Modi’s Majoritarian March to Kashmir

Indian Paramilitary soldiers standing guard during the curfew in Srinagar, Indian controlled Kashmir, on Wednesday. Credit Dar Yasin/Associated Press
Indian Paramilitary soldiers standing guard during the curfew in Srinagar, Indian controlled Kashmir, on Wednesday. Credit Dar Yasin/Associated Press

Kashmir, over which India and Pakistan have fought four wars since the partition of the Indian subcontinent in 1947, has been the battleground for competing, conflicting ideologies. For Pakistan, the Muslim majority Jammu and Kashmir was a critical missing piece in its positioning of itself as the South Asian Muslim homeland. For India, the state became the symbol of secularism for India in its post-colonial nation-building project.

But with the rise and rise of India’s Hindu nationalists, the very idea of India is being redefined and repurposed. To assert this redefining of India as a muscular, majoritarian nation state, there could have been no better place than Kashmir: a United Nations-endorsed, internationally accepted, disputed territory with a Muslim majority fighting an armed insurgency against the Indian state for the last 30 years.

India’s governing party, the Hindu nationalist Bharatiya Janata Party, its affiliated groups and its supporters have historically seen Kashmir and its status in India as a constitutional anomaly and an ideological aberration: a sovereign within a sovereign, a constitutionally privileged, naturally well-endowed island of Muslim majority in the Himalayas. For them, Kashmir was a symbol waiting to be rebranded, the perfect geography from where to announce the rise to dominance of India’s new aggressive nationalism and unabashed majoritarianism.

And on Monday, about two months after the re-election of Prime Minister Narendra Modi of India and his Bharatiya Janata Party with a massive mandate, Mr. Modi’s government took the unprecedented, unilateral decision to abolish the constitutionally guaranteed special status of the state of Jammu and Kashmir. Its territorial integrity has been mauled by bifurcating it into two federally administered territories, its legislature has been disempowered and its people disenfranchised.

Before the catastrophic move was announced, tens of thousands of additional Indian troops were moved to the Vale of Kashmir to ensure a complete lockdown and a cutoff of communications with the broader world — phones, internet, television and newspapers. As the Indian Parliament approved monumental disenfranchising, converting the people of Kashmir to second-class citizens, if not subjects, they were held as prisoners in their own homes.

Carried out with the secrecy and the precision of a military operation, the constitutional sin that has been committed has gained mass acceptability in India after the Goebbelian propaganda, on Indian television networks, in newspapers and on social media, that preceded it.

On Monday, the president of India issued and enforced a constitutional order, without the approval of the Indian Parliament that changed the constitutional framework with which Jammu and Kashmir operated in the union of India. The autonomous character and special status of Jammu and Kashmir in India, as defined by the Constitution of India, has been abolished unilaterally.

The approval of the Indian Parliament for divesting Jammu and Kashmir of its statehood, and thereby significantly curtailing its legislative powers and even reducing its administrative decision making, was sought and easily given without serious debate.

Article 370 of the Constitution of India is unambiguous in spelling out the relationship of Jammu and Kashmir with India. Constitutionally speaking, no changes could have been made to this relationship without the consent of the Constituent Assembly of Jammu and Kashmir, which was convened in 1951 and dissolved in 1954.

Yet the process of dilution of the autonomous character of Jammu and Kashmir started way back in the 1950s. Even after acceding to India in 1947, the state had its own separate Constitution, its own national flag, its own prime minister and president. It was the only state that could choose not to implement federal legislations by not passing them in its state legislature.

The residents of the state were not citizens of India till 1954, and Indian nationals required a travel permit to visit Jammu and Kashmir until 1959. With every passing decade, constitutional guarantees were either withdrawn or diluted to curtail the original autonomous position of the state, but never before had the structure been changed.

The amendments made by the B.J.P. government have taken the glaring liberty of changing key phrases in Article 367 of the Indian Constitution, replacing the “Constituent Assembly” of Jammu and Kashmir, which drafted the state constitution and approved the relationship with India, with “Legislative Assembly.” The former exercises constituent power — an expression of sovereign authority — whereas the latter embodies representative power.

This change of phrases enables the Indian government to abrogate Article 370 — which embodied the autonomous status of the state — with the concurrence of the Legislative Assembly of Jammu and Kashmir. While the efficacy of Article 370 has been destroyed, it is still on the books as a Proustian vestige of the past. Now, the process for its abrogation has started.

The Supreme Court of India has the power to review and strike down any constitutional amendments enacted by the Parliament if it alters the basic structure of the constitution as this amendment does, but in the refashioned India there is little hope of justice and fair play.

For more than a year, Jammu and Kashmir has been without an elected government and has been ruled by the president of India through a governor appointed by Mr. Modi’s government. On Monday, the president of India equated the federally appointed governor with the elected representatives of Jammu and Kashmir and vested all their legislative and constitutional powers in him. This is a constitutional burial of the democratic rights of the people of the state.

The changes brought about by Mr. Modi’s government have reduced the erstwhile state of Jammu and Kashmir to being an appendage of the federal government, to be effectively administered by New Delhi.

The measure has also abolished the residency rights enacted by the maharajah of Jammu and Kashmir in 1927 and incorporated in the Article 35A of the Constitution of India in 1954, which gave the people of Jammu and Kashmir exclusive rights to property within the state. Indian citizens who were not defined residents of the state could not buy land there.

The erasure of the residency rights has set the ball rolling for changing the demographic character of the only Muslim majority state in India — an old desire of the Hindu nationalists, the Indian version of the Israeli policy of settlements or what the Chinese have done in Tibet, flooding it with Han Chinese.

Mr. Modi’s party is seeking to get a majority and take control of the Legislative Assembly of the now-federally administered territory of Jammu and Kashmir. It could happen as soon as in the next six months, and then the remaining vestiges of Jammu and Kashmir can be obliterated. Once this is done, the federal government can seek and get any concurrence that is required to legitimize the constitutional impropriety that has been committed.

Meanwhile, in Kashmir, the insurgency fighting to undo historical wrongs and betrayals, will get a new reason to fight. This time, the Kashmiri insurgents will be morally supported even by the pro-India parties in the region. Kashmir’s crowded political space will now get reorganized into two clusters: stooges and separatists. The middle ground has been obliterated.

What has been done to Kashmir is calamitous for the state, but it also threatens the Indian government’s federal compact with other states and will alter the social compact with the people across the country.

The nature and the manner of changes forced upon Kashmir pitch India as a republican democracy against India as a majoritarian democracy. With the assault on the leftover autonomy and special status of Kashmir, the Constitution of India has ceased to be a safeguard against the brute power of majoritarianism.

Haseeb A. Drabu is a former finance minister of Jammu and Kashmir.

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