rightly abided the Indian Parliament to seek concurrence from the state’s legislature before implementing any new law to the region, save for defense, foreign affairs, communications, and ancillary matters.3

Although it was speculated that the Modi regime would to try to implement its sinister designs in Kashmir as avowed during the recent Indian Lok Sabha elections campaign, many dismissed the possibility on following grounds. Firstly, scrapping off the article would have required a constitutional amendment which was slightly difficult to achieve. Secondly, the Indian Apex Court maintained previously that over the years, the article has acquired a permanent status in the constitution. 4

Ironically, the government by passed the amendment option and invoked section 3 of the same Article (370) to render it inoperative.5 Moreover, Home Minister Amit Shah has also tabled “the Jammu & Kashmir Reorganization Bill 2019” which created intense mayhem in the parliament. The, bill has proposed division of Jammu and Kashmir into two union territories i.e. Jammu and Kashmir division and Ladakh. Former will have a legislature, whereas, the latter has been denied even that right too. The bill not only is sheer violation of fundamental human rights but also a glaring example of the Indian Center’s unconstitutional meddling in the affairs of disputed region.

Pakistan, a party to the dispute since the beginning, has not only condemned India’s illegal and unconstitutional move but also threatened to “exercise all possible options” to counter it. Exchange of fiery statements, frequent firing on the Line of control and countless border skirmishes between both states are a routine matter these days, specially, since the second term of jingoist Modi Government has begun.

Albeit the move cannot be analyzed devoid of the broader political context which is developing across the globe. As it is an extension of once scorned right-wing hardliners’ political narrative (in India’s case the RSS), which has been mainstreamed currently through expanding state tentacles, almost, across the globe. Curtailment of subaltern narratives/discourses in academia and politics ‘legally’ is but one of its common power projection tools. The phenomenon is more evident in post-colonial states like India and Pakistan, where the entire state apparatus and machinery was historically designed to ‘outlaw all dissenting voices’ as ‘traitors’, that too ‘constitutionally’. Reportedly, there are fair chances that the move would be challenged in the Indian Apex Court. However, ironically, the manner in which the Modi regime forwarded the move per se has questioned the ‘legitimacy of rule of law’ which merely defends interests of top echelons of power and further subjugates the wretched of the Earth.

In the Kashmir’s case, it has happened at time when the World still echoes from the President Trump’s offer of mediation between India and Pakistan over the Kashmir dispute. Trump’s offer was hailed in Pakistan and allegedly the former proclaimed that the same was demanded by the Indian Premier during his visit to the US. Accepting it on its face value and believing that the offer was made in good faith, Kashmiri’s demand that this is the right time for the US’ arbitration.

The Government of Pakistan should channelize all possible diplomatic measures short of war to increase pressure upon the Indian Government to undo its ‘constitutional’ monstrosity. Moreover, the United Nations Security Council should also take notice of such utter violations of human rights by the Indian State. It is about time that international community must acknowledge the graveness of the issue and do some tangible steps to ensure Kashmiris’ right to self-determination as per the UN resolutions.
The Kashmir is burning and humanity is lamenting. How long would the international community take further to respond to the SOS call of bleeding Kashmir?

Notes:

1. Debayan Roy Apoorva Mandhani, “Explained: This Is What Modi Govt Has Done to Scrap Article 370, 35A in Jammu & Kashmir,” Print, August 5, 2019, https://theprint.in/india/governance/explained-this-is-what-modi-govt-has-done-to-scrap-article-370-35a-in-jammu-kashmir/272369/.

2. “LIVE: RS Passes Jammu and Kashmir Reorganisation Bill , Ex-CMs Arrested,” Business Standard, 2019, https://www.business-standard.com/article/current-affairs/jammu-kashmir-issue-live-updates-section-144-crpc-kashmir-news-today-modi-govt-meet-omar-abdullah-mufti-house-arrest-article-35a-119080500081_1.html.

3. Apoorva Mandhani, “Explained: This Is What Modi Govt Has Done to Scrap Article 370, 35A in Jammu & Kashmir.”

4. Aashish Aryan, “Judgment Day: Next Fight over Article 370 Could Move to Supreme,” Business Standard, August 5, 2019, https://www.business-standard.com/article/current-affairs/over-to-the-law-next-fight-over-article-370-could-move-to-supreme-court-119080501722_1.html.

5. Parbhash K Dutta, “Kashmir: How Govt Used Article 370 to Kill Article 370,” India Today, August 5, 2019, https://www.indiatoday.in/india/story/kashmir-article-370-ladakh-jammu-1577321-2019-08-05.