THE NEW NORMAL
THE MODI GOVERNMENT ‘DILUTES’ ARTICLE 370 TO STRIP KASHMIR OF ITS SPECIAL STATUS AND BIFURCATES J&K INTO TWO UNION TERRITORIES. WILL IT MAKE OR BREAK THE TROUBLED REGION?
With Article 370 now gone, what does the future hold for Jammu and Kashmir?
On the morning of August 5, locals in Jammu and Kashmir woke up to a communications blackout and a curfew. While they were asleep, signal bars on mobile phones vanished and the internet was turned off. In a first in recent years, landlines too were severed. India’s northernmost state, it seemed, had travelled back in time. Thousands of paramilitary personnel, most of whom had been flown in on giant IAF C-17 heavylift aircraft in several waves over the past few days, fanned out into the streets to enforce the curfew. Ten days before the 72nd anniversary of India’s midnight ‘Tryst with Destiny’, the stage was being set for another tectonic shift: the ‘dilution’ of Article 370 of the Indian Constitution and the bifurcation of J&K to create two Union territories—Jammu & Kashmir and Ladakh. The passage of the J&K Reorganisation Bill by Parliament on August 6 means India now has 28 states and nine Union territories. It is the first time a state in the country has been turned into a Union territory.
Article 370 was a ‘temporary provision’ included in the Constitution on October 17, 1949. It exempted J&K from the Indian Constitution and permitted the state to draft its own constitution. Its dilution has done away with all of the
erstwhile state’s special powers, including that of the state legislature to draft its own laws on all subjects other than communications, defence and foreign affairs. Gone also are J&K’s own constitution, flag and penal code.
The air had been thick with speculation over the preceding days. On August 4, the Amarnath Yatra was abruptly called off and pilgrims and tourists told to leave the Valley. The trigger was said to be the discovery of a terrorist plot to attack the pilgrimage. Journalists were shown a US-made sniper rifle, an IED and hand grenades as evidence of malevolent intent. Firing resumed along the Line of Control (LoC) with Pakistan, with the Indian Army using 155 mm Bofors howitzers—among the rare instances of the use of this heavy calibre along the LoC since the 1999 Kargil war. There was also an encounter, with the army claiming that five men of the Pakistan Border Action Team, or BAT, had been shot dead in the Keran sector. They wanted Pakistan to take the bodies back.
WhatsApp forwards filled the information vacuum—from messages suggesting the possibility of a massive anti-terror operation to one coming close enough by predicting that a trifurcation of the state was on the cards. The government issued ultimatums to tourists to leave Kashmir and policemen visited hotels to ensure they complied. Recalcitrant guests were asked to report to Srinagar airport and some were flown out in IAF transport.
On July 22, US president Donald Trump had stunned New Delhi by claiming Prime Minister Narendra Modi had asked him to mediate in Kashmir. The statement, made in the presence of visiting Pakistan PM Imran Khan, was immediately denied by India’s ministry of external affairs (MEA). The US, New Delhi suspects, was playing the Kashmir card in lieu of Pakistani assistance in getting its troops out of Afghanistan before the US elections in November 2020. There was thus a certain urgency within the government to push the dilution through.
In the Rajya Sabha, the BJP might have been eight seats short of a majority, but the House passed the J&K Reorganisation Bill with a two-thirds majority. The BJP even had the support of hostile political parties such as the AAP, TDP and BSP. Ally JD(U) opposed the bill, but by staging a walkout, it indirectly helped the BJP.
When the decision to scrap J&K’s special status hit the Valley, it was greeted with befuddlement and public anger over the abruptness of the move. Most people, however, were simply confused. “We just have to accept whatever has happened. Time will tell what impact this will have on the people of Kashmir,” Rais Ahmed, a businessman in Srinagar, said.
Within hours of Union home minister Amit Shah’s August 5 speech in Parliament, former chief ministers Mehbooba Mufti and Omar Abdullah, who were under house arrest from the night before, were taken into custody. Muzaffar Ahmad, who runs a shawl business, says the move has brought an end to the
politics of Kashmiri leaders. “People are confused right now. There is apprehension; nobody is sure what lies ahead,” he says. The BJP, meanwhile, was in raptures. ‘Ab desh mein ek vidhaan, ek samvidhaan aur ek nishaan (One legislation, one constitution and one flag in the country now)’ ran the slogan in its party offices.
MISSION KASHMIR
Soon after the Rajya Sabha passed the J&K Reorganisation Bill, PM Modi walked up to his home minister. Shah bowed reverentially and touched his forehead to the PM’s hand. The PM patted him twice on the back. It was public acknowledgement that Shah was the author of this historic move.
When it came to J&K, Shah was a man with a plan. “The only solution to the J&K problem,’’ he had told india today in 2017, “is removal of [Article] 370. It will be one bitter dose, but it will solve multiple problems in one stroke.” The BJP, he had then predicted, had the will to do it “in future”, conscious that the party was running a coalition government in J&K with the Peoples Democratic Party (PDP), which op
posed any such move.
The BJP’s 2015 pact with the PDP to form a government was a halfway house. Shah had already begun studying what he saw as the problems faced by both Kashmiris and non-Kashmiris due to the controversial Article 370. Its abolition is one of the three cornerstones of the RSS’s core political ideology. The other two are a uniform civil code in the country and the construction of a Ram temple in Ayodhya. The BJP has made a beginning on all three issues in the first two months of its second consecutive term at the Centre. Shah, who took over as home minister on May 31, immediately set down to work on Article 370. For him, it was the only way to solve J&K’s problems, be it terrorism or the state’s perceived backwardness. It reportedly took all of Shah’s persuasive abilities to bring on board the two most influential persons in the government—PM Modi and defence minister Rajnath Singh.
Shah felt the government had to strike while the iron was still hot; the euphoria over the BJP’s 303-seat victory in the Lok Sabha election was yet to subside. Approval for the proposal rested on the home minister’s confidence and his assurance to the PM that the consequences of the move could be handled. National Security Advisor (NSA) Ajit Doval and law and justice minister Ravi Shankar Prasad were consulted next. Shah wanted to know how the government could go about it. B.V.R. Subramanyam, an IAS officer of the Chhat
tisgarh cadre, was another key person in the loop. He was posted as J&K chief secretary in June to conduct a ground assessment and send feedback about the probable implications.
The countdown to the dilution of Article 370 began the day the government began putting separatist leaders under house arrest. However, the house arrests of Hurriyat leader Mirwaiz Umar Farooq and others on June 22 were described as pre-emptive action ahead of the third anniversary of the killing of militant Burhan Wani.
Sources close to the establishment say this was the start of the government’s ‘Mission Kashmir’.
Given the Modi government’s inscrutable ways, no one knew for sure what was going on. There were some hints, though. On July 20, a senior Intelligence Bureau (IB) official told an event organiser to drop a proposed seminar on Kashmir’s problems because “something was to happen within a fortnight”.
By late July, around the time the government finalised its plan, the number of those in the know had grown to nearly two dozen. In the loop were the Union home secretary, chiefs of the Research and Analysis Wing (R&AW) and IB, chiefs of the three defence services, external affairs minister S. Jaishankar, the principal secretary to the PM, the cabinet secretary, the President of India as well as officials associated with the drafting of the bill and the resolution to be passed in Parliament.
Shah’s planning was meticulous. As D-day drew closer, the Amarnath Yatra was truncated and pilgrims sent back on what now appears to be a ruse. The army said it had unearthed a crossborder conspiracy to target the pilgrims. Shelling along the LoC was stepped up. Sources said keeping the LoC hot meant multiple things. One of them was to warn Pakistan against any misadventure. Another was to confuse the terrorists on Indian territory as well as the Pakistanis of India’s intent. It was unlikely India would simultaneously embark on attacking the LoC and take tough action in the Valley.
Doval played a pivotal role in what was to happen next. Over 45,000 paramilitary troopers were reportedly flown into the Valley (the actual number is thought to be much higher). They joined the nearly 300,000 army personnel already posted there to guard the borders with Pakistan and for counter-terrorism operations. Advisories issued to 12 states to keep an eye on communally sensitive areas were now extended to all states. Communal hotspots in the Kashmir Valley were put under drone surveillance.
Jaishankar briefed the envoys of several nations on the proposed move in J&K, to convince them of the soundness of the Indian position. A senior government official involved in the strategy says the foreign policy outreach was necessary. “The history of the past 70 years shows that western nations and Islamic countries have often taken a pro-Pakistan stand on J&K,” the official said. The world was largely acquiescent and the UAE, a prominent Organisation of Islamic Cooperation (OIC) member, called the move ‘an internal matter’ of India. While Pakistan’s shrill response found no global echo, the UN on August 6 urged both countries to exercise restraint. Pakistan PM Imran Khan warned of more Pulwama-like suicide attacks and an India-Pakistan war—a statement possibly aimed at his domestic audience. On August 7, Pakistan announced it was suspending bilateral trade with India and recalled its acting high commissioner from New Delhi.
The Modi-Shah-Doval trio planned for the government to send out pro-Kashmiri signals after the dilution of Article 370. BJP and RSS leaders were told to be restrained in their celebrations. The party line adopted was to explain how Article 370 had stifled Kashmir’s development, kept people backward and only made certain political families prosperous. It’s worth noting here that while economic growth in the state has been fitful and per capita income below the national average, the poverty rate in J&K was
The next step is likely to be delimitation of the J&K legislative assembly, where the seats are heavily skewed in favour of the Valley
half the national average and the state’s human development index was above the national average.
During his 2017 visit to Jammu, Shah had invoked the death of Bharatiya Jana Sangh (former avatar of the BJP) founder Syama Prasad Mookerjee to justify the repeal of Article 370. Mookerjee was arrested by the J&K police in May 1953 while protesting against the state’s special status. His death in police custody a month later still rankles with BJP leaders.
ROCKY ROAD AHEAD
Shah’s next step is delimitation of the J&K legislative assembly, where the number of seats is heavily skewed in favour of the Valley despite the region being smaller than Jammu in size and population. The move, says a government official, is to end the current practice of the single largest party, usually from the Valley, choosing a CM candidate. It will shift the focus towards the Hindudominated Jammu region.
The Valley has been numbed by the move and the presence of security forces in such huge numbers. But is this the lull before the storm? Security forces on the ground in Kashmir fear a volcano is waiting to erupt. “I won’t be surprised if militancy gets a push in these circumstances,” says a young J&K police constable on condition of anonymity. “The people are feeling cheated. The youth are vulnerable and can explode anytime.” He points to how militancy flared up in 2016 following the killing of Wani. Between 2016 and 2019, security forces killed 1,747 militants and arrested over 6,000. Worryingly, over 80 per cent of the existing militants in the Valley now are local youth.
“The dilution of Article 370 will be a huge rallying point for the youth, who sense this as a loss of identity,” says a former IB official who did not want to be named. The situation will become clearer when prohibitory orders are lifted around Eid next week. There are already reports that five hardened JaisheMohammed terrorists infiltrated the Valley a fortnight ago.
While the BJP has premised its dilution of Article 370 on opening up the state to settlers from outside and attracting investments, there is little evidence that either of these might happen soon. As of now, all hill states maintain restrictions on land ownership by outsiders, so abolishing these protections in J&K alone could open a Pandora’s box. While businesses have so far been citing the bar on purchase of land by outsiders and the security threat as major deterrents, former J&K finance minister Haseeb Drabu argues that the problem has not been the contentious Articles 370 and 35A but Kashmir’s ‘disputed’ tag by the UN. Drabu also points to
the near-absence of central public sector enterprises (CPSEs) in the state. “The rank correlation between CPSE investment and level of development of J&K is 0.87. Private investments have piggybacked on public investment. Of the 339
CPSEs in India, with investments worth Rs
23 lakh crore and 1.08 million employees, only three are in J&K,” he says. The three CPSEs in the state together have an investment of Rs 165 crore and employ just 21 people, he adds.
While a slew of business leaders tweeted their support for the Centre’s move, they are likely to hold back big-ticket investments until there is a definite sense of political stability in Kashmir. While the applicability of the Right to Information (RTI) and reservations is no incentive for businesses, the fact that Supreme Court rulings will now be applicable to Kashmir could be a source of comfort in terms of enforcement of contracts. There is talk of holding a business summit in October. However, empirical evidence suggests very little correlation between what’s announced and what finally gets implemented on the ground—so the summit is likely to have little bearing on grassroots economics.
What will make a fundamental difference is the Union government coming out with a big-ticket economic package. The last time the central government announced a big package for Kashmir was under PM A.B. Vajpayee, giving the Valley’s economy a fillip. It is crucial for the Modi government to announce major projects for the region, such as an IIT, IIM and a power plant, as they can enthuse the private sector.
And despite the suspension of Article 370, security officials feel it will be extremely difficult to resettle Kashmiri Pandit refugees immediately in the Valley, given the hostility and terrorists on the loose. They will, at best, be able to live in fenced ghettoes.
Beyond these technical changes, what may alter J&K’s politics is the government’s decision to set up a commission to undertake the delimitation exercise in J&K. Delimitation is the process of fixing limits or boundaries of constituencies based on changes in demography. In 2002, the J&K assembly passed a law putting a freeze on fresh delimitation of seats till 2026. Many believe the delimitation exercise will increase the number of constituencies in the thickly populated and Hindu-dominated Jammu region, which will benefit the BJP. “The government of India’s intention is clear and sinister. It wants to change the demography of the only Muslim-majority state in India, disempower Muslims to the extent that they become secondclass citizens in their own state,” says ex-chief minister Mehbooba Mufti.
THE LEGAL TANGLE
Congress spokesperson Abhishek Manu Singhvi called the dilution of Article 370 “a legally flawed but politically astute move”. What the Modi-led BJP government has done is to use a ‘kill switch’ in Article 370 to render it null and void. So on August 5, when home minister Shah rose in the Rajya Sabha to inflict the most decisive blow to the autonomy of J&K, he did not move any bill to amend the Constitution. Instead, he achieved what he had set out to through a presidential order—the Constitution (Application to Jammu and Kashmir) Order, 2019, which supersedes the Constitution (Application
Business houses are likely to hold back big-ticket investments until there is a definite sense of political stability in Kashmir
to Jammu and Kashmir) Order, 1954.
The presidential order, which comes into effect immediately, has removed the special status accorded to the state of J&K under Article 370 in Part XXI (Temporary, Transitional and Special Provisions) of the Constitution of India. By extension, Article 35A has also been repealed, as it stems from Article 370, having been introduced through a presidential order in 1954.
But can Article 370, which has remained the framework of legislative and executive governance of J&K for 70 years, be made inoperative by just a presidential order? The Modi government anticipated such a question and the certainty of this promulgation getting challenged in court. It did its homework before Shah moved this resolution. The third clause of Article 370 gave the President of India the power to declare the article inoperative or operative with exceptions and modifications, subject to obtaining prior recommendation of the Constituent Assembly of the state of J&K. The Constituent Assembly of J&K, after drafting the state’s constitution, dissolved itself in 1956. This led to the opinion that Article370 can never be repealed or modified as the Constituent Assembly did not exist anymore. The Supreme Court, in April 2018, said though the headnote used the word ‘temporary’, Article 370 was not temporary. In a 1969 case as well, the apex court had refused to accept Article 370 as temporary and said it “has never ceased to be operative”.
To circumvent this roadblock, the presidential order first adds a new clause to Article 367, which deals with interpretation in respect of J&K. It replaces ‘Constituent Assembly of the State’ with ‘Legislative Assembly of the State’. As the assembly is in suspension, the order says that any reference to the legislative assembly will be construed to be a reference to the governor. The governor is an appointee of the Centre and, therefore, Parliament now stands for legislative assembly. “Legal opinions were taken and the process is in order. Currently, Parliament is performing the role of the state assembly,” says Jitendra Singh, Union minister of state for the PMO.
Constitutional experts are divided over the legal validity of this manoeuvring. “It is utterly and palpably unconstitutional. After the dissolution of the Constituent Assembly in 1956, the power of abrogation of Article 370 vanished,” says A.G. Noorani. However, Supreme Court advocate Rakesh Dwivedi and Shreya Mishra, assistant professor of law at the Maharashtra National Law University, believe any plea against the government’s decision will not be successful as the presidential order does not have technical flaws. Former secretary general of the Lok Sabha, Subhash Kashyap, too subscribes to this view:
“As the state is under central rule, Parliament can be interpreted as the legislature of Jammu and Kashmir. So, no concurrence is required from the state government to make changes.”
Shah has also moved a statutory resolution in the Rajya Sabha recommending that the President issue a notification—using Clause 3 of Article 370—to declare that all clauses of Article 370 would cease to be operative and that all provisions of the Indian Constitution would apply to the state of J&K. This, in effect, renders Article 370 null and void for all practical purposes, even if it is not repealed.
While the government seems to have tackled the ‘consent’ of the nonexistent Constituent Assembly of Jammu and Kashmir, constitutional experts have questioned the validity of inserting a new clause in Article 367 as it amounts to a constitutional amendment. It violates Article 368, which mentions that an amendment to the Constitution can be done by introducing a bill in Parliament and getting it passed in both the houses by a majority of twothird of the members present and voting. “Rather
than anything relating to either Article 370 or the bifurcation of the state of Jammu and Kashmir, it is this move that really seems to call the presidential notification into question and appears to be the cardinal legal flaw. How can Article 367 be amended to include a new provision without a constitutional amendment?” asked Madhav Khosla, a junior fellow at the Harvard Society of Fellows, in a column.
The biggest impact, however, is likely to be on the law and order situation of J&K as policing goes to the Centre. With the passage of the Unlawful Activities (Prevention) Amendment Bill, the central government will go for a massive crackdown on separatist elements, who will no more have the cover of state laws. At the same time, Pakistansponsored terror may seek to take advantage of the resentment of ordinary Kashmiris against the government’s move to strip them of their relative autonomy via the effective dilution of Article 370.
In response to the opposition’s criticism that the move was against the spirit of the Constitution and will fuel largescale violence, Shah sought to directly reach out to the youth of Kashmir. “Give us five years, and we will make Jammu and Kashmir the most developed state in the country… I want to tell the youth of Kashmir Valley: have faith in the Narendra Modi government. Nothing negative will happen,” he said in Parliament.
But convincing the people of Kashmir to trust the home minister’s words will be no easy task. For now, given the massive deployment of troops and the incarceration of Kashmiri leaders, the silence of the Valley is deafening. But this enforced silence cannot be taken as a given or eternal. August 5, 2019 is a day that will live on in Indian history. Exactly what it will be remembered for remains to be seen. ■
The biggest impact is likely to be on the law and order situation in J&K as policing goes to the central government
with Shwweta Punj