Kashmir and 370: Constitutional Coup Whose Aftereffects Will Linger a Long Time

It is possible to suppress popular opinion for a while, but whether it will bring long-term peace to the state is a matter of speculation.

The Centre’s proposal to revoke Article 370 of the Constitution and demote Jammu and Kashmir’s status from a state to a Union Territory is nothing short of a Constitutional coup. It is a surprise and it is not.

This contradictory observation can be explained this way: the BJP and its predecessor organisations have never concealed the fact that they consider the need to abrogate the article as a foundational philosophy of their party. So it is not a surprise.

But it is one so, considering that it is a drastic and dramatic step which can have consequences both internal and external for India. Presumably, and indeed, hopefully, the government has thought through the consequences of this action.

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In itself, this is a deeply undemocratic action in that it has been done without the consent of the governed. It is possible to suppress popular opinion for a while using the police and the army, but whether it will bring long-term peace to the state is a matter of speculation. It is disturbing because the argument used by the government to suppress Kashmiri opinion can be used for any other part of the country.

A symbol of Kashmir’s uniqueness

By itself the proposal will not mean much. Over the decades, Kashmiri autonomy promised under Article 370 had become a myth. It had been eroded under the government of Bakshi Ghulam Mohammed and Syed Mir Qasim and did not even recover after the Beg-Parthasarthy agreement of 1975 restored Sheikh Abdullah to the mainstream. Indeed, between 1954 and 1995, the Union government had passed nearly 200 constitutional orders to take away the exclusive powers of the state under its own constitution.

Article 370 was, however hollow, a symbol of Kashmir’s uniqueness to the Indian scheme of things. It may have been neutered, but it still remained a significant symbol of Kashmiri identity. Now Amit Shah and Narendra Modi have struck it down and it cannot but have immediate psychological consequences and even a prolonged period of political unrest.

Home minister Amit Shah, with PM Narendra Modi in the background. Photo: PTI

The demotion of the status of the state is an egregious insult. Far from upholding the state as a unique one in the Indian system, one that was once run by its own prime minister, it has been reduced to the status of a half-state, run by a Lt Governor. Here again, there is the de facto reality that J&K has been more or less run by the Union government since the 1990s, but there was an important veneer of local political activity under parties like the National Conference and the People’s Democratic Party that made for stability.

By its actions, the government is force-feeding what it believes is bitter medicine to the Kashmiris, and the chances are that its impact will last generations. On the other hand, it could be the beginning of a new process which will tell Kashmiris, “Guys, grow up, the world of UN resolutions and Pakistan is long past. Kashmir has been and will remain a part of India and it would be a good idea if you get used to it.”

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The legal issues surrounding Kashmir’s accession to India are in themselves quite intricate. The constitutionality of the move itself is suspect, since Article 370 can be abrogated by the president, but under clause 3, he can only do so following the recommendation of the state’s constituent assembly, which was itself dissolved in 1956. So some mechanism is needed through which this clause can be satisfied. No doubt, the matter will figure in petitions to the Supreme Court soon.

The international community

Internationally, too, there is an issue. No country in the world recognises Kashmir to be a part of India. They all view it as a disputed area whose final status needs to be worked out through negotiations between India and Pakistan. More important, the UN resolutions of April 1948 underline this point since they argue that the final status of the state needs to be determined through a reference to its people. No one has bought India’s view that the participation of the people of the state in successive elections constitutes an expression of that view.

At the same time, international law means little to powerful states. In the words of Thucydides, “the strong do what they can and the weak suffer what they must.” Countries like the US can trash international agreements like the JCPOA with Iran; Russia can occupy Crimea; China can scoff at the UNCLOS and claim a maritime jurisdiction by force or place millions in “re-education” camps; Israel can militarily occupy another nation. So, India can insist on having its way in J&K and the international community will not get their knickers in a twist. But, let’s be clear, they will not endorse India’s undisputed title over the state, at least as of the near term.

There is no doubt that the decision will generate wholesale alienation in the Valley and will almost certainly give a fillip to separatism in the short term. The most dangerous aspect of this could be the reaction of the J&K police forces, who play a cutting-edge role in countering militancy today. If the sense of alienation extends across sections of society, we could see counter-militant activity become more difficult.

The J&K police forces, who play a cutting-edge role in countering militancy today. Credit: PTI.

Is this an opportunistic move or a planned one? At one level, it is the fulfilment of the BJP’s  long-standing demand for abrogating Article 370. At another, it takes advantage of the times where the global hegemon is itself shaking the international system and is unlikely to get involved in the region it is trying to leave. Further, the change in the American position on Jerusalem and the recognition of the annexation of the Golan Heights could well have been examples that inspired the government.

A leap in the dark

Like  many dramatic political moves, it is a leap in the dark, and probably its authors are aware of this. But in the scale of politics they are playing, their approach has been “nothing venture nothing gain”. In that scale, their ambition is to go back in time and reverse engineer India’s political and cultural trajectory. So yes, they have been responsible for disasters like demonetisation, but maybe they have taken a deliberate decision to gamble with the state with the belief that move will be hailed by the constituency that really matters to them – the majority Hindus.

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The fact that the move has been welcomed by a clutch of parties ranging from the Biju Janata Dal to the YSR Congress party, and even the Aam Aadmi Party, is an indicator of the political dividend that the BJP can reap from the action. There should be no doubt that the move will be hailed across India, since a certain amount of Kashmir fatigue already afflicts the country and the attitude is that “Things have not worked for 70 year, maybe it’s time for some drastic measures”.

But it will be some time before people realise that such “killer moves” like bank nationalisation or demonetisation, usually come with a price that is not apparent at the outset. More than that, when people are involved, change through a measure of consent is usually a better way out than the secretive process through which it has been brought about.

Manoj Joshi is a distinguished fellow, Observer Research Foundation, New Delhi.