If voter turnouts are the midwives of a vibrant democracy, consider this: on April 7, 2017, only about seven percent voters in Srinagar turned up for voting in by-polls on a Lok Sabha seat. The elections were marred by violence: Indian media outlet NDTV reported nearly 200 instances of violence, including incidents of stone-throwing and petrol bomb attacks. One polling booth was torched by protestors and electronic voting machines were damaged to stop polling. As law enforcement responded in kind, eight people were killed while about 100 security personnel were injured. The seven percent turnout was the lowest in 30 years.

The Indian election commission subsequently ordered a re-poll, particularly in the 38 polling stations of Budgam district of Srinagar which were the worst-hit during the first round of by-polls. The voter turnout fell further: from seven percent, the re-polls returned a turnout of about two percent.

While the India-held valley of Kashmir is in a deep state of violence for the last several years, the current crisis in Kashmir signifies a democratic impasse. This has been brought on by the Narendra Modi regime attempting to end the special status given to India-held Jammu & Kashmir (IHK) as envisaged in Article 370 of the Indian constitution and fully absorb it into the Indian Union.

India-held Jammu and Kashmir enjoys special status in the Indian constitution but the BJP’s push to absorb it into the Indian Union has larger ramifications

The situation deteriorated after the killing of a Kashmiri youngster Burhan Wani, last July. Kashmiri assertions against Indian military control and atrocities are reflected in frequent protest marches particularly by the school and college female students in Srinagar. But the Bharatiya Janata Party’s (BJP) road to integrating Kashmir into the union is fraught with various stumbling blocks. The Srinagar seat had, in fact, fellen vacant after a leader from the ruling People’s Democratic Party (PDP), Tariq Hameed Karra, resigned in the aftermath of protests following the killing of Hizbul Mujahideen activist Burhan Wani.

Former IHK chief minister and National Conference (NC) leader Dr Farooq Abdullah accused the PDP of having betrayed the will of Kashmiris since the PDP had pledged to keep the BJP out of Kashmir. Abdullah eventually won the violence-marred polls.

Recently, in an interview given to India Today, Farooq Abdullah made it clear that India should wake up as it may lose Kashmir if it fails to control violence and mend fences with the youth and those who are in revolt against New Delhi. Meanwhile, the Indian government informed its Supreme Court that no talks will be held with separatists.

SIGNIFICANCE OF ARTICLE 370

Article 370 of the Indian constitution was formulated particularly for IHK. it provided special autonomous status to people living under the Indian-controlled region. Enforced on January 26, 1950, Article 370 was termed an attempt by New Delhi to achieve two objectives: first, to prevent the secession of Indian-controlled parts of IHK by providing special privileges in the form of autonomy. And second, to ensure the secular nature of the Indian state. J&K is the only Muslim-majority state in the Indian Union and is presented as a model of religious diversity and unity of the Indian state.

An article titled “What is Article 370: three key points” which was published in the Times of India on May 28, 2014, argues that as per Article 370, except for matters related to defence, foreign affairs, finance and communications, the Indian parliament needs the state government’s agreement to apply all other laws in IHK. This means, compared to other Indians, the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property and fundamental rights. As a result of this provision, Indian citizens from other states cannot purchase land or property in IHK.

But with the passage of time, the Indian state not only reneged from its pledge to hold a plebiscite to determine whether the people of IHK want to join India or Pakistan, but also began to curtail the so-called autonomy given to that former princely state under Article 370. For instance, the positions of Sadr-i-Riasat (president) and prime minister were abolished and deepening of the centre’s rule in IHK became a policy of the Indian state.

The two posts had been created under Article 370 to assure the identity of IHK but they were replaced with those of governor and chief minister, respectively. As the years passed, the original shape of Article 370 eroded as IHK came under the virtual occupation of the Indian military with brutal acts of human rights violations, particularly against the Kashmiri Muslims calling for “Azadi.”

It is quoted in M. Hidayatullah (ed.), Constitutional Law of India, Vol. 2 that “Gopalaswami Ayyangar, while introducing article 306-A (now Article 370) in the Indian Constituent Assembly on October 17, 1949, said that a distinction was made for Kashmir due to special conditions prevailing in the region where a war had led to an agreed ceasefire in the year. According to him, the Government of India had made certain commitments to the people of Kashmir, which included an undertaking that an opportunity would be given to them to decide for themselves whether they wished to remain with the Indian republic or leave it.”

Furthermore, “it was also agreed that the will of the people would be ascertained by means of a plebiscite, provided peaceful and normal conditions were restored and impartiality of the plebiscite could be guaranteed.”

Paradoxically, the special status given to IHK in the Indian Union is under a temporary provision which was drafted in 1947 by Sheikh Abdullah who was appointed as prime minister of IHK by Maharaja Hari Singh and the Indian Prime Minister Jawahar Lal Nehru. Nehru, with his Kashmiri background, wanted to maintain the identity of IHK by providing it with a special status in the Indian constitution, pending its final settlement. Sheikh Abdullah made it clear, however, that IHK will not become an integral part of the Indian Union and would have full autonomy.

While the India-held valley of Kashmir is in a deep state of violence for the last several years, the current crisis in Kashmir signifies a democratic impasse. This has been brought on by the Narendra Modi regime attempting to end the special status given to India-held Kashmir (IHK) as envisaged in Article 370 of the Indian constitution and fully absorb it into the Indian Union.

Ironically, Sheikh Abdullah, once an ardent supporter of Article 370, had by the early 1950s developed differences with the Indian prime minister on the matter of granting maximum autonomy to IHK which resulted in his removal from his office and arrest. In 1954, Article 35-A was added to the Indian constitution which covered matters pertaining to employment, immovable property and so forth.

TO UNDO OR NOT?

The Indian house is divided over whether to repeal or maintain Article 370.

The first school of thought wants to repeal it by abolishing the special status given to Jammu and Kashmir and fully absorbing it into the Indian Union. This position is represented most vociferously by the BJP.

During his election campaign more than two years ago, Narendra Modi made it clear that once in power, the BJP will take all necessary measures to abrogate Article 370 from the Indian constitution and annex IHK into the Indian Union. It was termed an irresponsible approach by critics of the BJP with dangerous implications for the Indian Union. But the hardline BJP leadership has maintained the stance.

According to the BJP’s spokesman Sambit Patra: “As far as the abrogation of Article 370 is concerned, it continues to be part of the core ideology of the BJP, but right now we don’t have enough numbers in the parliament to do away with it … but in future when we have the required numbers we will work towards its removal.”

The second school of thought is against the repealing of the article as it considers the law to be a guarantor of Indian secularism and one that maintains the identity of IHK.

History has proven that India has failed to honour its commitment made to the people of IHK seven decades ago and tried to entrench its control over that territory by military means. Repealing Article 370 is, however, an uphill task because the Indian parliament would have to pass a bill to amend the constitution, containing a provision for the repeal of the article.

Indian writer S.P. Sathe in his article titled “Article 370: Constitutional Obligations and Compulsions” in the April 28, 1990 issue of Economic and Political Weekly writes: “Such an amendment will have to be passed by two-thirds of the members’ present and voting and absolute majority of total membership in each house of parliament. Since an order under Article 370 making the constitutional amendment under Article 368 ipso facto applicable to Jammu and Kashmir cannot be issued except with the concurrence of the state government, no unilateral action can be taken by the Centre in this regard.”

According to Sathe, “It is in India’s interest to retain Article 370 until the government of Kashmir agrees to its repudiation. Article 370 should morally strengthen India’s claim over Kashmir. Ultimately no one people can keep another people in subjection against their will. The central government will have to win over the people of Kashmir and convince them that their interests are safe in India and that they enjoy the fruits of democracy and autonomy within the Indian federation. This is the real challenge before the Indian leadership and any talk of abrogating Article 370 would further alienate the people of IHK from India.”

Given the history, the way forward is laden with more hurdles. The hard-line BJP and Hindu nationalist mindset is firm on diluting the special status and identity of J&K by using tactics ranging from establishing colonies in the valley for non-residents and Kashmiri Hindu pundits who left the valley after the violence that took place in the 1990s, so as to transform the demographic complexion to their advantage.

But they also have Muslim support. Chief Minister Mehbooba Mufti’s government has identified over 90 acres to construct 6,000 “transit homes” to resettle Kashmiri pundits. The pundits’ families have been offered homes and jobs if they are willing to return and work in IHK under a 500 crore-rupee drive of the Mufti government.

Secondly, Indian civil society, democratic institutions and technical complications in the way of repealing Article 370 are sufficient to deter any move to undo the said article. The Modi regime also knows that any attempt to repeal Article 370 will have far-reaching consequences which may be detrimental to the Indian Union. Given the heterogeneous nature of the Kashmir conflict, it will be an uphill task to seek a resolution of an issue without taking on board the local stakeholders representing the five regions of IHK.

The BJP has been in power for more than two years but it has not taken any noticeable initiative to repeal that article. This should provide a clue to the difficulties inherent in the exercise. However, it would be wishful thinking to expect the current leadership of the BJP to abandon its age-old dream to fully absorb J&K in the ambit of the Indian Union.

The writer is Meritorious Professor of International Relations at the University of Karachi.
Connect with him over email: amoonis@hotmail.com

Published in Dawn, EOS, May 7th, 2017