Abrogation of Article 370: Walking on Thin Ice

Article 370 is an element of identity for the Kashmiri citizens and a carrier of diverse connotations of unity and separatism from the rest of India. The article governs the regal crown of India, the State of Jammu and Kashmir, by providing it a “special status and autonomy”. However, on 5th August 2019, the BJP government abrogated Article 370 and bifurcated J&K into two union territories- Ladakh and J&K. India reverberated with rhetoric speeches over the abrogation and the valley was coerced into absolute lockdown. At such a crucial juncture tension escalated in the lives of people with respect to access to education and legislative processes.

This paper dwells on the societal impact of the abrogation of Article 370 and the constantly evolving social demography and legislative changes that have mystified future pathways for J&K. Further, it elaborates on the ugly scars of communication blockade and the subsequent human rights violations that have shrouded the valley in a veil of fear.

By Shreya Tiwari

Abrogation of Article 370: Walking on Thin Ice

Introduction

In 1947, when British departed from a brutally partitioned India, the state of Jammu and Kashmir was provided a choice to either accede to India or Pakistan; or remain independent. The then Hindu ruler, Maharaja Hari Singh preferred to remain sovereign although widespread resistance was already visible against him in the form of Quit Kashmir movement (The Muslim populace was against Hari Singh and wanted him to secede to Pakistan). In retaliation, Pakistani armed tribesmen infiltrated J&K and occupied strategic territories, currently referred to as Pakistan Occupied Kashmir (POK).

In desperation, the Hindu Maharaja accepted accession to India in return for military aid on the condition that the accession would be settled with the consensus of the residents (Ganguly-1994). India took the issue to UN Security Council which finalized a ceasefire agreement- known as the “Karachi Agreement” between India and Pakistan subject to a plebiscite, once troops were withdrawn from both sides. The idea of plebiscite never materialized as Pakistani troops did not back off from one-third of Kashmir and have remained there ever since calling the region “Azad Kashmir”.

The accession gave India power over Kashmir’s affairs concerning defense, foreign affairs, and communication. Kashmir did become a legal part of India but the territorial differences between Pakistan and India ripped apart Kashmiri citizens and their sense of belongingness. J&K as a part of Union of India is governed by the Indian Constitution. It was clubbed with eight other states under Part B, Schedule 1 but with the exception that the latter were governed under Article 238 but J&K was put under Article 370 (Sharma-1958). Seventy years later, the Article has been revoked and has taken away a lot of special privileges. The path ahead for the valley seems hard with the ongoing lockdown and military occupancy.

Literature Review

Jammu & Kashmir has been seething with turmoil since August 2019 due to the abrogation of Article 370. The essay “The Revocation of Kashmir’s Autonomy: High-Risk Hindutva Politics at Play” by Medha Menon (2021) discusses the historical background of why Article 370 came into being and how its abrogation insists upon the rising Hindu Nationalist Politics at play which represses the voice of the minority. It also dwells on the changing landscape of women’s rights in the valley amidst unrest.

The article “India and the crisis in Kashmir” by Sumit Ganguly (1994) elaborates on how insurgency in J&K emerged through political mobilization and institutional decay. The study also focuses on the stemming of dissent in the form of violence due to excessive subjugation of Kashmiris. However, the article completely ignores the social voices of change and diplomatic tactics employed by local leaders.

“India’s Kashmir conundrum: Before and After the Abrogation of Article 370”, a report by Sameer P. Lalwani discusses the gradual shift in violence rates that stems across the state of J&K pre and post the revocation of Article 370. It provides empirical data to back claims and statements.

The study of Yale School titled “The Myth of Normalcy: Impunity and the Judiciary in Kashmir” provides an insightful overview of the judicial system of Kashmir. The article provides substantiative evidence in support of the human rights violations that occurred as an aftermath of oppressive acts such as the Public Safety Act (PSA) and Armed Forces Special Protection Act (AFSPA). It also comments on how existing laws provide absolute immunity to military forces to commit crimes.

The Wire’s article “J&K Internet Shutdown Based on Dubious Legal Framework” highlights how communication blockades in the valley on grounds of national security has turned out to be a collective punishment which is exploited by authorities. It highlights the unrest in civil societies caused due to this blanket ban. The article captures the situation with a myopic view overlooking the need for such actions and the government’s stance on these issues.

Research Methods

This paper traverses through the contentious issue of the abrogation of Article 370 in Jammu and Kashmir (5th August 2019) in a qualitative and analytical manner and through secondary sources. The main resources used are reports and articles that are well researched and substantiated with relevant evidence. In addition to that, resources are used to back up the claims presented through findings of the Press Freedom Index, Reporters without Borders, and Jammu-Kashmir Coalition of Civil Society.

The research also takes in accounts from verified diaries and memoirs of J&K citizens either in detention or under restrictions. The paper stresses on the societal implications of the abrogation and how the everyday lives of Kashmiris would be affected by it.

Analysis and Discussions

Article 370: Granting Special Autonomy

Article 370 provides Jammu and Kashmir a special status within India and grants special powers to it. The article mandates the state’s separate Constitution, Flag, Election Commission, and the head of the state – “Sadr-i-Riasat” (president) instead of a governor. The state also has its own Criminal Code known as the Ranbir Penal Code and gender discriminatory property rights (Medha-2019). It restricts the law-making power of the Parliament by necessitating the consultation of state government even on matters on the Union and Concurrent lists.

Further, this article endorses the implementation of only two articles of the Indian Constitution in the state, subject to the clause that the President can at any time through a public notification declare Article 370 to be non-operative. The subjugation and forced integration of a Muslim- majority state into India had led to distrust and hostility between Hindus and Muslims inhabiting the valley. Further, the state has been evolving in an environment of exclusivity and separation due to special privileges granted to its citizens regarding property, employment, and residence. These provisions might have imparted autonomy to the state but have formed an atmosphere of apprehension and suspicion in the valley due to the deployment of military forces.

On 5th August 2019, all these provisions ceased to be operative with the abrogation of Article 370 and a full-fledged inclusion of Jammu and Kashmir into India. Though, the abrogation was not unconstitutional as Article 370 was incorporated as a “temporary provision” since its inception (Sharma-2019). However, faulty administrative and bureaucratic decisions had hampered its revocation through the years. The abrogation has led to alienation of J&K’s mainstream political parties like PDP that sought votes on the demand of self-rule. It has further curbed voices of dissent by placing influential leaders under house arrest justified through the Public Safety Act (PSA). The political and social path of J&K continues to waver on dangerously articulated pathways that remain unravelled.

Communication Blockade and Internet Shutdown

The abrogation of Article 370 was followed by a wave of protests and stone-pelting in the valley, compelling the government to cut down all means of communication. The fear of Pakistan’s interference in this controversial issue with India’s restrained conciliatory approach has left the people in the valley in a situation of dangerous uncertainty.

While India in August 2019 was traversing the innovative arenas opened by internet services, Kashmir was thrust into an internet shutdown. The move was justified by the BJP government on grounds centred around security, prevention of violence, and stopping the circulation of false rumours. Subsequently, the government acquired access to track all kinds of digital transactions to keep an eye on money laundering and terrorist funding creating an atmosphere of suspicion and mistrust among the populace. However, the government states that the revocation of Article 370 would integrate Kashmir into India and provide freedom from the existing repressive rights.

Since then, the inhabitants of the state have been in dark with no means of contact with the outside world. Trade and business took a backseat with lockdowns and no means of communication left to propel the economy. Travel restrictions bought the tourism industry to a dead end with people working in the ancillary industries having neither work nor other means of livelihood. Kashmiri citizens coped with low employment rates and almost negligible monetary aid. The common people struggled to make ends meet with no government empathy towards them.

article 370FIGURE 1– The rapidly increasing number of internet shutdowns imposed by government in Jammu
and Kashmir since the revocation of Article 370 (Source- The Hindu’s report 2020).

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FIGURE 2– Unemployment rates (UR) in Jammu and Kashmir rise
consistently with prolonged shutdowns (Source- The Wire’s Report 2020).

Educational institutions have been shut down and the suspension of internet has left no doors of knowledge open to students which is in direct violation of the fundamental right to education. Students have been deprived of the opportunities which would have otherwise opened new vistas for them. Students in the valley particularly girls had to face social stigma and violence from military personnel as well as terrorists to have access to education. The government has promised opening of eminent institutions of higher education once Article 370 was done away with but these promises have yet to take shape. The crippled education system has pushed Kashmiri students into an abyss of unequal opportunities violating the right to equality.

The communication blockade has left Kashmiris in a complete blackout with no relations with the outside world. Kashmiris have been unable to contact their relatives for the past year and remain on tenterhooks about their well-being. Uneasiness and anxiety regarding the situation has increased and is often reflected in violent clashes with the military. These unrests have been tackled by prohibitions on public gatherings and mass arrests of people termed as “miscreants” under the draconian PSA. The implementation of the Unlawful Activities Prevention Act in J&K after the abrogation has led to further detention of 255 non-violent protestors (Duschinski, Bhan-2017).

Though J&K has been grappling to raise its voice with the newly granted right to expression under the Indian Constitution, yet it has been silenced by the imposition of the longest internet shutdown. Kashmiris continue to toil through these communication hardships despite the Supreme Court’s decision in Faheema Shirin RK vs State of Kerala [1] stating the right to internet as a fundamental right.

Abrogation of Article 370 has made Kashmiris entitled to various fundamental rights conferred by the Constitution of India yet these rights are being violated consistently. This situation raises concern in the minds of Kashmiris whether they will be legal Indian citizens in the true sense or just remain a part of India through law and repression. The central government has gone overboard and paid no heed to the proportionality of internet shutdowns in the SC judgement of Bhasin v Union of India [2]. In light of zero implementation “the judgement is compared to weak wi-fi signals- present but unimpactful”. The revocation of Article 370 might have covered Kashmiri citizens under the ambit of the Indian constitution but whether this step empowers them with rights remains to be seen.

Women Rights: Autonomy or Restrictions- the Path Ahead

The abrogation of Article 370 has impacted every Kashmiri citizen, especially the Kashmiri women, and suppressed lower classes. The terrorism and military subjugation of the area has already led to gross human rights violations which are also mirrored in discriminatory laws. The uniformity and equality in women’s rights was one of the structural pillars for justification of the abrogation by the Central government. They consider it to be a harbinger of freedom and autonomy for Kashmiri women. The Centre explains that the revocation will empower women with the right to buy real estate and transfer property even while being married to a non- resident of Jammu and Kashmir (Lalwani, Gayner-2020). The same can now also be inherited by their children and bring them on an equal footing with men in terms of property rights, which was hitherto not possible. This was a discriminatory provision of Article 35A which has become void with the abrogation of Article 370.

The abrogation was welcomed by activists, woman sarpanch’s and Kashmiri Pandit women married in other parts of the country as they had profitable stakes in the valley. However, the status of Kashmiri women living in the valley has not improved and they continue to face repressive brutality. The political attitude and administration have always tried to curb the proactive participation of women in society. Women in the valley have been further repressed by military personnel deployed and are subject to regular physical and sexual violence. Women are now empowered with the freedom of expression but need to live in constant fear of arbitrary state action and being treated as second-class citizens.

Draconian military acts as AFSPA (Armed Forces Special Protection Act) have not only crushed the voices of women but has also made them a victim of sexual assault and violence. AFSPA provides armed forces power to maintain public order in “disturbed areas”, arrest a person without warrant and use reasonable force (Lowenstein-2009). Under the cover of these acts, military personnel commit heinous crimes under blanket impunity. These women describe the whole horrific process as being “widowed by conflict, isolated by arrest” (Zahra, Muzamil-2020).

Women are not the sole victims of discrimination. The Valmiki’s living in J&K had been allowed admission in the valley on the terms of working only as scavengers (Sareen-2020). This was a blatant abuse of their human rights that coerces the Valmiki community into scavenging irrespective of their educational qualifications. Similarly, Gorkhas living in J&K were also denied citizenship with administrative officials harassing them with monetary demands in the absence of Right to Information and Comptroller and Auditor General to deter these wrongdoings.

The centre has doled out a carrot in the guise of increased women and lower-class representation in public spheres promising a pot of gold at the end of the rainbow. Yet, the exclusion of women from the decision-making process is a colonial and top-down approach without any benefits. The Hindu extremist BJP government has positioned itself as a patriarch by enforcing decisions on them and assuming to know the best of their interests. A move motivated for the cause of woman’s rights seems to be materialising differently in reality.

Shift in Demographic Paradigm and Authority of the Government

Article 370 provided sovereignty and special status to India’s sole Muslim majority state. The state framed and mandated its policy and legal framework under Article 370. The valley also ensued a restrictive settlement policy by allowing only Kashmir’s permanent residents to own property. With the abrogation of Article 370, all these provisions have become defunct and J&K has come under the control of the central government’s orders.

The opening up of the valley coupled with the anticipated influx of Hindu populace stirs up fear of being repressed and subjugated in the minds of the Muslim majority population. People in the valley fear that the scars of religious violence in the past might rear their ugly heads again. The general populace considers the revocation a complete takeover of Kashmir through legal framework and military control. Kashmiris find it contradictory to being called legal citizens of India yet not being asked for their consent as subjects of governance.

The inhabitants also fear that in the long run the results of any referendum or plebiscite if implemented would vary drastically due to the settlement of “outsiders”. Human rights activists predict a state of absolute lawlessness by the military due to the center’s over-reaching support (Hussain, 2009). Pro-Pakistan Kashmiri activists foresee the abrogation as a ploy of the Indian government to further tighten the noose over Kashmir and disruptive violence to be the new normal in the valley.

Human rights activists too are apprehensive of the outcomes with the coupled use of AFSPA and nationwide UAPA (Unlawful Activities Prevention Act). Youth politicians are uneasy about raising their voices for the fear of being booked and detained. The harsh treatment of political leaders like Mehbooba Mufti and Omar Abdullah under the pretext of house arrest has silenced many voices of dissent in the valley. Analysts have cited the Srinagar Master Plan 2035 and Special Investment Corridor as foundations of planning the abrogation (Das, 2020). The central government is positive that the opening would open new avenues of development. The valley will undergo a series of transitions in the future though the  preparedness to accept these remains unquestioned.

Conclusion

The status of Jammu and Kashmir has always been disputed both externally and internally. Three nations- India, Pakistan, and China lay claim over its territory resulting in a never-ending series of disturbances and border clashes. Within India, the valley is torn in a tussle of power between state and central governments. All these factors have contributed to a state of unrest and tension in the valley.

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FIGURE 3– Data showing a steady rise in killings from 2019 with the relaxation of stringent
shutdown norms (Source- United States Institute of Peace Report 2020)

The citizens of Jammu and Kashmir are caught in a perpetual flux of violation of human rights, charges, arrests, and violent incidents. Despite this, the state has developed its own identity as a “special state”. However, August 2019 broke through this identity and Jammu Kashmir transited to a Union Territory within India. The populace has not been able to grasp the idea thoroughly with harsh measures being implemented to ensure peace and internal security.

The state now has seen internet shutdown for over a year and isolation from the outside world with no means of communication. The heavily armed military has effectively enforced law and order but they have made Kashmiris feel alienated and second-class citizens in India. Jammu and Kashmir still await to be lifted out of the communication outage and emerge without the tag of a “disturbed area”. The citizens hope to raise their voices as free citizens of India and not be labelled as “terrorists”. The majority Muslim populace is anxious to see the outcomes of being a minority in J&K.

Albeit belated, Jammu and Kashmir will embark on a new journey of evolution without its special status and the question of Kashmiri identity will witness paramount changes in the near future.

References:

  1. Faheema Shirin R.K. v State of Kerala & Ors WP(C). No.19716 OF 2019(L).
  2. Anuradha Bhasin v Union of India WP (C). No. 1031 of 2019.

Bibliography:

  1. Das, Evita. 2020. “Was Kashmir Being Readied for Demographic Change Even Before Article 370 Was Scrapped?” Newslaundry. https://www.newslaundry.com/2020/09/07/was-kashmir-being-readied-for-demographic-change-even-before-article-370-was-scrapped.
  2. Duschinski, Haley, and Mona Bhan. 2017. Introduction: Law Containing Violence: Critical Ethnographies of Occupation and Resistance. Ebook THE JOURNAL OF LEGAL PLURALISM AND UNOFFICIAL LAW. http://file:///C:/Users/DELL/Downloads/Law_Containing_Violence%20(1).pdf.
  3. Ganguly, Sumit, and Kanti Bajpai. "India and the Crisis in Kashmir." Asian Survey 34, no. 5 (1994): 401-16. Accessed April 26, 2021. doi:10.2307/2645054.
  4. Hussain, Syed Rifaat. “Resolving the Kashmir Dispute: Blending Realism with Justice.” The Pakistan Development Review 48, no. 4 (2009): 1007-035. Accessed April 26, 2021. http://www.jstor.org/stable/41261362.
  5. Lowenstein, Allard K. 2009. The Myth of Normalcy: Impunity and The Judiciary In Kashmir. Ebook. International Human Rights Clinic Yale Law School. http://file:///C:/Users/DELL/Downloads/Myth%20of%20Normalcy_Yale%20study%20(1).pdf.
  6. Medha. Report. German Institute of Global and Area Studies (GIGA), 2019. Accessed April 26, 2021. http://www.jstor.org/stable/resrep24808.
  7. Sareen, Pallavi. 2019. “The Constitution Is Allowing the Continued Discrimination Of Valmikis In J&K”. The Wire. https://thewire.in/rights/jammu-and-kashmir-article-35a-valmikis.
  8. Sharma, Bodh Raj. “THE SPECIAL POSITION OF JAMMU AND KASHMIR IN THE INDIAN CONSTITUTION.” The Indian Journal of Political Science 19, no. 3 (1958): 282-90. Accessed April 26, 2021. http://www.jstor.org/stable/42743614.
  9. Sharma, Saurabh. 2019. “Article 370 A Temporary Provision: Subhash Kashyap” The Financial Express. https://www.financialexpress.com/india-news/article-370-a-temporary-provision-amit-shah-35-a-subhash-kashyap/.
  10. Zahra, Masrat, and Peerzada Muzamil. 2020. “In Photos: How Women’s Roles Are Changing in Kashmir’S Conflict”. The New Humanitarian. https://www.thenewhumanitarian.org/photo feature/2020/07/14/Kashmir-military-conflict-violence-women.
  11. The Hindu Report 2020- https://www.thehindu.com/data/data-one-year-since-article-370-revocation-economy-crippled-more-locals-take-up-militancy-and-more/article32273731.ece
  12. The United States Institute of Peace Report 2020-https://www.usip.org/publications/2020/08/indias-kashmir-conundrum-and-after-abrogation-article-370
  13. The Wire Report 2020- https://thewire.in/rights/jammu-kashmir-article-370-violence-killings-militancy-jkccs-report

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