Seventy years on, digging a deeper hole in Kashmir

The move by a BJP/RSS front organization to repeal the validity of Article 35-A will lead to adverse consequences are likely to further devastate an already suffering region. Its long-term negative consequences are likely to outlive us all.

The clouds always appear ominous when it comes to Kashmir. But as India marks the 70th year of independence, the clouds look menacing. A little known non-governmental organization, Jammu and Kashmir Study Centre (JKSC), considered a front of the RSS and the BJP has challenged the validity of Article 35-A of the Constitution, which allows the state legislature to regulate the rights of its permanent residents with respect to matters such as property, settlement and employment. In seeking to relitigate Article 35-A, the Sangh Parivar is taking aim at J&K’s special status and Article 370, which ties Muslim-majority Kashmir to the Indian Union.
We need to carefully consider the implications of this push to abrogate J&K’s special status. Its adverse consequences are likely to further devastate an already suffering region. Its long-term negative consequences are likely to outlive us all.
After Maharaja Hari Singh signed the Instrument of Accession in October 1947, the government retained control over only three subjects – foreign affairs, defence and communications. The pre-eminent Kashmiri leader of the time, Sheikh Mohammad Abdullah (and his team) negotiated with the government regarding the scope of J&K’s future relationship with the Union. Pandit Nehru, Sardar Patel, and Gopalaswamy Ayyangar were intimately involved in this process.
In October 1949, the Constituent Assembly adopted Article 370. It restricted Parliament’s legislative powers with respect to J&K to the three aforesaid areas of defence, foreign affairs and communications. But over time, a series of Presidential Orders have substantially eroded J&K’s autonomy. The first presidential order in 1950 divided powers between J&K and the central government. In 1952, the Delhi Agreement ensured that other provisions of the Constitution were extended to J&K. The presidential order of 1954 formalized the extension of these additional provisions to J&K and extended Article 35-A to the state. Jammu and Kashmir’s Constituent Assembly upheld the 1954 Presidential Order and these provisions became part of J&K’s Constitution of 1956.
In the Supreme Court, the JKSC has made the case that the 1954 Presidential Order is invalid because constitutional amendments must follow a separate, defined process under Article 368.
There are some who argue that nullifying the 1954 Presidential Order would void all J&K related Presidential Orders since 1950. This would likely open a debate on J&K’s accession to India. On the other hand, some make the moral argument that if people of J&K can buy property or take up employment in the rest of the country, then why shouldn’t outsiders have the same rights in J&K. Some argue that J&K’s women face discrimination if they marry a non-state subject because their children lose permanent resident status in J&K. This does not apply to men who marry non-state subject women.
I don’t intend to address legal issues here. I will leave that to constitutional scholars. I acknowledge the weight of moral arguments put forward by those who oppose J&K’s special status. But the world is replete with examples, including from our own country, where communities get special protections for sensitive political, cultural, and historical reasons. I have spoken against the specific marriage clause that discriminates against women. With political consensus, I am certain a solution to eliminate this inequity is possible.
But, the main issue that concerns me is the underlying reasons for the current litigation. By understanding this issue, we may yet avert a crisis that is unlikely to end well for India, for J&K, and for our future generations. It should be clear to everyone that the Article 35-A case before the Supreme Court is essentially political.
The abrogation of J&K’s special status is a long-standing goal of the Sangh Parivar and has consistently featured in the BJP’s election manifestos. The belief is that the Muslim-majority nature of J&K lends itself to separatist tendencies. By undoing state subject laws and J&K’s special status, the RSS wants to change the state’s demographic profile. This would lead to permanent integration and assimilation of the population into the Indian mainstream.
This is not a new idea. Other countries have tried this strategy. Most notably, the Chinese Communist Party (CPP) engineered migration of ethnic Hans into Xinjiang (and even Tibet) as a way of “pacifying” these restive regions.
The Chinese example is relevant because, like Kashmiris, Tibetans (5 million) and Uighurs (9 million) are small ethnic minorities. The mainstream Han comprise over 90 per cent of China’s population. To deal with a restive Xinjiang, the CCP engineered large-scale migration of ethnic Han into the region between 1950s-1970s. Han Chinese now comprise 58 percent of Xinjiang’s population. In 1949, Xinjiang’s Han population was only 6 percent.
Repressive policies accompanied the Han migration. The CCP regulated religious freedom, language, school curriculum and employment opportunities to the detriment of ethnic Uighurs. However, after almost seven decades, billions of dollars of investments, a demographic inversion, and its “Strike Hard” policy, Xinjiang remains restive. Over time, extremism has emerged as a threat in a region that was known for moderate Islamic practices. Uighurs remain alienated and an existential fear grips them.
The machinations of the Sangh Parivar in Kashmir are dangerous and founded on majoritarian and even colonialist instincts. Abrogating the already diminished special status of J&K is likely to cause a precipitous deterioration of the conditions in Kashmir. The space for mainstream politics will shrink much further. Those sections of Kashmiri society that believe peace with dignity within the Indian constitution remains a possibility will become even more marginalized than they already are.
Kashmiri youth, angry and deeply alienated, may think they are under siege. Extremism can seem alluring in such circumstances and nobody wants that. The long-standing conflicts in China should be sufficient warning that despite decades of “integrative” policies and even demographic marginalization, indigenous communities resist coercion. I am afraid this conflict will fester even when all of us are long gone and recorded history will tell a tale of how myopic, majoritarian policies unleashed a demon whose destruction we did not live long enough to fully witness.
In all of this, I ask myself one question: how will democratic and diverse India justify an approach that appears inspired by authoritarian China? To this I have no answer.