Image Credit: Andrea Schieber/Dal (lake) and the Shikaras – Srinagar, Kashmir, India/ Flickr ; Licence: CC BY- NC- ND-2.0.

Written by Mohamad Junaid.

In a unilateral move on 5 August 2019, the Indian government decided to abrogate Articles 370 and 35A of the Indian constitution, two historical legal provisions that had been negotiated by Indian and Kashmiri government representatives in the early 1950s as the constitutional link between India and Kashmir.

The provisions had no bearing on Kashmir as an unresolved international dispute subject to United Nations (UN) resolutions (especially UN Security Council resolution 47 of 1948, which called for a plebiscite to determine Kashmir’s final status). Nevertheless, Articles 370 and 35A allowed Kashmiris to retain a sense of their distinct identity as a people. Article 370 symbolised Kashmir’s ‘autonomous status’, while 35A allowed only permanent residents of Kashmir the right to buy land in Kashmir and protected the demographically and ecologically sensitive region against Indian settlements.

The international media have belatedly woken up to the humanitarian and political crisis unfolding in Kashmir

Historically, the Indian state has neither respected the sanctity of UN resolutions on Kashmir nor its own agreements with Kashmiri representatives. Before revoking the articles, the Indian government arbitrarily changed the language of the revocation process, replacing ‘constituent assembly’ with ‘legislative assembly’. The Article could be altered only in congruence with Kashmir’s constituent assembly, which ceased to exist in 1956 making the articles permanent. India also conveniently ignored the fact that in November 2018 it had arbitrarily dissolved Kashmir’s legislative assembly, giving full power to its own appointed governor.

In any event, Article 370 reflected the limited sovereignty that India could exercise over Kashmir.

Under the influence of Hindu nationalists, who had begun agitating in India for Kashmir to be ‘fully integrated’ into India, the Indian government then passed a series of ‘Presidential Orders’ to whittle Article 370 down and turn it into an empty shell. Anyone in Kashmir who raised objections was imprisoned or exiled to the Pakistan- controlled part of Kashmir.

Among the first to go was Sheikh Abdullah, Kashmir’s prime minister and India’s closest ally, who was removed from office and arrested in 1953. In seeking to appease India, Abdullah had even averted his eyes from the ethnic cleansing of Muslims in the state’s southern province of Jammu between late 1947 and the middle of 1948, which dramatically changed the Muslim-majority Jammu city to a Hindu-majority one.

However, the call for full ‘integration’ meant the Hindu nationalists had their eyes firmly set on the Kashmir Valley as well, which at last caused Abdullah to question his wisdom in endorsing the accession to India. But by then it was too late for Abdullah, and he would spend the next decade in prison.

From 1953 to 1987, the Indian government regularly rigged elections so as to place pliable pro-India loyalist Kashmiris in the legislative assembly. These legislators in turn gladly consented to apply Indian laws to Kashmir, by drafting for the state of Jammu and Kashmir laws similar to the ones passed by the Indian parliament. In essence, the legislative assembly became a place where Indian laws were stamped without much questioning. This rubber-stamp authority degraded the value of the legislative assembly in the eyes of Kashmiris, whose confidence in elections had already been eroded by blatant rigging and handpicking of chosen candidates.

From 1990 onwards, when India launched a counter-insurgency campaign in Kashmir that continues to this day, Kashmir came to resemble a military occupation. Kashmir was governed according to the requirements of India’s ‘national security’; with its administration centred on counter-insurgency measures and the basic rights of Kashmiris kept in perpetual abeyance.

Many of the Indian state’s authoritarian actions in Kashmir were carried out under the governments in Delhi led by the nominally secular Congress Party. The Congress Party’s main motivation was its centralising nationalist tendencies. It recognised a pallid form of federalism, where only limited powers remained with the regional governments and these governments could be dismissed as the Congress Party bosses in Delhi chose.

This was most often the case in Kashmir, where the Congress Party’s particularly interventionist approach arose from its mistrust of Kashmir’s Muslim majority – even though this aspect was sometimes understated or even hidden behind superficial nods to secularism. Nonetheless, Congress didn’t try to completely abrogate Article 370, knowing that the article had no real content left in it and in truth had become a conduit for direct control over Kashmir.

For the current BJP-led government, there is a different motivation behind the revocation of Articles 370 and 35A. The BJP’s core ideology is based on a Hindu supremacist vision which gives primacy to ‘Hindu interests’ and demands that followers of the so-called ‘non-Indian religions’ in India continuously prove their patriotism in word and deed. Turned especially against South Asian Muslims, who are regarded as the progeny of the pre-colonial Muslim rulers of the subcontinent, the BJP and its mothership, the Rashtriya Swayamsevak Sangh (RSS) – which is the world’s largest right-wing paramilitary organisation – have long cultivated among Hindus a sense of aggrieved nationalism.

They believe that Muslims, from the medieval Mughal emperors to the present-day Muslims living in slums, have ‘held back’ the Hindu nation. As such, the BJP sees its actions against Muslims – be it lynching Indian Muslims for eating beef, declaring millions of Muslims in Assam as illegal foreigners, sending military planes into Pakistan, or humiliating Kashmiris under military occupation – as a victory for India’s Hindus and as restoration of ‘Hindu pride’.

This is why revocation of Articles 370 and 35A has been widely celebrated in India as a victory over Kashmiri Muslims. Many BJP leaders have told people at rallies across north India that they can now go and marry Kashmiri women and settle in Kashmir, or bring Kashmiri women back with them. On social media, Hindu men have been uploading videos of themselves dancing while singing songs that objectify Kashmiri women as some sort of war plunder. BJP leaders claim that with Article 370 gone, ‘terrorism’ will finally be defeated. Within Hindu nationalist wordplay, ‘terrorist’ stands for all Kashmiri Muslims, especially those who demand the right to self-determination.

This reaction was neither spontaneous nor unexpected. In fact, Indian Prime Minister Narendra Modi and his extremist Home Minister, Amit Shah, seemed to want precisely this interpretation of the government’s actions. By ignoring the process of seeking consent even from Kashmir’s legislative assembly, whose members are pro-India loyalists, the Indian government was deliberately playing into the trope of ‘conquest’.

Indeed, one day before the act of revocation, the entire population of eight million Kashmiris was placed under a military siege. All communication channels were blocked to prevent Kashmiris from voicing any dissent. Fear and confusion had already been sown deliberately through official-looking documents that had been circulating for days before the siege began. The confusion was intended to prevent people from preparing themselves for the siege or organising protests against it.

In a military sweep of the region, any Kashmiri who was perceived as having leadership tendencies was arrested and flown away to jails in northern India. It is estimated that close to 4,000 Kashmiris have been arrested since 5 August, adding to the thousands already in Indian jails. Across Kashmir, young boys are detained on a nightly basis, brutalised and injured. Women have been threatened with rape.

Even those Kashmiri politicians who did all that was demanded to prove their loyalty towards India have been detained, including members of the dissolved legislative assembly.

For the people of Kashmir, revocation of Article 35A is even more disastrous than Article 370. The latter had already been reduced to an empty signifier, mostly used by Hindu nationalists to claim that it gave Kashmir ‘special status’, despite the actual reality of Kashmir being subject to a military occupation.

Article 35A, however, embodied a provision that originated in a pre-1947 Kashmiri Hindu slogan of ‘Kashmir for Kashmiris.’ The Hindus had demanded that the Dogra ruler of Kashmir not allow non-state residents to settle in Kashmir permanently or claim government employment. At the time, Kashmiri Muslim masses– subjugated through feudalism and deliberately kept uneducated – were no competition for the tiny but influential Kashmiri Hindu community in government posts. This provision continued after 1947 when Kashmir came under Indian rule. Article 35A gave the legislative assembly the power to determine ‘permanent resident’ status in Kashmir. It was akin to a government determining citizenship requirements.

Along with the right to buy land, a permanent resident status granted the people of the state, including Kashmir’s Muslims and Pandits, Jammu’s Hindus and Muslims and Ladakh’s Buddhists and Muslims, benefits such as access to government employment and scholarships. And even though the Indian government claimed that Article 35A was discriminatory towards Kashmiri women who married outside Kashmir, the provision in fact enabled these women and their children to inherit and buy immovable property in Kashmir; only their husbands could not claim such inheritance.

Kashmiris have long feared that if these protections were to go, they would stand no chance against a populous country like India allowing its people to settle in Kashmir. If such a thing were to happen it would not only lead to a demographic change – practically removing the basis of the Kashmiris’ demand for self-determination – but it would also make Kashmiris a minority in their homeland. -. Today, with these provisions removed, the gates have been opened for precisely such a demographic change to occur, which has been a long-standing demand of Hindu nationalists in India.

Opinion on the reasons and consequences of India’s move are divided. On the less jingoistic right, Indian commentary has accepted Prime Minister Modi’s public statements that removing the articles will bring ‘development’ and ‘investment’ to Kashmir and end ‘terrorism’ in the region.

These are unsubstantiated claims, however. First, there was nothing to prevent investment in the region previously. The reason private investment was limited was due to the military occupation which kept the region in a constant state of uncertainty. Nonetheless, many Indian private entities have long been operating in Kashmir. They could even acquire land based on renewable, ninety-nine-year leases.

The real issue is a public investment. While the Indian government collects its dues from the Kashmiri population, barely anything returns in the form of infrastructural development. A major portion of fiscal revenue is spent on ‘security’. And yet, despite all the obstructions that military occupation places on daily life in Kashmir, on some key human development indices, Kashmir is ahead of many Indian states ruled by Modi’s own party.

It is also unclear how opening up Kashmir for Indian settlement will end ‘terrorism’, which is Modi’s shorthand for the Kashmiri demand for independence. If anything, these moves make it amply clear to Kashmiris that they have no future as a people if Kashmir remains under Indian rule.

On the liberal left, Indian commentary has been focused on India itself. At best, these commentators see the revocation order as an assault on Indian federalism and on the Indian constitution. Most, though, are worried about India’s image abroad. In much of this commentary, there is very little concern for the grim future that lies ahead for Kashmiris.

Beyond India, the international media have belatedly woken up to the humanitarian and political crisis unfolding in Kashmir. This has prompted public officials in various Western governments to issue statements calling for an end to the blockade in Kashmir. But such calls amount to mere lip service, given India’s place within the West’s strategic calculations as a potential bulwark against China and as a market for exports.

For the eight million Kashmiris currently cut off from the world and their five million fellow Kashmiris in the global diaspora, this is a moment of reckoning. At the time of writing, Kashmir continues to remain under siege a month and a half after Articles 370 and 35A were revoked. The world has yet to hear what Kashmiris themselves think about this decision.

Many close observers expect Kashmir to erupt in an explosive protest once the military siege is eased. That may well turn out to be true, but India has fundamentally altered the ground in Kashmir, especially by removing the pro-Indian political buffer. The tightly controlled, pressurised status quo in Kashmir has changed, and the state as it existed is no more.

The new state will have no reason to listen to or talk to Kashmiris, and those Kashmiris who warned about the settler-colonial ambitions of Indian nationalists will be vindicated. It is the pace at which those ambitions are implemented which will determine whether Kashmir’s resistance follows an armed route, leading potentially to wider India-Pakistan conflagration in the region, or whether Kashmiris respond in the form of total civil disobedience. Whatever the case, one can be sure that the Kashmiri response will be long drawn out and that Kashmiri resistance in the future will be very different to what the Indian state has known until now.

Mohamad Junaid is an Assistant Professor of Anthropology at the Massachusetts College of Liberal Arts. He tweets @mjunaidr

*Articles published by The Asia Dialogue represent the views of the author(s) and not necessarily those of The Asia Dialogue or affiliated institutions

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