Dr Zafar Nawaz Jaspal
THE rogue Hindutva raj unlawfully revoked Article 370 from the Constitution of India, which granted special and autonomous status to the Indian-occupied Kashmir (IoK). Admittedly, such an extreme move from a fanatical Prime Minister Narendra Modi and his cohorts were expected, but this kind of unconstitutional attempt from a democratically elected government was not predictable. It is not only a breach of India’s Constitution; it is also a violation of United Nations Security Council Resolutions, which declared Kashmir as a disputed territory. Ironically, the international community response is missing on the recent gruesome developments in the IoK. The Article 370 gave Kashmiris in IoK their Constitution and decision-making rights for all matters except for defence, communications and foreign affairs. The Article “limits Parliament’s powers to make laws to those matters in the Union and Concurrent Lists, in consultation with the state government, as declared by the President, which should correspond with matters specified under the Instrument of Accession.” Articles 370 and 35-A kept intact the demographic structure and the Muslim majority in the state. Article 35-A forbids Indians from outside the state from permanently settling, buying land, holding local government jobs, or winning education scholarships in IoK.
President of India Ram Nath Kovind signed an order to repeal the Article 370 of the Constitution on 05 August 2019. Subsequently, Indian Home Minister Amit Shah introduced a presidential decree and a bill in Parliament. The Bill divided IoK into two Union Territories namely; the Union Territory of Jammu & Kashmir and the Union Territory of Ladakh. The former will have a legislature, and the latter will be without a parliament. Mr. Shah said, “Kashmir is an integral part of India, there is no doubt over it. When I talk about Jammu and Kashmir, Pakistan occupied Kashmir and Aksai Chin are included in it and can die for it.” The fascist Modi government’s abrogation of Article 370 has the destabilizing repercussions. The first casualty of the abrogation of article 370 is India’s Constitution. The Amendment in the Constitution is only made through a proper procedure laid down within the Constitution. Importantly, the Amendment in the Constitution through a presidential ordinance is unprecedented. Through this illegal act, the Bharatiya Janata Party (BJP) and its allies in Parliament violate the text of the Constitution in letter and spirit. Article 370(3) of the Indian Constitution permits President of India to revoke it by presidential order. However, such an order must be on the advice of Constituent Assembly of Jammu and Kashmir. Since the Constituent Assembly was dissolved in 1957 and replaced by the Legislative Assembly of Jammu and Kashmir, experts believe that the dissolution advice should come from the latter, which was ended in 2018 after the BJP-PDP alliance fell through.
Second, they also dishonored the orders of the apex court of India. On April 3, 2018, the Supreme Court of India stated that Article 370 had acquired ‘permanent status’ through years of existence, making its abrogation impossible. ‘The observation came from a bench of Justices Adarsh K Goel and R F Nariman on a petition by Kumari Vijayalakshmi Jha, who sought a declaration that Article 370 was a temporary provision that lapsed with the dissolution of the J&K Constituent Assembly on January 26, 1957.’ (The Times of India, April 4, 2018). It would kick off a legal battle in India’s Supreme Court and intensify violence in the IoK. Importantly, the matter is already subjudice since July 2019 and therefore prohibited from any action by any other institution. Third, it would be having severe political repercussions within the Indian polity. It not only alienates the Muslims from the state of India but also alarms the other minorities residing in India. Admittedly, the BJP has been advocating the repeal of Articles 370 and 35-A of the Constitution as part of its election manifesto. According to the BJP, this will pave the way for the full integration of Jammu and Kashmir in India and also the removal of the state subject rule, allowing non-Kashmiris to move to Kashmir and gain residence and voting rights. Thus, the abrogation of the Articles had not only ended the special status of IoK, but it gradually transforms the demographic structure of the Muslim majority state in India. The Indian opposition Congress, a major political party in Parliament, described the decision as a “catastrophic step” because Article 370 had been considered a cornerstone of Kashmir’s inclusion in India. Ghulam Nabi Azad, a leader of Congress, said, “BJP has not only murdered the Constitution but also murdered democracy.”
Fourth, the Hindutva Rogue Raj distanced the pro-Delhi Kashmiri leaders from mainstream politics. They are now lamenting on their alliance with Delhi. Former Kashmir Chief Minister Mehbooba Mufti tweeted that “Today marks the darkest day in Indian democracy. The decision of Jammu and Kashmir leadership to reject two-nation theory in 1947 and align with India has backfired. Unilateral decision of Government of India to scrap Article 370 is illegal and unconstitutional, which will make India an occupational force in J&K.” Suhrith Parthasarathy, an expert on the constitutional law, opined, “Article 370 is the tunnel through which the Indian Constitution is carried into the state. To make it inoperable, you have to take the people of the state into confidence. What the present order does is to effectively abrogate Article 370 through executive whim.” To conclude, Hindutva forces are struggling to conquer the territory of Jammu and Kashmiri with 800000 troops, unconstitutional Presidential Order and dishonouring the decisions of the Supreme Court of India. Indeed, it would be having lasting repercussions for the Indian polity.
— The writer is Professor, School of Politics and International Relations and author of India’s Surgical Strike Stratagem: Brinkmanship and Response.