EDITORIAL | Bold J&K move, but troubling questions

An activist and supporter of Indian left wing parties holds a placard during a demonstration to protest against the presidential decree abolishing Article 370 of the constitution giving special autonomy to Muslim-majority Kashmir, in New Delhi on August 5, 2019. - The Indian government on August 5 rushed through a presidential decree to scrap a special status for disputed Kashmir, hours after imposing a major security clampdown in the region. (AFP)

No one will argue against the need to integrate Jammu and Kashmir better into the Indian Union and to solve the festering problem that it has been since its conditional accession to India in October 1947, in the early and tumultuous months after Independence and Partition, made worse by the attempts by Pakistan then and subsequently to either wrest the territory from India or to foment a seemingly unending anti-India struggle and bleed this country. No one can also argue that successive governments either felt unable or were unwilling to address the issue, choosing rather to rely on Article 370 — the constitutional provision that was negotiated and accepted as the condition of accession of J&K to India by Sardar Vallabhbhai Patel and V P Menon — to keep the restive Kashmir province satisfied. Nor can anyone argue that successive generations of the Kashmiri political leadership chose to use the special status to enrich themselves, on the one hand, while playing a dubious game with Delhi as well as the people of Kashmir, on the other. We can, therefore, acknowledge as a bold move the attempt by the Narendra Modi government -- whose Home Minister Amit Shah has cited all of the above as the reasons -- to hit at what it sees as the root of the problem.

Article 370 scrapped: Live Updates

Govt bites the bullet, scraps J&K special status

Yet, the revocation of Article 370 is an action whose consequences may be difficult to foresee now. The government has also changed the existing territorial and political status of the state by bifurcating it into two union territories comprising Jammu and the Kashmir Valley as one unit and Ladakh as another. While Ladakh will not have a legislature, J&K will have one. Abrogation of the Article and changing the terms and conditions of accession unilaterally is a breach of faith and of contract between the Indian State and the people of J&K. Of course, Article 370 was meant to be a temporary provision and it should have been worked out of the Constitution long ago through a democratic process. But that it was not done earlier is no justification for suddenly waking up one fine day and scrapping it unilaterally as the government has now done. Individuals may be entitled to such arbitrariness, governments and nations are not.

An important issue that comes up with the government’s decision, apart from its constitutionality and propriety, is why it was taken and how it has been given effect to. The removal of Article 370 has always been on the agenda of the BJP and its predecessor, the Jan Sangh. The party thinks that the Kashmir problem can be solved with the removal of its special status and full legal integration of the state with the Union. This is a simplistic view of the situation in Kashmir. The scrapping of Article 370 is only bound to lead to a further deterioration of the situation. It is not just the separatists, who even with a special status would not like the state to be part of India, but even political parties which have operated and worked within the Indian Constitution, like the National Conference and the People’s Democratic Party have strongly opposed it. They have warned that it would even put an end to the relationship between Kashmir and India. It may exacerbate the problem of militancy which, of late, has shown signs of taking on the dimensions of a religious and Islamist conflict with a Hindu India. If the situation does take a turn for the worse, how will the government deal with it – by talking to Kashmiris or by an intensifying oppression?

The government’s decision is part of the hardline policy and strong-arm tactics that it has followed in Kashmir. The state has not had a representative government for over a year. At the same time, more and more troops have been deployed to the state. In the last few days, the government also took a number of measures which, in retrospect, were preparatory to Monday’s decision. Leaders like former chief ministers Mehbooba Mufti and Omar Abdullah have been detained or arrested, communication lines cut and restrictions imposed under Section 144 in the Kashmir Valley. It is unfortunate that a decision affecting the lives of the people of the state and their future was imposed on them without their participation and consent.

Since the J&K Assembly has been dissolved, technically Parliament can legislate on its behalf. The government has made use of this provision to give a semblance of legality to its decision. But the procedure adopted would not be accepted as fair and right. The President has issued an order which has removed the special constitutional provisions. It is a moot question whether a Presidential Order can amend the Constitution. Amit Shah introduced two resolutions and a Bill which would give effect to the Presidential Order and the government’s decisions. The procedure is certain to be challenged. But the issue certainly goes beyond procedure, legality and constitutional technicalities. Even if the special status of Kashmir had to be scrapped and the political structure of the state changed, it should have been done more democratically, and with greater legitimacy. It should not have been done without the knowledge and consent of the people of the state. The government has not just scrapped the special powers vested in J&K, but it has made it clear it can do whatever it wants with the constitutional powers of any state in the country. In that sense, it is an attack on the federal structure of the country. 

All said, and all arguments for and against the decision considered, the ultimate test of its correctness and efficacy lies in whether it will bring peace and normalcy to Kashmir. The test is in the future. It is historic and momentous, but history is assessed and judged by the future, not by the present. 

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