Five years ago, the Narendra Modi-led Union government read down Article 370, taking Jammu and Kashmir’s special status and statehood, and splitting it into two Union Territories on August 5, 2019. The past five years have seen sweeping changes, glaring rights abuses and big developments in the region. This series looks at where J&K was and where it is now, five years after the move.
Some days after the spectacle of the Indian parliament voting to undo most of the provisions under Article 370 in Kashmir, a friend remarked that it was “like ignoring a corpse in one of the rooms in the house we all live in”. But the murder of democracy in Kashmir is nothing new. It may not have been celebrated in the way it was, but in many ways, it was a continuation of the worst that India has done.
Illustration: Pariplab Chakraborty
Part of the problem is that the passage of the Constitution (Application to Jammu and Kashmir) Order, of August 5 2019 was framed as “the abrogation of Article 370”. In point of fact the order itself was passed under Article 370, even if its intention was to hollow out whatever remained of Article 370. In this, Narendra Modi and Amit Shah continued in the bitter tradition in the way that Article 370 has been used. Only the comprehensive nature in which any and all Kashmiris were excluded can be considered something new.
Heretofore, Indian governments have been cautious in creating a form of ‘consent’, since the Article flowed from the Instrument of Accession, and gutting it without consent undermines the legal standing of Kashmir’s accession to India. But as for Article 370, it was a flawed provision to begin with. While it is often considered to give unprecedented autonomy to the people of Jammu and Kashmir, it also gave unprecedented power to the President or Sadar-e-Riyasat of the state. In his authoritative book on Article 370, A.G. Noorani cites Sheikh Abdullah’s reservations about these powers, and how V.P. Menon and Jawaharlal Nehru convinced Abdullah to accept the compromise as the only way the Indian Constituent Assembly would pass the Article. Abdullah would pay for this acceptance on August 8, 1953 when the Sadar-e-Riyasat dismissed him as prime minister of Jammu & Kashmir, and had him arrested.
The Constituent Assembly of Jammu and Kashmir, which created J&K’s own Constitution, only came out with its provisions in 1954, when Abdullah was in jail. Its provisions – including the extension of the powers of the Indian Supreme Court to J&K – were accepted in the Presidential order of May 14, 1954. Nearly fifty Presidential orders have followed since then, from 1955 to 2018, chipping away at every aspect of the autonomy of J&K. During this time every elected head of state, a position downgraded from prime minister to chief minister in 1965, has been dismissed from his or her post because of New Delhi, either through arrest or by some “Agreement” or change of coalition. The only elected head of state that escaped this fate was Ghulam Mohammad Sadiq, because he had the doubtful privilege of dying in office in 1971 rather than being shown the door by New Delhi.
This is not to say that Article 370 was wholly without value to Kashmiris since it enabled the passage of the remarkable land reforms Sheikh Abdullah and Mirza Afzal Beg pushed through before Abdullah was dismissed and jailed. These would have been impossible had J&K sided with the Muslim League, which was dominated by landowners at the time. Land reforms in India were half-hearted affairs where “land to the tiller” often meant that land never reached the tiller, spawning rebellions like the Naxalbari movement.
Jammu and Kashmir’s autonomy, though, allowed it to actually manage such a radical change, turning the kingdom of Dogra princes in which famines and enforced labour were the norm in the Kashmir Valley, into a region where farmers actually became self-sufficient, long before the advent of the Green Revolution in South Asia. Even the two regions often set against the Kashmir Valley – Ladakh and Jammu – benefited, as can be seen in the protests in Ladakh against the heavy-handedness of the Union Government, and the rumblings in Jammu about reservation of jobs for local residents.
The success of land reform, though, was central to Abdullah’s achievements, and it was that success which is likely to have undone him. Shyama Prasad Mukherjee, the leader of the Jana Sangh, and not uncoincidentally a zamindar himself, campaigned to turn the issue into a Hindu-Muslim one, pitting the landowners of Jammu against the freed serfs of Kashmir. He died in Kashmir, after his arrest for entering the province illegally, in 1953, but by that time he had done enough to vitiate the atmosphere against both Article 370 (which he had once supported) and against Sheikh Abdullah.
Also read: J&K’s Economic Growth Slumps After Article 370 Abrogation, Forum for Human Rights Report Finds
Many have called the order of August 5, 2019, as a fulfilment of Mukherjee’s vision, and just as a zamindar could not accept the autonomy of peasants, the order ignored Kashmiris — in fact all of the people of J&K — totally. Instead, it stated that the then governor of J&K — an appointee of the Union Government — represented the wishes of the people of the state. This is the ultimate perversion of democracy, in effect saying that the “We, the government”, not “We, the people”, are the state.
Many had — naively — hoped that the Supreme Court would have difficulty in accepting that a government appointee is representative of the people. In the end the Supreme Court’s convoluted judgment did the opposite — arguing that it could not act as a check on the executive during Governor’s Rule in J&K. Furthermore, it argued that Article 370 was a temporary provision, which could be annulled in the interests of extending Constitutional provisions to Kashmir.
There are three problems with this logic, two obvious, and a third, much more subtle. The first is that the most important job of the judiciary is to act as a check against illegal and unconstitutional actions. If it is not willing to do that, why does it exist at all? The second point is that extending a democratic Constitution by undemocratic means is patent nonsense. This should be obvious to a country that had to endure nearly two centuries of foreign rule while Englishmen waffled on about “The White Man’s Burden”. A more immediate example is nearby Afghanistan, where the US empire was supposedly building democracy by aerial bombardment. It did not turn out well for anybody, and certainly not for any hopes of democracy.
The last, most challenging issue, is whether the Supreme Court had any right to judge Article 370. To state the obvious yet again, this provision was an outcome of Accession, in effect, an agreement between two sovereign entities, very much like the agreements between the Unted States and native American communities or Canada and its First Nations, or China and its Seventeen Point Agreement with Tibet. No country has found a just solution to this, and most ignore it as India has done. Because if we accept that the extension of the authority of the Supreme Court to J&K was done by Presidential Order after Sheikh Abdullah was jailed, it would mean that the whole edifice of Indian jurisprudence in J&K rests on shaky ground.
To understand Kashmir is to understand that the Indian government has deliberately undermined democracy there, that it has replaced what should have been a government of “We, the people”, to a government of “We, the rulers”. It has done this with the assistance and connivance of the very institutions that were meant to protect democracy.
Of course, for many of those in favour of what we have done neither law or democracy are important, only the ability to get away with something. For the others, those of us who cannot abide with living with the corpse of democracy in one of the rooms in our house, we must grasp the scale and history of what has been done in our names. Rolling back the despotism of the last few years is not enough. We owe it to both Kashmiris and ourselves to confront the whole of the problem, and ask ourselves, honestly, do we believe in democracy, or do we not?
The problem is not Kashmir. It is India, and our denial of democracy. If we refuse to see that, nothing will change.
Omair Ahmad is an author and journalist.
Read more from the series here.
