The INSAF Bulletin is published typically at the beginning of the month, but given the unrest in Kashmir that has blindsided many of us and represents a huge challenge to Indian democracy as well as prospects for peace in South Asia, we felt it appropriate to bring out a special issue on the topic. The articles in this bulletin pertain exclusively to the Kashmir problem, which was triggered by a unilateral and undemocratic action by the BJP government announced in Parliament by Home Minister Amit Shah on August 5, 2019. These actions included stripping Jammu and Kashmir of statehood, cutting internet communication, mobile and landline telephones across the state, abolishing article 370 that granted protection to Kashmiris, ratcheting up police and paramilitary forces in the region and arresting a wide swath of elected politicians who represented the population.


Can an elected government, even if it holds a comfortable majority in Parliament, simply decide one day to jettison key clauses of the Constitution under which it wields power and alter the federal basis of India’s polity? This is the question India’s Supreme Court is likely to have to answer following the unprecedented move by the BJP government to dissolve the very basis of J&K’s statehood and consign Article 370 along with other features of the Indian constitution that gave J&K a special status to the dustbin.


For many decades, J&K, in particular Kashmir, has been perhaps the most undemocratically ruled state in the country but certain constitutional norms of governance continued to be observed. The fact that J&K is a Muslim-majority area has long made it a red rag to the Hindutva bull; the Hindu right-wing has clamored for several decades for the abolition of features such as Article 370 that historically formed the legal basis under which J&K signed the instrument of accession to the Indian Union. Under the original conditions of accession, New Delhi was only allotted control of defense, communications, and finance. All other matters were the responsibility of the state legislature. Although J&K’s constitutional autonomy was gradually whittled down over the last 60-odd years, certain core provisions remained. Now, literally overnight, without public discussion and in a manner typical of a police state, the Modi-Shah regime not only removed Article 370 it scrapped J&K’s statehood and partitioned the state into two smaller Bantustans that would be ruled from Delhi by unelected bureaucrats.


Much was made by Home Minister Shah that abolition of Article 370, whose various features, among others, prohibited outsiders from buying land or property in J&K, would lead to greater investment and development and a closer integration of J&K with the rest of India. The hypocrisy of these remarks could not be more nauseating. The state of Himachal Pradesh, for example, ruled, ironically, by a BJP state government, does not permit outsiders, i.e. those who are not from Himachal or do not possess Himachal ancestry, to buy land or property in the state.


This entire episode typifies the worst features of majoritarian rule that India is now experiencing after the victory of the BJP in May 2019. Just because it has a majority in the Lok Sabha and can bribe or otherwise browbeat smaller party legislators in the Rajya Sabha, the Modi regime figures it can ride roughshod over the concerns and wishes of the inhabitants of smaller states and bend them to its will. More substantively, the clandestine manner in which a legal-constitutional step was taken to bring about a major change in the nation’s polity suggests not only its undemocratic nature but also the police-state dictatorial functioning of the Modi-Shah regime.


A few days before Shah announced the dissolution of the state in Parliament, the BJP regime put in place a wholesale repression of the democratic rights of the people of Kashmir. Thousands of additional military and paramilitary forces were inducted in the state, tourists ordered to leave, curfew was imposed, freedom of speech and assembly curbed by imposing Section 144, access to the internet and mobile phones was stopped, and all prominent political leaders in the state placed under arrest. A vague bulletin claiming intelligence inputs of imminent terrorist threats was offered as justification for these actions that essentially turned Kashmir into a mass jail for its inhabitants. Clearly, BJP was afraid of the mass protests its policy was and is very likely to provoke.


Meanwhile, the Supreme Court will likely have to rule on the constitutionality of Shah’s announcement of the abrogation of 370. As recently as 2016, Justice Rohinton Nariman ruled that Art 370 could not be removed without taking into account the wishes of the state’s constituent assembly. Whether the current Supreme Court can uphold and re-affirm Justice Nariman’s ruling will be a defining test of the fairness and credibility of India’s constitutional and legal system.

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