Steady Erosion of the Constitution

The people of Jammu and Kashmir on both sides of the border have been continuously betrayed by the governments of Pakistan and India.

In the Indian-occupied part of the province, previous governments, with the support of puppet-state regimes and rigged elections in the Valley, systematically eroded the autonomous powers and rights of the region. In the face of deepening resentment among the population, Modi’s repressive moves were the only way to contain Kashmiris’ growing anger and militancy.

One can recognize the nefarious role played by the Pakistan government, and the Islamist forces supported by them, in this scenario. But the truth is that the Indian government created and maintained the “troubled waters” in the Valley, in which, from the late eighties onwards, Pakistan fished. All previous Indian governments were determined to maintain territorial unity and military-political control of the valley at all costs, regardless of the suffering of the people of Kashmir or what Kashmiris wanted. In short, the land was always more important than the people.

The latest action is the final step in ending whatever remains of Jammu and Kashmir’s claim to autonomy and respect for its distinctive history, culture, and political hopes within the Indian Union. The BJP/RSS motivation is not just a reassertion of the principle of prioritizing territorial unity; it is also motivated by a foundational hatred of Muslims and Islam and determination to reduce Indian Muslims to second-class citizens as part of its drive to establish a Hindu nation and state in all but name. This action has consequences specifically for the three parts of the region, for the rest of India, and for India’s relations with Pakistan.

It was carried out through a brazen violation of the constitution. The fundamental basis for the region’s incorporation into the Union was through the sovereign authority of a Jammu and Kashmir Constituent Assembly set up in 1951 and permanently dissolved in 1957. While a state legislature — which can never have sovereign authority but only a representative authority — was repeatedly used to make modifications and shift more and more powers embodied in the Indian Constitution to the province, the annulment of Art. 370 can only be done by that Constituent Assembly.

To get around this, the Modi government used another Article 367 to introduce a clause to make a state legislature the equivalent of a constituent assembly. Then, if a state assembly is not in operation because, for example, President’s Rule has been imposed, this allows the president to usurp the powers of this assembly and issue ordinances that become law. Given this unconstitutional equation, the next step was then to nullify Art. 370 and following this, scrap Art. 35A, which prevented private land sales or state government post to those not domiciled in Jammu and Kashmir.

The issue has already been taken to the Supreme Court. It will almost certainly not reverse these unconstitutional acts. It may overturn the arbitrary downgrading to UT status of one or both the parts (although this too is unlikely). As it is, the Supreme Court ruled on August 13 that this military lockdown could continue for two weeks. If the Supreme Court does not strike down this unconstitutionality, it will have set a dangerous precedent whereby the president, at the behest of the prime minister and cabinet, can dramatically accelerate much greater centralization of power in New Delhi vis-à-vis all other states within the Union.

This is of course, the long-term and declared aim of the BJP and RSS. Already in his August 15 Independence Day speech, Modi has called for simultaneous central and provincial polls i.e., “one nation, one poll,” as well as affirming that one nation with one creed is the foundation for building a strong India.

In Former Jammu and Kashmir

Modi has said that statehood could be restored to Jammu and Kashmir in time, and polls for the new legislature will be held. The plan, however, is this: A Delimitation Commission has already been set up to reorganize constituencies and administrative districts/units and will complete its job before elections are held. The aim is to increase the number of constituencies in Hindu-majority Jammu (with a population close to 6 million, of which around 35 percent are Muslims), which has a bigger territory but a smaller overall population than the Valley (which has close to 8 million) — so that the BJP, which has massive support in Jammu but very little in the Valley, can nonetheless obtain an overall majority of seats on its own or with smaller parties outside the bigger Kashmiri ones.

There could also be another legal-political maneuver. Historically, the RSS has always wanted trifurcation and therefore separate statehood for the Jammu region as well. Once this government is confident that it can secure a majority in the new legislature for the Union Territory of Jammu and Kashmir, this could provide the legal path to a further bifurcation whereby Jammu gets statehood while Kashmir remains a UT with maximalist forms of political-military control, to be enduringly exercised over it by the center.

The Modi government took the unique step of both bifurcating and then demoting both parts of a former unified state to UT status, but also ensuring that one part can have a representative legislative body but not the other. At the same time, Modi gives a reassurance — surely more directed at the Hindus of Jammu than at the Muslims who comprise 96 percent of the people in the Valley — that he is concerned about their interests and that some of their special privileges will be restored through reestablishment of statehood.

In the commentaries made so far, negative and positive, about what New Delhi has done, no one has suggested that such a more deep-seated plan is in operation. But it may be wise not to rule out such a possibility, since what has already been done confirms the depths of malevolent manipulation of the law that this government is prepared to take.

Changing administrative units will ghettoize Muslims through concentrating them in greater numbers, so making it easier to monitor and exercise control over them in the future. While removal of 35A is necessary to bring about demographic changes in Jammu and Kashmir, the local BJP party unit in Jammu is worried about outsiders taking over land. So at the right time, after some land is given over to favored capitalists from other states, then, as in a few other Indian states, such land acquisition can take place be only for those having domiciled certificates thus partially restoring local privileges.

In the Valley, the “middle ground” of those who have wanted to remain in India, albeit with much reduced autonomy and with a willingness to collaborate with the powers that be in New Delhi, have been wiped off the political map. Where can they go now? Can they join the separatists, or do they try to collaborate with a government that no longer needs them unless they are willing to become complete puppets and abandon all talk of autonomy?

In the Valley, there will be growing anger and deeper and wider public alienation from the rest of India, especially among the youth. There will very likely be greater recruitment and support for, as well as collaboration with, cross-border insurgent forces — themselves abetted by the Pakistan government. This, and even nonviolent mass actions, will be taken as an excuse by the Indian government and armed forces for the exercise of greater brutality and repression, including the use of the newly amended legislations on “terrorism” to arbitrarily and preemptively arrest, harass, and even torture those deemed “suspects.”

Apart from the Muslim-majority area in Jammu near the Pakistan border, whose representatives were hitherto wary of their transactions with the powerful political forces in both the Valley and Jammu, their identification with different currents in the Valley and the regional forces in the Azad Kashmir part held by Pakistan, which has never experienced the turmoil of Indian-held Kashmir, will increase. As for Ladakh, its population of around 240,000 is itself divided between the Shia Muslims of the Kargil region and the Buddhists of the Leh region, with no love lost between them. The Shias are fearful because they are Muslims but have no real affinity with the predominantly Sunni Muslims in Kashmir or Jammu. The Leh Buddhists are happy with their separate new status as a UT and looking for more sops from the center.

Pakistan and the Rest of India

The BJP has also now decisively altered its relationship with Pakistan. It is an enemy with whom there can be no accommodation except on Indian terms i.e., accepting this new reality. This is the external counterpart to its Hindutva hostility towards Muslims internally. And the anti-Pakistan forces can rally around a much larger section of the Indian population including huge numbers of liberals, mainstream leftists, supporters and leaders of the Congress, and other non-BJP parties who otherwise oppose the BJP. The period when some kind of bilateral “soft border” arrangement, or even some form of “dual guardianship,” of a relatively autonomous Kashmir on both sides of the border, could be put in place is over. The message to the rest of the world is clear: Kashmir is not to appear on any international agenda. It is purely an internal matter brooking no external interference, humanitarian considerations be damned.

Some progressives in Pakistan who want to institutionalize liberal democracy in Pakistan and see a decisive erosion of the political power of the Pakistani military in Modi’s moves in Kashmir. The stalemate, they could say, has ended. Both countries now have swallowed their respective parts of the once-united Jammu and Kashmir province and will have to move towards accepting the new international fait accompli, since surely neither side is stupid enough to risk a major war given the nuclear overhang.

But matters are not so simple. Both the Pakistan military establishment and Islamist forces in the country are not going to take this route. Indeed, Modi’s India, through its earlier strike on Balakot, well into Pakistani territory —– the first time since the nuclear age began that one nuclear power has carried out such a deep penetration, conventional air strike on another nuclear power — has indicated that Pakistan’s so-called nuclear shield will not deter conventional assaults on it by the much stronger Indian forces. Cross-border insurgency action from the Pakistan side provoked this earlier; an attack by a Kashmiri local at Pulwama on Indian soldiers led to the Balakot attack.

To be sure, Pakistan is aware of India’s conventional superiority and has publicly drawn up its own red lines that declare its willingness to use tactical nuclear weapons on Indian troops who enter too far into its territory. India’s nuclear doctrine, however, simply says it reserves the right to retaliate wherever Indian troops are threatened. The latest interpretation of its nuclear “No First Use” doctrine by a former foreign secretary official is that this does not preclude preemptive use if circumstances warrant it.

The real danger is not so much that one side will decide to launch its nuclear weapons, but that the likelihood of cross-border insurgency will rise after the US-Pakistan agreement over Afghanistan frees more Islamist squads to move towards the Indo-Pakistan border areas. Cross-border skirmishes along this border can rise significantly. These can turn into a conventional war, raising the chances of a miscalculated or inadvertent nuclear exchange breaking out. Pakistani efforts to internationalize the issue, short of a threat of nuclear exchange emerging, will not really succeed. India’s weight in the United States’ geopolitical structure of alliances is greater than its ties with Pakistan, though for Washington these are separate relationships serving non-substitutable concerns. China will give some verbal support and supply arms to Pakistan, but nothing more.

In the rest of India, Modi’s move has gained him even greater popularity among the general public with most regional parties, including some of those opposed to the BJP like Delhi’s ruling AAP (Common Man’s Party) hailing it. The mainstream electoral left of the CPM, CPI, and an aboveground Maoist party, the CPI-ML (Liberation) have called for the restoration of the previous status quo, even willing perhaps to call for extending greater autonomy. The Congress party is divided. Some leaders are calling to restore the previous status quo, while others have publicly approved the final outcome but criticized the legal means used to achieve it as well as the temporary clampdown in the Valley, but nothing else. Many legitimate fears have been expressed about the assault on Indian federalism, the momentum that is being generated for the anti-democratic means that are being and will be used in future pursuit of the Hindutva agenda.

But when it comes to the question of preserving “national security” there is no dissent: Kashmir must remain a part of India.

The Central Issue

Herein lies the basic dilemma. Everything hinges on the evolving situation in Kashmir over the coming decades and generations. For over seventy years the Kashmiri people have repeatedly expressed their desire to retain their distinct status. All want demilitarization but have disagreed along three separate lines as to the way forward. Those political parties, namely, the National Conference (NC) with its rival the Peoples Democratic Party (PDP), want to remain in India and practice patronage-based clientelism, and therefore have been content with playing the game of power-brokering and deal-making with New Delhi, electoral competition, and unprincipled alliances with each other and with the local Congress party unit in Jammu and Kashmir. The PDP even forged a coalition government with Modi’s BJP before the latter withdrew its support and imposed President’s Rule.

Then there are the parties and groups that espouse some form of separatism, which are hardly involved in underground struggle but are kept under much tighter central control and frequently harassed, and their leaders detained. The underground movement has been mainly responsible for organizing nonviolent mass mobilizations and engaging in retaliatory violence against the brutality of the occupation. This is primarily waged by local Kashmiris, young and old.

Although there is certainly an influx of various insurgent groups from across the border, it is a myth that it is these militants (or “terrorists,” as they are called in officialese), are the reason for such a heavy presence of the Indian armed forces. By New Delhi’s own account, these “terrorists,” homegrown or Pakistani, are today said to number a few hundred — many fewer than the couple of thousands said to have been there at the peak of militancy in the 1990s. In neither case can it be plausibly argued that you need 750,000 and more armed personnel to keep such numbers in check.

This ending of autonomy is not going to be reversed by any future Indian government. Yet given the way Kashmiris have for so long behaved vis-a-vis the longstanding Indian occupation, there is no reason to doubt that their resistance will continue and that many more will not want to be a part of the Indian Union. If an ever-increasing majority in the Valley, perhaps joined by more and more Muslims in Jammu, move in this direction, what can be expected? Certainly, this will lead to an enduring and even more brutal military repression by the BJP/RSS. Should the resistance continue and deepen, more people in Pakistan, in the wider Muslim world, and perhaps elsewhere, will begin to stir and lend more material and political support to it. But what of progressives in India who are already horrified by what the Modi government has done and what it is likely to do in the future?

If the middle ground in Kashmir has been destroyed, what of those in the rest of India who are opposed to Indian brutality in Kashmir but are not willing to respect the right of the Kashmiris to determine their own political future up to and including secession? The classic Leninist and truly democratic formula has always been that an oppressed community like the Kashmiris must have the right to decide their own political future which in this case could be a) fighting for greater autonomy within India; b) independence; or c) merger with Pakistan. No prominent liberal intellectual or even any leader of the mainstream Communist parties after August 5 has publicly taken such a stand. Powerful and legitimate criticisms of what has been done abound as do sound extrapolations of the democratic dangers that are now arising from it. But the territorial unity of India remains effectively “sacred” for them.

The point, however, is that one can disagree with the manner in which Kashmiris might want to exercise that right, e.g., by wanting independence or even joining with Pakistan; and even seek to persuade them not to choose that particular path and remain to fight for a democratic India. But the rock-bottom democratic principle is respecting their right to choose.

This means categorically opposing all efforts by the Indian government to forcibly prevent them from exercising that choice in the future. The best thing would be for separate, binding referendums to be held in Ladakh, in Jammu, and in the Valley reflecting the three choices of being with India, being with Pakistan, or independence. We know that the majority in the first two regions would choose to remain and the third to be separate. We also know that no such referendums will ever be offered.

What then is the point of taking such a stand? It is simply that today and, in the future, the only truly honest and courageous way to show solidarity with the suffering of the Kashmiri people is to declare this. To only oppose all forms of force that might or will be used against Kashmiris is not enough, since the main end for which that force is being used — to prevent territorial separation — is something that one silently accepts as a state of affairs that must never be allowed to happen, no matter what the principal sufferers themselves may wish to choose.

In the coming months and years, there will be many occasions on which all kinds of non-Kashmiri Indian progressives will have to come together to oppose governmental violence against Kashmiris. Our different preferences for what we consider to be the best future for Kashmiris must not prevent this practical unity in struggle. At the same time, we must never be silent accomplices with the powers that would seek to deny the oppressed people of Kashmir the right not only to choose but, more importantly, to freely pursue their goal of collective self-determination.