by N Stahiya Moorthy 8 August 2019
Now that both Houses of Parliament have approved the abrogation of Article 370 and 35-A of the Constitution, which had inter alia, a ‘special status’ on the troubled border State of Jammu & Kashmir, it may be time to muse about the future, rather than the hoary past, given to multiple interpretations – some loud and the other, feeble. As official spokesmen have been consistent, it is purely an ‘internal affair’ of the Union, a line that successive Governments at the Centre have been taking since Independence. But in the case of Jammu & Kashmir, there is an ‘external angle’, which surely the Government strategists would have thought about even more closely, for possible fallouts and meaningful retorts, which may or may not stop with the verbal kind.
Barring an embarrasing mention by the Congress Leader of the Opposition, Adhir Ranjhan Chowdhury in the LokSabha, the rest of the domestic political discourse and parliamentary debates have only reiterated the firm Government resolve that Kashmir is only an ‘internal matter’ of the Union. Most members of the international community, starting with the US, have attested the Indian position, though Washington in an equally loaded add-on has also called for ‘peace in the region, concern over human rights and need for discussion with affected communities.’ They are also for real, and the Indian State has responded them squarely, as when flagged by the UNHRC earlier in the year.
Court case likely
As it was to be expected, the Supreme Court has already been moved, challenging the parliamentary resolutions, particularly the procedures adopted. It is more than likely that some of the ‘affected parties’ and ‘affected communities’ too may approach the court. One of the central legal issues could be ‘non-consultation’ with the State Legislature, which was dissolved in November 2018. Leave aside other precedents, the preceding BJP-NDA Government of Prime Minister Vajpayee followed the example while creating three smaller States, namely Jharkhand, Chattisgarh and Uttarakhand in the year 2000.
At the same time, there is the counter-argument that when the State does not have an elected Legislature, the Governor can act in its stead. In the past, if they were Executive decisions, an elected successor-government would have to work with the Governor’s decision from the past. Legislatures have to clear such decisions taken by the Governor in its absence. It is also the spirit behind the Constitution providing for respective Legislatures to clear Ordinances promulgated by Governors (as also the President in the case of the Union) in the interregnum, within six weeks of commencing the session.
This is independent of the other complexities attending on Article 370, especially in terms of providing for a separate Constitution for J&K, and the consequent urgency for the Centre to abrogate the same using the offices of the Governor, citing an internal provision of the said Article. The question may arise if a mere parliamentary resolution, as different from a constitutional amendment, may be required to delete such other constitutional provisions, Articles 370 and 35-A. The Centre should not be surprised if some non-BJP state governments and regional parties moved the Apex Court, arguing the larger issues flowing from such a construct.
Depth and width
Much as it is true that the current decisions and processes in terms of J&K are purely an ‘internal matter’ of the Union and its parts. Yet, one can be sure that the Centre and Prime Minister Narendra Modi’s legal and strategic team would have given much more thought towards the possibility of an ‘external angle’, either existing and hidden, or non-existing, still worthy of exploitation for adversaries of India, in the neighbourhood and elsewhere.
In political terms, the current decision may have sent out an unintended message to Pakistan that J&K as it existed was an ‘internal affair’ of India. Islamabad can then interpret it to act that PoK is thus already a part of Pakistan, de jure, from an international perspective, too. That includes those parts also which Pakistan had illegally given away to China long ago, which is now a part of China’s BRIproject, too. Given the way that the Centre pooh-poohed the UNHRC’s unhelpful findings on ‘human rights’ in J&K earlier in the year and also the confidence gained from the near-unanimous ICJ finding in the matter of ‘Kulbhushan Yadav’, the Indian strategic and legal teams would have be expected to have gone through every possibility flowing from the Centres’ current decision.
Yet, issues of a different kind may remain. It may be hard for most to acknowledge that through the life of the J&K Assembly, no chief minister or no legislature had sought to move any ‘anti-national’ resolution. This was despite anything even remotely resembling secession. Their State and State Assembly had more-than-equal rights at the birth. They wanted even more, nothing wrong in talking and negotiating it. Even the non-Valley population and polity was united in it, but up to a point.
The irony is that the ways and waywardness, particularly of their non-political groups, have ensured through unlawful acts that could be dubbed terrorist and secessionist, has brought their situation to the current passé. While highlighting these parts accurately, so also the ‘forced exit’ of the Pandit families from the Valley long ago, no political leader or editorial writer has mentioned that the more recent spurt in militant activities commenced only under the Mehbooba Mufti-led PDP-BJP Government in the State. It was a risky joint venture that the BJP leadership at the Centre initiated if only to deny the disheartened Congress rival from Elections-2014, without knowing the depth and width of the quicksand on which they were stepping.
In attesting India’s assertion that it was an ‘internal matter’ of the nation, neighbouring Sri Lankan Prime Minister Ranil Wickremesinghe has also referred to the creation of a ‘Buddhist-majority State’of Ladakh for the first time in India. It is another matter that the Sri Lankan PM may not have been briefed about the pending India-China dispute over Ladakh, where Beijing continues to demand the newly-born Indian Union Territory as an extension of ‘Tibet Autonomous Region’.
The irony is striking. In seeking to dismantle an existing ‘religion-centric’ political structure in the sensitive troubled State, has the Modi Centre created another, in the form of Buddhist-majority Ladakh, and unwittingly so, at least in the perception of neighbourhood nation? Generating a ‘non-clan’ approach to ‘nation-building’ has not wholly succeeded thus far. The RSS ideological parent of the ruling BJP at the Centre has also been promoting ‘cultural nationalism’, but it comes with implications. The religious-divide, including in the abrogation of 370 stands out like a sour-thumb, whatever the benefits accruing from the scheme, otherwise.
Once the dust has settled down over the abrogation act, the question of ‘larger India’ or ‘Akhand Bharat’ may start getting a more frequent mention. Independent of the RSS-BJP view, Parliament passed a resolution in the nineties, under Prime Minister P V Narasimha Rao’s care that PoK is very much a part of the Indian Union — implying that it is ‘not negotiable’. There are reasons to believe that the Vajpayee era Track-II did explore the possibilities of converting status quo as a permanent solution to bilateral problems hinging on the ‘K-word’.
Any re-merger or negotiation over the fate of PoK needs to include those areas that Pakistan has given away to China. Home Minister Amit Shah has since declared that both PoK and Aksai Chin are very much a part of Jammu & Kashmir. Less than a year ago, in November 2018, official Chinese maps showed PoK as a part of India. This time round, Chinese spokesman have ‘expressed serious concern’, which the MEA rebutted, quickly and firmly.
India should be even more alive to the theoretical possibility of lumpen elements in the Valley, especially (or their Diaspora groups elsewhere) declaring ‘independence’ (?) after heating up the regional temperatures through acts of terrorism and anti-national insurgency, even more than earlier. India has the right and might to put down such insurgencies, but what if a nation like Pakistan were to grant ‘recognition’ under the international law? For Pakistan, it could well be the ‘Bangladesh moment’, however and wherever it all ends.