August 5th, 2019 marked a watershed moment in Indian history. The Modi Administration took steps to scrap Article 370 and 35A — that afforded special privileges and relative self-autonomy to the state of Jammu and Kashmir (J&K).

The core of the issue is the constitutionality, ethicality and morality of the move. Legal expert opinion remains split; a testament to the unchartered territory the Indian government finds themselves in. Beyond the legality, to develop some semblance of an opinion one must examine the origin and purpose of Article 370; how it has been shaped by political affairs of the region and the repercussions of the government’s decision.

The Kashmir issue began as a dispute over territorial claims, with India possessing legitimate authority since October 26th, 1947. Initially, the Maharaja of J&K chose independence, but by September 1947, J&K’s sovereignty was attacked by Pakistani tribal militias. Maharaja Hari Singh knew that the state would not be able to defend itself independently, thus he sought assistance from India and the signing of the Instrument of Accession (IOA) was the implicit condition for protection. Many would identify the undemocratic nature of accession as undermining India’s claim, but such scrutiny would unravel almost all nation-states born of decolonisation, until we’ve devolved to tribalistic loyalties. Even if the plebiscite — offered under UN’s Resolution 47 — were to have been conducted, the only choices were to accede to Pakistan or India.

After accession, in 1949, J&K representatives approached the Indian Constituent Assembly (Constitution-creating body) and requested that only provisions of the Constitution that corresponded to the IOA be applied to them. This led to the creation of Article 370, which limited the jurisdiction of the State to matters of communications, ancillary, defence and external affairs. The granting of special privileges to J&K alone was a complex political lubricant during turbulent nation-uniting times — an attempt to reconcile the fundamentally different aims of J&K (independence) and the State (integration). Most crucially, amendment or abrogation of Article 370 required the J&K Constituent Assembly’s consent.

But Article 370 has remained a point of contention, rather than reconciliation, and the political landscape of J&K over the last 70+ years informs us of the continual souring of relations and diverging of aims.

In a bid to hasten integration, the Indian State hindered democratic functioning in J&K. Article 370 was hollowed out by upholding dummy political classes, utilising them to engage in ‘coercive centralisation’ and curbing non-violent means of expressing dissent. As pointed out by Mridu Rai, ‘Bakshi was ousted in 1963, succeeded by G. M. Sadiq (1964–1971) who was in turn ejected and replaced by S. M. Qasim (1971–1975)’. It is crucial to remember generations of Kashmiri political classes’ complicity with the Indian government. Of course, as the more powerful body, the Indian State must shoulder much of the blame in the matter. The most notable instance of the Indian State’s interference and the local government’s complicity is the 1987 Election in J&K, widely accepted as rigged. The major disparity in polling and actual results was pinned down to an ‘election cartel’ formed by the coalition of National Conference and the Congress Party.

The heightened level of interference was justified by the ever-present Pakistani meddling in the region, bearing in mind that there have been three Indo-Pakistani wars fought involving Kashmir. Liberation of Kashmiris has remained a ruse for Pakistan’s decades-long meddling. The disillusionment with the electoral process only drove some Kashmiris towards Pakistan-occupied Kashmir, where they were provided with equipment and training to conduct an armed struggle.

The more Article 370 was hollowed out by the Indian State due to their prioritisation of border threats, the more strongly Kashmiris clung to it as part of their identity. The acceptance of this conflation of Article 370 and Kashmiri identity has only served as fodder for identity politics. It has prevented us from asking the tough question of why J&K requires an elevated status and set of privileges distinct from other states, when the constitutional federalism affords uniqueness to Indian states anyway. The unjust manner in which it was diluted over the years has caused  Kashmiris to develop a strange dichotomic lens — the ‘give us privilege or you’re a tyrant!’ view — when what they are owed by India is a reinstating of the democratic process and freedom from the abuses of state power.

One of the final blows to the already fragile relationship between J&K and the Indian State occurred after the implementation of Armed Forces (Special Powers) Act (AFSPA) in 1990. It came into existence in response to the rise in insurgency after the 1987 election and forced displacement of Kashmiri Pandits and other minorities and remains in force until today. The last three decades have seen the state steadily turn J&K into one of the most militarised regions on earth; at least two generations have only ever known the extensive military presence. Multiple international human rights bodies have critiqued the operations of the state under AFSPA and the lack of accountability, as demonstrated by the lack of resolution in the Kunan Poshpora mass-rape allegations of 1991.

Understandably, the conduct of the state in the region needs to be severely critiqued and condemned. Trust is declining, especially after such an authoritarian act. To make matters worse, the lockdown is an attack on the Kashmiri people’s basic rights of civil liberty and the international community must urge the Modi administration to lift the lockdown and reinstate the right to protest without fear of persecution. The Kashmiri people’s mistrust is justified, and it is only when more Indians are critical of the government that we will have some hope of ensuring that injustices are minimised. One could take inspiration from former IAS officer Kannan Gopinathan, who quit service as a stand against the Modi administration’s ‘denial [of] elementary rights within the Valley’.

In the face of such oppression, the rallying cry of self-determination has only strengthened. However, it begs the question: if the misdemeanours of the state are the motivation for independence, then surely a condemnation and subsequent reformation of the state is a viable solution to the Kashmiri grievances? The revocation of Article 370 does not close off the path to reinstatement of the political rights, as understood within the framework of the Indian federal system. It must not be granted, afforded, given, handed to the Kashmiris by the Indian State but must be returned, repaid, and restored to the land. There needs to be radical change in the nature of the centre’s involvement. The Modi administration’s actions in the region must be viewed with caution and a critical lens.

If the claim is with India, then so is the blame — and responsibility to do right by the Kashmiri people.

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