WITHOUT an iota of doubt, India’s Kashmir is in total lockdown. The special status of Jammu and Kashmir has been ‘scrapped’ as though it were a mere fiddle, and not the only semblance of legal fiction, that has continued to tie India to Kashmir.
In all fairness to the Bharatiya Janata Party, this had always been on its agenda. In a brazen reference, writing in the Illustrated Weekly of India, in June 1993, the then BJP vice-president and spokesperson KR Malkani outlined his party’s solution to the Kashmir problem. Article 370 was deemed ‘temporary and transitional, and, therefore, must go’.
However, it can be lifted only when there is a two-thirds majority for it in the parliament. That is going to take some time. And the BJP would avail of this time to convince everybody and, particularly, the Kashmiris that Article 370 is not good for anybody. It has only acted as a cover for corruption and irresponsibility. Once it is gone, Kashmir will have the same rights and responsibilities as the Punjab and Bengal. And, so the justification has been allowed to roll.
And after 26 years, the BJP enjoys the majority in the parliament to push through its solution to the Kashmir problem. Unfortunately, it has convinced no one in Kashmir, not even its erstwhile coalition partner, the People’s Democratic Party, whose leader Mehbooba Mufti is under house arrest. In fact, the BJP is so convinced about the lack of support for its move that it has brought in even more troops to keep ‘law and order’ and used the ‘inspired’ device of shutting down the internet and all phone connectivity.
So monumental is the folly of the BJP that even the discredited Mufti has summoned the courage to call a spade a spade. Speaking to the BBC, she noted that this was to ‘occupy our land’ and ‘reduce us to a minority and disempower us totally.’ The Kashmiris who experience daily humiliation at the hands of an extraordinary military deployment would point out that this too has been true for the past 30 years.
Their land, schools and colleges have all been taken over by the military, their bodies have been searched, concertina wires have taken over their pavement, and bunkers overrun their famed gardens. The Kashmiris who come to India to study in schools and colleges will also point to the instances they have been harassed, picked up by the police, accused of terrorism and detained for close to two decades on trumped-up charges. The concept of India, as a site of diversity and respect for all religions, died three decades ago in Kashmir.
The silence of the lambs, the liberals on the situation in Kashmir, who otherwise routinely extol India’s democracy, has been deafening. If you may speak to Kashmiris on this issue, they will tell you that they understand too well the meaning of all that.
In The Retreat of Western Liberalism, Edward Luce had optimistically prophesied: Though Narendra Modi… harbours Bonapartist traits, it is hard to imagine he would try to close down the system. It is still harder to see how he would succeed. So ingrained is India’s culture of noisy dissent and sheer pluralism that I would rate democracy as now safer in India than in parts of the west. And then, he has added, the biggest thing India has is moving in the direction for it is growth.
What has happened now is that the growth has diminished and Modi’s well-known Bonapartist tendencies, helped by the BJP’s long-time agenda, have come to the fore. The ‘scrapping’ of Article 370 without even the fig leaf of a debate is Indian democracy’s most severe test.
In the conclusion to his 1993 piece, Malkani suggested that as and when the Kashmir Valley is set up as a state, the language ‘Kashmiri must be introduced as the medium of instruction and administration… (to) strengthen and revive Kashmiriyat and checkmate the appeal and influence of Pakistan’. The BJP as of today has no interest in reviving any such idea of ‘Kashmir’; it only seeks to impose its idea of a Hindu rashtra (state) on what it imagines is a crushed and hopeless people.
Will August 5 be a historic day that has marked the point of no return for Kashmiris’ divorce from India or will it be the day that India’s hollowed-out liberal opposition finally found its voice? Where is the evidence for India’s noisy dissent and pluralism?
The next big question for all Indian Muslims and other minorities remains: will Modi government move on Kashmir’s Article 370 stand the scrutiny of Supreme Court?
Before we debate on whether the Modi government’s move to scrap Article 370 will stand the scrutiny of the Supreme Court, it is important to understand the context of changes, the government has already brought about.
Fundamentally, it has scrapped the 1954 presidential order on Article 35A and replaced it with a new one, thereby abolishing the article. Second, it has bifurcated the state and created two union territories, out of which Jammu and Kashmir will have elections as and when the situation permits and Ladakh will not have elections. And third, while, on paper, Article 370 still stands, in actuality, it has been nullified. There is no paradox that exists to humiliate the nation that boasts itself as the largest democracy in the world.
Even if someone does challenge the abrogation of Article 370, it remains doubtful whether the Supreme Court will entertain such a challenge because Article 370 had always been supposed to be a temporary provision. Second, the government has abolished Article 35A in the same manner it was introduced by a presidential order.
It implies, if the abolishment is not recognised, neither will its introduction be by the same reason. And finally, the Supreme Court also knows that the scrapping of the provision is related to issues of national security and territory, and, therefore, will not intervene in the matter.
Even if the Modi government had repealed Article 370 as per procedure, it still would have been a direct attack on the constitution.
The question of whether the manner of the repeal of Article 370 will withstand scrutiny in the Supreme Court is independent of the legal and constitutional correctness of the same.
Legally and constitutionally, the ‘repeal’ of Article 370 is of questionable validity. The Modi government has attempted to amend the constitution without following the procedure laid out in Article 368. Even if it had repealed Article 370 following proper procedure, it would still have been argued that it is a direct attack on the basic structure of the constitution, specifically on federalism. Even though it has attacked only Jammu and Kashmir, the assertion of power is a direct assault on the concept of shared sovereignty between the centre and the states.
However, the Supreme Court is not expected to strike down the legal measures in this context. Because of the actions of recent and current CJIs, the Supreme Court has no credibility left to uphold the constitution in the face of the government’s actions.
It will find ways and means to justify the illegalities committed by the government. One only needs to see the majority opinions of the Supreme Court in ADM Jabalpur v Shiv Kant Shukla case to realise how the court will approach any constitutional challenge to the ‘repeal’ of Article 370.
Today, Narendra Modi is certainly the most popular prime minister elected in India. His victory puts the accomplishments of Jawaharlal Nehru to ‘shame’. He may have made his mark in history, however, in his bid to do so, he has transcended legal and moral jurisdictions. Indians are highly unforgiving on issues of constitutional and moral misdemeanour.
Tomorrow, history may also scrap the greatness of Modi’s leadership, in a similar fashion, as he had done so, by way of scrapping Article 370 of the Indian constitution.
Nazarul Islam is a former educator based in Chicago.
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