Since the days of Syama Prasad Mookerjee, proponents of Hindutva had maintained that the special status accorded to Kashmir was an obstacle to its full integration into India. For decades, Hindutva supporters raised this slogan, and finally, on 5 August 2019, the BJP government fulfilled their long-cherished objective by abruptly abrogating Article 370 of the Constitution, thereby ending Kashmir’s special status. The BJP government declared at the time that Kashmir’s problems would now be resolved, terrorism would come to an end, and the region would become an integral part of India in the truest sense. Even before this measure was taken, Governor’s Rule had been imposed there, meaning that whatever democratic rights and freedoms existed had already been extinguished.
Along with the abrogation of Article 370, the Modi government also dismembered Kashmir. Geographically, the largest part of the former state, Ladakh, was separated and made into a distinct Union Territory. The statehood of Jammu and Kashmir itself was abolished, and it too was converted into a Union Territory, to be governed directly from New Delhi. Kashmir’s special and local laws were repealed, and all Central laws were imposed there forthwith. Since 1990, the armed forces in Kashmir had already enjoyed extraordinary powers under the Armed Forces (Special Powers) Act (AFSPA), under which soldiers are not ordinarily held accountable for acts of excess, abuse, killing, or rape. Following the abrogation of Article 370, the Governor’s writ came to prevail directly.
People began to be deprived of their lands; individuals were dismissed from government service on the flimsiest of pretexts; the number of imprisoned Kashmiris continued to grow; and the media was reduced to silence. The dictatorship has now reached such a stage that homes and libraries throughout Kashmir region are being searched book by book. If any publication contains, in the government’s view, any ‘objectionable’ material, it is confiscated and burned, while the person found in possession of the book is punished as well. This constitutes a clear violation of Indian law, because under Section 98 of the Bharatiya Nyaya Sanhita, the Central or a State Government alone may prohibit a specified book, and only thereafter may the police seize that particular publication. In Kashmir, however, books are being confiscated indiscriminately from homes and libraries without any prior official notification banning any specific book.
It has now been seven years since the abrogation of Article 370. Oppression and brutality have reached their zenith, yet, owing to stringent restrictions upon the media, these realities go unreported. Has the abrogation of Article 370 – or, in other words, the termination of the State’s autonomy – improved the situation in Kashmir, and have the Kashmiris become integrated into the ‘national mainstream’? The answer is an unequivocal negative. Indeed, the truth is that conditions are now worse than they were before 2019. Despite all the restrictions, militancy continues, public demonstrations persist, thousands of people have remained imprisoned for years, and there is a complete prohibition upon freedom of speech and expression.
The fact of the matter is that the abrogation of Article 370 was, in itself, an unconstitutional and unlawful measure. Under the very provisions of that Article (370), it could be abrogated only if the Legislative Assembly of Jammu and Kashmir recommended its repeal by a majority. Nothing of the sort occurred. On the contrary, even before the abrogation of the Article, the Jammu and Kashmir Legislative Assembly had already been dissolved and Governor’s Rule had been imposed. It was the representative of the Central Government, the Governor, who wrote recommending that Article 370 be abrogated. That recommendation was improper and unlawful. Not only this, but the Governor made that recommendation under pressure from the Union Government, as the then Governor, Satya Pal Malik, himself disclosed subsequently.
Article 370 is that provision of our Constitution which, in one form or another, has been part of the entire Kashmir question from the very first day of our annexation of Kashmir. Maharaja Hari Singh signed the Instrument of Accession on 26 October 1947, and on the following day then Governor-General, Lord Mountbatten, accepted it. Under its terms, the Maharaja transferred to India only three powers, namely Defence, External Affairs, and Communications. In other words, the accession was conditional and extended only to those three subjects, while Kashmir remained internally autonomous.
In his reply to the letter of accession, the Governor-General wrote to Maharaja Hari Singh on 27 October 1947 that, once normal conditions had been restored, the question of the State’s accession would be decided by ascertaining the will of the people through a referendum. Thus, India promised, from the very first day, that a referendum would be held, and acknowledged that the accession was not, in itself, sufficient but that the wishes of the people would have to be ascertained. The holding of a referendum was considered necessary for the further reason that the legal opinion of the Governments of Britain and the United States was that the Instrument of Accession alone was insufficient and that, in view of the existing Standstill Agreement between Kashmir and both India and Pakistan, the Maharaja’s accession was invalid.
India itself took the Kashmir dispute to the United Nations in January 1948 and, there, pledged that a referendum would be held once conditions had been restored to normal. That pledge, however, was never fulfilled. At the very least, India ought to have conducted a referendum in the territory under its own control in order to demonstrate to the world that it had honoured its commitment.
It was against this background that India, while respecting Kashmir’s special status, incorporated Article 370 into the Constitution of India, under which Jammu and Kashmir was granted autonomy in its internal affairs. Comparable constitutional exceptions have also been accorded to certain other Indian states. This constitutional provision further stipulated that it could be abrogated only if the Legislative Assembly of Jammu and Kashmir, by majority vote, requested its repeal. It does not behove a state, having made a constitutional commitment, to unilaterally repudiate it thereafter.
Sheikh Abdullah, who had played the central role in securing Kashmir’s accession to India, was appointed Prime Minister of Jammu and Kashmir on 5 March 1948. Before long, however, the Indian government came to regard his loyalty as suspect, for he had begun speaking out about violations of the terms of the Instrument of Accession. Consequently, on 8 August 1953, he was dismissed by the Sadr-i-Riyasat, Karan Singh. The very next day he was arrested and remained imprisoned for the following eleven years. On 8 April 1964, after all charges against him had been withdrawn, Sheikh Abdullah was released. Following Jawaharlal Nehru’s death in May 1964, he was arrested once again and was imprisoned from 1965 to 1968. Thereafter, during 1971–1972, he was exiled from Kashmir. Following his dismissal, the UnionGovernment began installing its own preferred individuals as Chief Ministers, electoral malpractice became rampant, and, in effect, the Union Ministry of Home Affairs began administering Kashmir directly.
The extent of central interference may be gauged from the fact that the National Conference won 70 of the 75 seats in the 1964 elections, yet secured only 8 seats in the 1967 elections and not a single seat in 1972, despite the fact that Sheikh Abdullah remained Kashmir’s pre-eminent political leader and, until then, the National Conference had had no real rival in the Valley. The truth is that over the past seven decades, long before 2019, Kashmir’s ‘autonomy’ had already been gradually hollowed out. No Indian state has ever been deprived of its rights and privileges in this manner.
Following the Indira–Sheikh Abdullah Accord of 1975, Sheikh Abdullah assumed office as Chief Minister under the Constitution of India and remained in that position until 1982. Prior to this, his title had been that of Prime Minister. After him, his son, Farooq Abdullah, became Chief Minister.
Conditions in Kashmir deteriorated sharply after 1987, when the central government openly manipulated the elections and defeated candidates who had in fact won, including some who, having lost faith in the democratic process, subsequently took up arms. Since then, normalcy has never truly returned to Kashmir. The region has, in effect, remained under a perpetual state of curfew. In the face of the military, not only the general public but even the police have little authority.
In 1990, AFSPA was enforced in Kashmir, and it has remained in force ever since. In other words, martial law has effectively prevailed there, under which the armed forces enjoy sweeping powers. Even in grievous incidents such as the mass sexual assault at KunanPoshpora and the Chittisinghpora massacre, no justice has been delivered. Military checkpoints are found everywhere, in both towns and villages. The army may detain whomever it chooses.
In these circumstances, on 5 August 2019, Article 370 was abruptly abrogated, extinguishing whatever limited autonomy still remained. Since then, the region has been under the direct rule of the Union Government through the Lieutenant Governor. Restrictions have become even more severe. Freedom of the press has been completely curtailed, with the result that neither accurate news is published within the region nor does reliable information emerge from it.
Seven years after the promise was made, and despite the assurances given by the Union Government to the Supreme Court, the statehood of Jammu and Kashmir has still not been restored. This is the first instance in the history of India in which a state has been reduced to the status of a Union Territory. Thousands of people have languished in prisons for years. Such is the depth of communal hostility that when a comparatively large number of Muslims secured admission to a medical college in Jammu, the course itself was discontinued. Following the horrific abduction, rape, and murder of the young Asifa, a section of the population celebrated the crime. Nearly ten thousand people in Kashmir remain ‘disappeared’ to this day. Scattered across the region are numerous ‘unmarked graves’, about whose occupants nothing can be established with certainty. There are also thousands of ‘half-widows’, whose husbands were forcibly disappeared years ago, while the authorities do not even inform them what became of their spouses. On the slightest suspicion, homes are demolished with bulldozers.
This long and dark night must come to an end. To remedy the situation, it is essential that Article 370 be restored to the Constitution of India. The restoration of statehood to Jammu and Kashmir will be truly meaningful only after the reinstatement of Article 370, and only then can the confidence of the people of the region be restored. India should deal with Kashmir in the same manner as it deals with any other Indian state.
[The author is editor, The Milli Gazette and a former chairman, Delhi Minority Commission.]