Article 370 & Kashmir

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Article 370

Saad Rasool |

On 5th of August, 2019, the 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 this move, Indian presence in Kashmir is 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 a region that might fulfil ancient prophecies contained in all Abrahamic religions.

But before deliberating on the prophetic nature of the impending conflict, it is important to first assess the precise constitutional paradigm at play.

The illegal annexation of Kashmir, into India’s Union territory, has been done through a Presidential Order (CC.O. 272), which abrogates the Constitution of Jammu and Kashmir, and (in essence) repeals Article 370 and 35A of the Constitution of India.

So, what is Article 370 and why does it matter so much? Article 370 of the Indian Constitution is the provision that endows special autonomous status to the region of Jammu and Kashmir, and forms 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 and 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 permits Kashmir’s domestic legislature to define permanent residents of the region, specify the articles of the Indian Constitution that shall apply to Kashmir, and allows Kashmir to make its own laws in all matters except finance, defence, foreign affairs and communications. Article 35A, referred to as Permanent Residents Law, also forbids outsiders from buying land or permanently settling in the region, and bars female residents of Jammu and Kashmir from property rights in the event that they marry 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, and also denied property rights in the region to those who were outsiders.

In essence, this constitutional arrangement ensured that India’s constitutional control over Kashmir was only to the extent, and in such mattes, 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, in 2018, ruled 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 has not been adhered to by the Modi government. In June of 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 stipulates 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 purposes, however, “recommendation of the Legislative Assembly of the State” is “necessary before the President issues such a notification.” In the instant case, since the Legislative Assembly of Jammu and Kashmir is not functional, the President merely consulted his own appointee, the Governor of Jammu and Kashmir. As such, the consultation was neither meaningful, nor was such consultation a representation of the voice of Kashmiri people. India’s President consulted with himself (i.e. with a Union appointed Governor), and deemed it to be sufficient for the purposes of “recommendation” of the Kashmiri people (under Article 370(3).

In essence, Modi’s Hindutva government took the democratic rights away of at least 13 million Kashmiris, thereby making a complete mockery of the façade that was secular democratic India. Furthermore, Modi’s government has split the area into smaller regions, including a Buddhist-majority Ladakh region, which has a considerable population of Shia Muslims.

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. At present, the Indian government has cut off all telecommunications to the region of Jammu and Kashmir and driven out tourists and journalists. Importantly, according to India’s jingoistic media, this is at least the 51st time that Modi has imposed a communication blackout across Jammu and Kashmir, 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. Now that fundamental premise has been abrogated. In the circumstances, will the inert conscience of the international community be jolted into some action? Or will the world 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, the announced downgrade of diplomatic ties is probably just the first step in the long struggle that must ensue. Our interests in Kashmir are three-fold: 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, Karbala has taught us that, in such circumstances, a fight till ‘the last drop of blood’, is not only necessary, but also honorable.

Over the past few days, many within Pakistan have drawn inspiration from the Prophetic traditions of “Ghazwa-e-Hind” and the predictions of Hazrat Naimatullah Shah Wali of the 14th century. I too, am guilty as charged. Eerily, these predictions bear uncanny similarities with current situation. Naimatullah Shah Wali, for example, claims that (post-independence) there will be four wars between the Muslim and Hindu nations in this region. And that the fourth will be the decisive battle, in which the Muslims will prevail over the Hindus, owing to help from Turkey (Osmania), China, and Iran – a prediction that corroborate with a similar Hindu tradition, narrated by priests to Gandhi himself. Naimatullah claims that the conflict will start before Eid-ul-Azha, and escalate after the days of Hajj. In line with Prophetic tradition, Naimatullah also claims that the final war in this region will usher in the end of times.

Maybe we are living through the prophecies that find mention in most major religions across the old. Maybe not. Only time will tell. But, in the words of Hamlet, one thing is for sure: “There is special providence in the fall of a sparrow. If it be now, ‘tis not to come; if it be not to come, it will be now; if it be not now, yet it will come—the readiness is all. Since no man, of aught he leaves, knows what is’t to leave betimes, let be.”

Saad Rasool 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: @Ch_SaadRasool. The article originally appeared at The Nation and has been republished with author’s permission.