The abrogation of Article 370 of the Constitution of India and the cessation of the state of Jammu and Kashmir by the Jammu and Kashmir Reorganization Bill, 2019 orchestrated by the BJP government, has dealt a deathblow to democracy in India. The Constitution has been torn up by the government of India, and the concept of Federalism, one of the bedrocks of the Indian constitutional system has been thrown to the winds. By declaring the only Muslim-majority state in India to be non-existent, the Hindutva-inspired government has sent out a threatening message to all minorities in India. The entire “idea of India”, created after independence as a constitutional state, abiding by laws and treaties, whatever be its shortcomings and multiple failures, is now on the verge of destruction.
Article 370 defined the special status of Kashmir, considering the irregular way it was incorporated in the Union of India post partition. Its roots lie in the Instrument of Accession signed by Hari Singh, the last king of Kashmir, to join India in 1947, Article 7 of which made clear that Kashmir was not “fettered” to accept any future Constitution of India. India is a signatory to this Instrument of Accession. Article 370 considers the fact that no plebiscite was held in Kashmir, a Muslim majority state ruled by a Hindu ruler, on whether its population wanted to join India, although the joining of Junagadh, a Hindu majority princely state ruled by a Muslim ruler, to India was based on a plebiscite of its people. Article 370 therefore constituted the basis of the bond between the people of Jammu and Kashmir and the state of India, respecting the special circumstances of Kashmir and its accession to the Union of India. Although for most Kashmiris, Article 370 was a symbolic term which had lost its actual meaning as the people of Kashmir were never protected from the depredation’s of the Indian state, the BJP government’s action in abrogating Article 370 has effectively severed this bond rather than strengthening it, making India a de jure occupying power in Kashmir.
Associated with Article 370 was Article 35A, which allowed the state government of Kashmir to determine the permanent resident status of citizens, which determined that only permanent residents could buy land and get government employment. It was clarified during the debate on Article 370 in Parliament in 1963 that this rule was in effect from the times of princely rule in Kashmir and was not a new invention. Also, Article 35A is in operation in 11 other states in India, including Himachal Pradesh and the North-eastern states, where the demographics and economic condition of the local population is fragile, and can be threatened by the large scale influx of outsiders. By removing Jammu and Kashmir, the only Muslim majority state in India, from the ambit of Article 35A, the BJP government has fulfilled the dreams of Hindutva supremacists and cleared the path of setting up a colonial settler state in Kashmir. Also, Kashmir has always been in the gunsights of the corporate-sponsored fascists because it is the only state in India where the separate constitutional arrangements had allowed comprehensive land reforms, without compensation, which were based on the socialist “Naya Kashmir” manifesto which the National Conference had adopted during its struggle against the feudal rule of the maharaja.
The way in which Article 370 has been abrogated can be described as a parliamentary joke at best and a fraud on the Constitution at the worst. Although Article 370 comes under the “temporary, provisional and transitional” section of the Constitution, multiple judgements of the Supreme Court, the last one as late as in 2018, has clearly declared it to be a permanent part of the Constitution, which cannot be abrogated by a presidential order. Article 370 clearly states that this article can only cease to be operative based on the recommendation of the Constituent Assembly of Kashmir. As the Constituent Assembly of Kashmir ceased it exist in 1957, Article 370 came to be considered as a permanent part of the Constitution, which was supported by multiple judgements of the Supreme Court. The BJP government has committed multiple frauds on the Constitution by its Presidential Order, which purports to amend Article 367, an unrelated section of the Constitution, by adding a new clause which redefines the Constituent Assembly of the state at its Legislative Assembly. Now, as the Legislative Assembly of Jammu and Kashmir has been dissolved and the state is under President’s rule, it has considered the Governor, an appointee of the central government as the government of the state, and has passed the Presidential Order on the basis of the support of the Governor. This constitutional jugglery defies logic and is patently illegal, and should be opposed by all means.
Secondly, by the introduction of the Jammu and Kashmir Reorganization Bill, 2019, the state of Jammu and Kashmir has essentially been destroyed and replaced by a Union Territory of Jammu and Kashmir with a legislature and a Union Territory of Ladakh without a legislature. This is a frontal attack on the democratic rights of the people of Jammu and Kashmir as their right to have an elected government has been essentially abolished. Also, this is unconstitutional as Article 3 of the Constitution clearly states that Parliament can consider a bill that causes changes in the nature of a state’s government only if the bill is “referred by the President to the Legislature of that State for expressing its views thereon.” As the Legislature of Jammu and Kashmir has been dissolved, this essential provision of the Constitution has been violated. Making Jammu and Kashmir a Union Territory makes it subject to direct rule by the central government, specifically areas like law and order and land will be under the control of the central government, making it easier to impose an extremely repressive colonial settler state and opening up the land to the looting by Ambani, Adani and other looters of India Inc. including the stone quarrying and sand mining mafia who will destroy the rivers of Kashmir as they have done in Uttarakhand. Moreover, this creates a precedent by which any state whose legislature has been dissolved can be converted to a Union Territory, or its federal nature violated otherwise, by the central government.
All this has been done in the backdrop of a massive scale up of the militarization of Kashmir, with 68000 more paramilitary personnel stationed there in addition to the 650,000 already present. The entire state has been shut down and all forms of communication with the rest of the world has been snapped off, political leaders of all parliamentary parties, including two ex-chief ministers have been arrested or put under preventive detention. Essentially, the entire state has been cordoned off and an Emergency declared for the preparation of what seems to us like a blood bath of epic proportions. The people of Kashmir will definitely protest with their lives against what essentially is the abolition of their existence, as they have been protesting for generations now, and as reports are trickling out of Kashmir through international media. It is now for the people of India, especially the organizations which hold democratic ideals dear, to unite to protest against this action of the Hindutva supremacist BJP government, as this is clearly a sign of what is in store for us in the coming days. Because, the existence of India as a state with any semblance of democracy is now disappearing in front of our eyes. We remain silent at our own peril.