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Article 370 Dilution and its Implication

By Crowdwisdom | August 28, 2019

After weeks and days of intense speculation about the situation in the Indian state of Jammu and Kashmir, the Modi government finally revealed its cards and in one fell swoop fundamentally transformed India’s relationship with the state. Home Minister Amit Shah announced in the Parliament the dilution of Article 370, which exempted Jammu and Kashmir from the Indian Constitution (except Article 1 and Article 370 itself) and permitted the state to draft its own Constitution. The state will now be bifurcated into two Union Territories — Ladakh without a legislature, and Jammu and Kashmir with a legislature. While the government received support in the Parliament from parties like the BSP, AAP, BJD, and YSRCP, its ally the JD(U) walked out of the House in opposition to the move. Predictably, political leaders from the state called the move “unconstitutional” and warned of dangerous consequences.

In some ways, the move should not be that surprising as the BJP had talked of the abrogation of Articles 370 and 35 A in its 2019 manifesto and has never been shy of making its preferences clear on the matter. Syama Prasad Mookerjee, founder of the Bharatiya Jana Sangh, the predecessor of the BJP, was imprisoned by the Sheikh Abdullah government in Srinagar where he died in 1953, championing the cause of fuller integration of Jammu and Kashmir with India. Since then this issue has resonated with the rank and file of the party.

The Modi government’s strong mandate for a second term all but ensured that this issue would be front and center for its new agenda. For any government, this issue is a tinderbox, but Prime Minister Narendra Modi has time and again demonstrated his penchant for calibrated risk-taking. So the last few weeks saw the ground gradually being prepared for such a move, one which would have long term consequences for the country and could potentially be the high water mark of the Modi government, if managed carefully.

 

Domestic Politics in the erstwhile state of Jammu & Kashmir

 

2014 state elections (remember 6 year term of J&K legislature) – led to a hung assembly with PDP single largest party 28 seats. BJP second largest party 25 seats. PDP & BJP alliance under the leadership of Mufti Mohammad Saeed. When he died in 2016, there was a vacuum for about 3 months when Mehbooba Mufti became the Chief Minister. Soon, in the summer of 2016, Burhan Wani, a commander of Hizbul Mujahideen was killed in an encounter by the Indian armed forces. This resulted in massive unrest in the Kashmir valley for almost 2 years with stone pelting reach abnormally high levels. It slowly dawned upon the establishment that the earlier demands of azaadi were now being replaced by demands for Jihad. It was accused that Pakistan was funding the Hurriyat and other actors who would organize these stone pelting protests. As investigations into the root causes of stone pelting dug deeper, dangerous patterns emerged as to how mainstream political party Peoples Democratic Party which was ruling the state either turned a blind eye or was in cahoots with the separatists. BJP had to face the brickbats for not able to convince its alliance partner to rein in the stone pelters. However, in June 2018, things changed irreversibly when BJP revoked the support and Mehbooba Mufti had to quit resulting in Governor’s rule. 6 months later in November, there were attempts by both BJP and PDP to form governments separately. BJP wanted to prop up Sajjad Lone (J&K People’s Conferece) as the Chief Minister and piggyback on him to establish firm control over the valley. However at the same time, PDP led my Mehbooba and NC led by Omar Abdullah were attempting the unthinkable of coming together to form an alliance with the support of Congress. While this was happening and Mehbooba had outsmarted BJP and had sent out a letter to the Governor claiming majority in the assembly, the Governor himself didn’t acknowledge the receipt of the fax and issued a recommendation to the Union Government asking for dissolution of the state assembly. Almost immediately, New Delhi had imposed Governor’s rule on the state of Jammu & Kashmir leaving mainstream political parties fuming. This meant that the general elections were due in less than 4 months and New Delhi couldn’t have taken any decision. And here we are now in Aug 2019 when the central government led by BJP has finally decided to dilute Article 370 and also bifurcate the state into 2 Union Territories. Assuming that this stands up to legal scrutiny in courts this fax machine episode will be remembered for decades to come in how it helped shape the destiny of Article 370.

During the first tenure of Modi, it was often alleged that NDA didn’t have a Kashmir policy worth debating. However, we see that all the moves made by BJP were pointing in one direction to ensure that safety and security of people are safeguarded and also to ensure that politically thorny issues are also dealt with. It has come out with a definite plan for the future of Kashmir. Not restricting itself to only dealing with terrorists disturbing peace and order, it has shown its determination to move ahead simultaneously on many fronts towards peace and prosperity in the troubled state. Since the union territory of J&K will have a legislature, there will be no curtailment of political activity; however, narrow party interests will not become impediments in the path of development and progress. I have always been advocating that gram panchayats should be empowered through direct funding. They should become the building blocks to usher in democratic processes at the grassroots level besides serving as nurseries for future political leadership. I am delighted to see that the government intends to do just that.

 

So how did the government manage to take this step against the legal quagmires of Article 370?

 

It basically used Article 370 against itself and abrogated it. Here’s how:

Amit Shah introduced two bills, one resolution and tabled one Presidential Order regarding Jammu and Kashmir yesterday. So, four items in total:

Constitution (Application to Jammu & Kashmir) Order, 2019

Resolution for repeal of Article 370 of the constitution.

Jammu & Kashmir (Reorganisation) Bill, 2019

Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019

Step 1: The 2019 President’s Order Removes 35A and all other special privileges to Jammu and Kashmir

The President of India issued the 2019 Order because Clause 1(d) of Article 370 gives him power to do so provided that this is “in consultation with the Government of the State” (currently meaning the governor of the State)

Article 370, Clause 1(d): such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government

This 2019 order supersedes its predecessor - the 1954 order issued by the then President in concurrence with the then State legislature.

The 1954 order had given astonishing autonomy to the state of Jammu and Kashmir, most important and outrageous of them being:

a) bringing article 35A into existence which gave the Jammu and Kashmir legislature exclusive power to define permanent residents, give them special rights and privileges and impose restrictions on outsiders, put special conditions for state government employment, acquisition of immovable property, scholarships, government aid, etc.

b) adding a proviso to Article 3 of the constitution stating that no bill can be tabled in Parliament without consent of Jammu and Kashmir’s legislature if it deals with increasing or diminishing the area or altering the name or boundary of the State.

But the 2019 order did away with the whole 1954 order including the above two privileges.

Step 2: The 2019 Order makes whole Indian constitution applicable to Jammu and Kashmir

Clause 2 of the 2019 order extends all the provisions of the Indian constitution to the State of Jammu and Kashmir.

Now, remember that the only condition mandated by Clause 1(d) of Article 370 to issue such an order is that it should be in concurrence with the government of the State (which at present is the governor).

So, this is perfectly legal and constitutional.

Step 3: Using Article 370 to kill Article 370 Via Article 367

The 2019 Order has amended Article 367 of the constitution (which deals with general rules regarding the interpretation of the Constitution) to insert four sub-clauses which clarify that references to the ‘state government’ or ‘sadar-i-riyasat’ in the constitution will be construed as reference to the governor of the state.

Most importantly, the 2019 order, via Article 367, amends Clause 3 of Article 370 which allows the President to abrogate Article 370 itself.

However, so far, the condition was that President needed concurrence of Constituent assembly of Jammu and Kashmir. But that ceased to exist in 1956 itself. Hence, the temporary Article 370 had taken a permanent form.

Article 370 (3): Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification

Now, the 2019 order has facilitated abolishing of Article 370 by amending Clause 3 stating that reference to ‘constituent assembly’ will mean ‘legislative’ assembly of the Jammu and Kashmir’.

However, since there is President’s rule in the state, the powers of legislative assembly rest with both houses of the Parliament.

Step 4: Parliament recommends removal of Article 370 to President

Given that the Jammu and Kashmir legislative assembly’s powers are with the Parliament, Amit Shah moved a resolution in both houses to recommend to President the removal of Article 370. It read:

That this House recommends the following public notification to be issued by the President of India under Article 370 (3): ‘In exercise of the powers conferred by Clause (3) of article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased to declare that, as from the date on which the President of India signs the Declaration and it is published in the Official Gazette, all clauses of the said article 370 shall cease to be operative except clause (1) thereof which shall read as under, namely:- ‘’All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, byelaw, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.

Essentially, the government used Article 370 (1)(d) to pass the 2019 order rendering the whole Article 370 itself obsolete and then passed a resolution in both houses to even remove the obsolete Article 370 and replacing it with a simple statement extending all provisions of Indian constitution to Jammu and Kashmir.

Step 5: The state is bifurcated

Amit Shah introduced the reorganisation bills in both houses of the Parliament to split the state in two UTs.

What has been Pakistan’s reaction to these developments on Article 370?

These developments has definitely caught the Pakistanis by surprise as they didn’t expect Article 370 to ever go away. Pakistan tried to court various nations to put pressure on India but most of them said that since it was internal matter of India they had really nothing to say on the matter. There was just one protest from the usual suspect Turkey which has had close relations with Pakistan. Even China did come to the aid of their “Iron Brother’s” by supporting their position against India. On a side note China also expressed its opposition to India's move to create a separate Union Territory of Ladakh which they claim is part of Western Tibet that they claim as being their territory. But there was no mention of the Jammu & Valley regions which are claimed by Pakistan.

Just a few weeks ago Pakistanis had considered the visit of PM Imran Khan & Army Chief Bajwa to Washington as a huge success. They must have been rubbing their hands in glee when US President Donald Trump in his meeting with Imran Khan offered to mediate between India & Pakistan on the Kashmir issue. In India the response to this offer of mediation which as per Trump came from PM Modi was immediately clarified by Indian MEA to be simply not true.

With the withdrawal of US forces from Afghanistan under Trump Pakistan with their Taliban & Haqqani proxies want to again gain control in Afghanistan. This way they can gain their so called “strategic depth” against India. Once the security cover of NATO led forces is gone the civilian government could very well be deposed in Kabul with the Taliban returning to power. This has the potential to cause deterioration of India Afghanistan ties plus danger to the India’s projects in Afghanistan which would come under security threat. No one also needs a reminder than post withdrawal of another Great Power USSR in 1989 from Afghanistan resulted in the terrorists spilling over into Jammu & Kashmir to create massive problems for India.

Another point that the Indian media has been failing to bring into the limelight that there was an attempt by Pakistan in 2018 to add Gilgit Baltistan (a part of POK) as the 5th province of Pakistan. CPEC (China Pakistan Economic Corridor) passes through Gilgit Baltistan & then into Pakistan proper. Since it was in a kind of administrative limbo being directly ruled from Islamabad & not getting any benefits, China tried to push Pakistan to kind of “annex it” into proper Pakistan. Now when Pakistan announced plans to do this the legislators in other part of Jammu & Kashmir under Pakistani control: POJK (referred to Azad Kashmir inside Pakistan) protested massively against converting Gilgit Baltistan into a province of Pakistan. They said that Islamabad had no right to split J&K which was under their control. So Pakistan tried to split the state while considering it to be a disputed territory. Now if Pakistan accuses India of splitting the state it doesn’t have to look too far back in history.

 

So what happens next post dilution of Article 370?

 So what happens next from here is the question on everyone’s mind.

The initial sense of shock in Pakistan was slowly replaced by anger including calls for them to provide a befitting response to India at what they consider as a provocative step.

Pakistan has taken some steps in the meanwhile like closing of Wagah border, sending back the Indian High Commissioner in Islamabad & stopping all cross border trade & taking the issue to the UN Security Council. These are mostly cosmetic steps which have little impact & mostly for satisfying their domestic audience.

A conventional attack while plausible is unlikely given Pakistan’s history of behaviour & current position. Pakistan has already promised to up the ante on the “death by thousand cuts” asymmetric warfare strategy. Imran Khan has said that "incidents like Pulwama are bound to happen again". It will look to activate sleeper cells all across India to conduct spectacular terrorist attacks like Pulwama 2019 & Mumbai 2008. On the LOC full attempts will made to sneak into India as many terrorists to create more chaos & mayhem in the next few weeks. They would want to add fuel to the fire that is burning in the hearts & minds of some Kashmiris who feel wronged by the decision on Article 370. There have been reports in the media that the terrorist launch pads are full with them looking for an opportunity to infiltrate into Kashmir. Last weekend once such attempt of the Pakistan BAT (Border Action Team) consisting of Special Services Group (SSG) special ops forces & regular terrorists was neutralized by Indian forces during one such attempt. Many sectors of the LOC have been reporting heavy exchange of fire between both sides. Many of the infiltration attempts by Pakistan have been attempted during such cross border firing incidents.

Pakistan will want to escalate with India in such a way that it invariably invites a forceful response from India. Once India does a kinetic strike back at Pakistan they would then want to run to Uncle Sam to immediately intervene to hold India back. This way they get to internationalize the Kashmir issue.

Secondly once escalation occurs expect Pakistan to blackmail US on not co-operating with them on future proposed withdrawal from Afghanistan. They would likely then say that because of prevailing tensions with India their focus is on eastern border with India vs in Afghanistan. In this situation they would want to extract their pound of flesh from Trump & USA by insisting on getting involved on the Kashmir issue (including possible mediation) as a condition for them helping US to withdraw from Afghanistan in a manner that takes care of American interests. This is basically saying that if you don’t help me with India I wouldn’t help you with Afghanistan.

Still this yearning for a forceful response from Pakistan to India has put itself in a bind considering the current geopolitical & financial situation that it finds itself in today. According to IMF forecasts, real GDP growth is expected to slow to 2.4% in the current fiscal year, (down from 3.3% in previous year). Inflation which currently is above 9% has been predicted by IMF to go up to a sky high 13%. To combat rising inflation Pakistan has raised its interest rate to 13.25%  The Pakistani rupee has depreciated 30% against the US Dollar in the past 12 months & continues to fall every few months. Pakistan forex reserves are down below $7.62 Billion which can’t even pay for 2 months of export. As if these economic woes were not big enough the next meeting of the FATF (Financial Action Task Force) in September could see it being blacklisted which might would be a crushing blow to an already reeling economy

 

What are the Geo Political Implications of this move?

One of the questions which many are wondering is why touch 370 now of all possible times. One is the impending withdrawal of US from Afghanistan. The withdrawal could take anywhere from 9 to 15 months depending on the agreed timetable between US & Taliban.  There is a possibility that in a vacuum afterwards Taliban could retake the country which could be within months or could even take years. Once Pakistan secures its eastern neighbour there is a possibility that these extremist forces will be launched against Kashmir eventually like they did 3 decades ago.

As per a report in the Hindustan Times by Shishir Gupta on July 5, RAW chief Samant Goel told the PM that India perhaps had a month to fully integrate Kashmir with itself, after which things could spin out of control. US would fully engage with Pakistan to strike a deal with the Taliban over Afghanistan. This could result in a deal between the US and Taliban by September 1 following which Washington could choose to reward Islamabad for its role with the resumption of military and economic aid. That could see an intensification of Islamabad’s direct and indirect sponsorship of terror groups operating in Kashmir. Soon after this there was the Trump offer to mediate between India & Pakistan during the Trump Imran Khan meeting on July 22nd.

Interestingly Taliban just yesterday released a fascinating statement on this issue saying that “urged both India & Pakistan to refrain from taking big steps that could pave a way for violence & complications in the region & usurp the right of Kashmir”. This unexpected statement from Taliban looked more like a statement from a responsible state actor rather than a military organization waging a civil war. India on its part can’t get fooled thinking that Taliban will not meddle in Kashmir in future as the probability that they will still remain higher. For now Taliban in the closing stages of its ongoing negotiations with USA in Qatar. They wouldn’t like any increase in escalations including armed conflict derailing their efforts to close the deal with. Their eye is firmly on the prize that awaits them in Afghanistan when US leaves & the jihad in Kashmir is secondary for now.

The changes to article 370 are bound to cause a flare up in the Valley region for sure. The government will have to do a slow gradual easing of the clampdown that is currently present in the state. There has to be a fine tune here as if you lift it too soon & there could be massive bloodshed while on the other hand keeping it going too long will be detrimental as it could unleash more backlash if the people feel they have been put under pressure for far too long without any chance to vent their frustration & anger. Either way there is bound to be a surge in violence when the telecommunication blackout & curfew/assembly restrictions. The upcoming 3-6 months through the summer & also probably the fall will be a hard slog for the security forces in the state to keep the situation from spiralling out of control. In the long run (worst case once winter sets) the violence should abate & people will get adjusted to this new normal. The longer it’s takes for locals to accept this new normal will give Pakistan more chances to stir up more problems. They could then use the prolonged chaos to try to whip up frenzy in Western media publications friendly to their point of view which helps them in internationalizing this issue. The next 2 weeks will be crucial in terms of security in the state with Bakr Eid being observed on Aug 11 & Independence Day soon after on August 15th. How the security forces manage to handle the things will go a long way in determining how events unfold in Kashmir over the next few months.

The government will have to work doubly hard to ensure that once the security restrictions are lifted whenever it maybe once the venting is over more alienation doesn’t occur among the youth in Kashmir. Prime Minister Narendra Modi advised his ministerial colleagues that there is no room for triumphalism and reminded them that it’s now that the heavy-lifting begins as per a report in the Indian Express. “It is a big day for the country. We should demonstrate foresight and statesmanship to take everyone along on this,” said a source to Indian Express about Modi’s message to the Cabinet on the morning of August 5. 

Coming back to the timing this decision could have been taken now to ensure that whenever this new normal sets in it happens crucially before Pakistan pushed in more proxies who were fighting in Afghanistan now into Kashmir. This way they can some sort of control over the situation before it can be made exponentially worse by the Afghani jihadi elements.

The world’s powers also seem to be bust entangled in their own headaches at the moment. US with withdrawal from Afghanistan, tensions with Iran & trade with China, China with a slowing economy being hurt in their trade war with China & high profile protests in Hong Kong which have led to the main airport being shut down, Britain busy dealing with their Brexit mess, etc. This also helps with the timing as no one would be really bothered to poke their noses between Indian & Pakistan for the moment.

Note: This was originally discussed on Episode 19 of the India rising podcast hosted by Mohal Joshi & Kishor Narayan. (Below are links to the episode)

YouTube: https://youtu.be/RQEvS2NPANc

SoundCloud: https://soundcloud.com/indiarisingmk/india-rising-ep-19-abrogation-of-article-370

Transcript of Podcast of Kishor Narayan & Mohal Joshi discussion on the India Rising Podcast on the dilution of Article 370.

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