Kashmir: Backed into a dangerous corner

Some watched with shock and some with jubilation on 05 August 2019 as Union Home Minister Amit Shah introduced a Presidential Order in the Rajya Sabha amending Article 370 and repealing Article 35A. Not the only change for the day, the Rajya Sabha also passed a Bill reorganizing the state of Jammu and Kashmir into two Union Territories – Jammu and Kashmir, with a Legislative Assembly, and Ladakh without. But as everyone with access to internet or cable loudly shared their opinion on social media, there was one set of voices that were, and are still missing – the Kashmiri people.

On 04 August, internet, cable and telephone lines were shut down in Kashmir and S. 144 of the CrPC was imposed and contrary to what Ajit Doval would have us believe, is still very much in force nearly a week later. Mainstream political leaders including Mehbooba Mufti, Omar Abdullah and Sajad Lone are still under house arrest. Mufti is currently being held at the Hari Niwas Palace in Srinagar. Invariably, this arbitrary shut down has led to a great deal of anger – from among the protestors in Jantar Mantar as much as from the Valley where dissent and protest are not an option. Prime Minister Modi delivered an address to the nation on Thursday at 8pm that some have called ‘heartwarming.’[1]However, as of 8:30pm Reuters reported that Kashmir’s communication blackout remained. For many, including Kashmiri leaders, it is as though their worst fears have come true.

In his speechon Thursday, Prime Minister Modi did not directly address any of these questions. Instead, he sought to send a message of inclusiveness, appealing to all sectors of the population; from government workers, police officers, armed forces, farmers, women and the Kashmiri youth to work together to build a brighter future for themselves. Calling Articles 370 and 35A a thing of the past, the Prime Minister stated that their application brought nothing to the Valley except corruption, nepotism, terrorism and separatism. He sought to remind the nation that Kashmir’s status as a Union Territory was only temporary and had been declared as such after a great deal of thought. He stated that in the past few months, since the region had been under central government rule, development has been at the forefront. With promises of sweeping economic development, he implied that Union Territory status would remain until the ever vague, development and peace could be achieved. Appealing to the population of Kashmir, the Prime Minister assured them that elections would be held and just as before, they were free to choose their elected representatives from within their population. But if Kashmir is still under a communications blackout, one wonders who he was addressing.

Admittedly, Art. 370 and 35A went further in providing Kashmir with a special status than any other state in the country. With its own flag and Constitution, the state of Jammu and Kashmir had more rights than any other – even the other states that have a special status under the Indian Constitution. It is untenable, in a democracy, to have one state that is more equal than all others. However, this does not mean that their status can unilaterally be revoked by a government sitting in New Delhi while the people of that region remain in the dark. It is no less than coercion to offer a population a choice between someone else’s idea of development or curfew.

 While Ladakh; as eloquently stated by their MP Jamyang Tsering Namgyal, has always sought Union Territory status, it is important to note that Kashmir has not. The federal structure of the Indian constitution provides states with control over subjects in the State list, while the Central government has overarching control of subjects in the Union list and Concurrent Lists. With the conversion of Jammu and Kashmir to a Union Territory without consulting its people, they have lost control over all three subjects. More worrying than their loss of agency is the fact that this move has pushed all parties into a corner.

The Supreme Court cut off one solution on Friday by rejecting an urgent hearing in a petition to address the constitutionality of the Presidential Order amending Article 370. Tehseen Poonawalla’s petition seeking the removal of curfew and review of the Presidential order was also rejected. Even if (when) the Supreme Court does accept, it will be difficult for them to find the Presidential Order unconstitutional without consequently restricting any future move to remove Article 370; something that should ordinarily be a legislative prerogative.

With most pro-India leaders under house arrest and Mehbooba Mufti having declared that remaining with India was a mistake before being detained,[2] Kashmiri leaders have lost credibility in the eyes of their people. They have lost the trust of their electorate and so will have no choice but to oppose these measures as a way to regain credibility. After all, they are the ones who insisted that India was the better option, but which ordinary person sitting under curfew, unaware of what has happened will believe them? The rest of the Valley remains in darkness with reports of sporadic clashes. Dissent is not an option today and so the anger and resentment of a stifled population builds. It is unclear when the curfew and communications blackout will be lifted but it will have to be lifted eventually – how will protestors be dealt with then? Had the government chosen to retain J&K’s status as a state, while amending Article 370 and separating Ladakh alone as a Union Territory, perhaps there would be a different story.

The nation would have retained its federal structure and the Kashmiris, their autonomy. In Thursday’s address, the Prime Minister called Articles 35A and 370 a thing of the past. In spite of the seventy years of history with Kashmir to advise him, he has still made it a zero-sum game. The government can no longer afford to allow the restoration of Article 370, or even statehood without a loss of face in the eyes of their most ardent supporters. By declaring the Union Territory status only temporary while failing to lay out a clear timeline, they have also left Kashmir with no option but to believe the worst. Without local leaders to mediate between the two sides, how will the region move forward? Perhaps a viable step forward is the swift restoration of statehood for Jammu and Kashmir, while respecting Ladakh’s desire to remain a Union Territory.

[1]Rajdeep Sardesai on Twitter.

[2]Mehbooba Mufti on Twitter.

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