The Indian government’s decision to abrogate Article 370 of the constitution and revoke Jammu and Kashmir’s special status has significant implications for rule of law, federalism and secularism in the country while the road to peace in the state remains unpaved.

The government of India with a presidential reference abrogated Article 370 of the constitution that had given special status to the state under its annexation agreement with India in 1947. Under the article the state had its own constitution, flag and assembly to guard its autonomy, but now it will be governed from New Delhi.

Rule of law and federalism damaged

On its face, it seems within the government’s jurisdiction, but for the reason that the said article itself defined the terms of its demise, providing that such a recommendation must come from the Constituent Assembly, later replaced by the words “legislative assembly” by a government order in 1952, makes it untenable. The recommendations of such a change must come from the legislative assembly of the state, which was recently dissolved. But the government decided to bestow all the powers of the assembly on to an unrepresentative governor, empowering him to recommend to the president that he issue an order effecting the change. This is stretching the rule of law to a farce, and an action on such a premise in a constitutional democracy is like committing daylight robbery on people’s rights.

Article 370 was an important element of the constitution, serving as an extension of the principle of federalism that provides for division of powers between the central government and the states under Part IX of the charter. Reducing a state to a status of a union territory and usurping its powers through an executive order is a strike at the federal character of India, which according to Article 1(a) of the constitution “shall be a union of states.” This must ring an alarm in many northeastern states that share a similar relationship with the union of India as Jammu and Kashmir did.

Assault on civil liberties and secularism

In the aftermath of the decision, the government has taken tough security measures in Kashmir. The Internet was shut down, paralyzing communication. People are experiencing serious civil-liberty restrictions on treatment in hospitals, education in schools and communicating with their loved ones. More than 3,000 people are in custody and police are monitoring streets. It is a state of emergency asphyxiating more than 7 million people and all seems to be happening lawfully. On the contrary, people should worry that what goes on in Kashmir today can happen in any part of the country tomorrow.

In the name of fighting terrorism in Kashmir, the government has acquired extraordinary powers, including powers to declare an individual a terrorist. This is bizarre, as any intellectual could be dubbed an “Urban Naxal” and be called anti-national and linked with terrorism. Given the government’s grip on social and electronic media and the status of the police, it is a hammer in the hands of a majoritarian-mindset government to crush any dissent in a pluralist country needing no formal declaration of civil emergency.

While the regions of Jammu and Ladakh have welcomed the government’s action, the Kashmir Valley is extremely resentful amid reports of protests and curfews revealing religious polarization in the state, as Jammu and Ladakh have majorities of Hindus and Buddhists while Kashmir is nearly all Muslim. This is bad news for secularism in the country as Jammu and Kashmir, a Muslim-majority state, co-existed with majority-Hindu India under the assurance of secularism under which it felt protected. That protection, however, now formally seems withdrawn, at the same time unnerving about 170 million Muslims in the rest of the country who feel threatened by a communalized atmosphere.

On a positive side, the move has benefited tens of thousands of Pakistani refugees and scheduled castes who had been deprived of basic human rights like voting and employment in government and could not buy or sell property despite being in the state for more than 70 years. The political leadership of the Kashmir Valley failed to rise to the expectations of these marginalized people. Besides, more than 500,000 Kashmiri Pandits too may nurse a hope now to reconnect with their motherland.

No easy road to peace

The government’s argument is that it has taken this step for development of the region that would provide employment to youth, meaning that the government intends to gain support of the people and fight militancy, weaning people away from radicalization. This could have been possible in a secular India where rule of law was sacrosanct, but in today’s highly communalized India, it does not hold much potential. It is noticeable that Islamic radicalization in Kashmir is closely linked to the rise of Hindu fanaticism in Indian polity and governance. It is unrealistic to wish one away while stoking the other, as manifested in unabated lynching of Muslims in the country and acquittals of the accused.

The government has embarked on a military solution to the Kashmir issue. The repression, however, will lead it to a long-drawn battle with people’s protests and militancy. With Pakistan extending political support and the Taliban freed from their battle to oust the Americans from Afghanistan, Kashmir is far from seeing the light of peace any time soon.

Pushkar Raj is a researcher and author based in Melbourne. Formerly he taught political science in Delhi University and was the national general secretary of the People’s Union for Civil Liberties (PUCL).

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