With the Supreme Court (SC) upholding the revocation of Article 370, it is the beginning of the end of the politics that defined the lived experience of the people of Jammu and Kashmir (J&K) for more than 70 years.
But will it also shape the region to the BJP's (Bharatiya Janata Party) liking?
Throughout this week, people in Kashmir were unfazed by the idea that the apex court would finally deliver its verdict on the matter. There was an element of certainty about what the verdict was going to be, and there wasn't a lot of hope anyway.
What has turned out to be shocking, however, is the way in which the SC has conferred a ringing endorsement to every move that was part of the August 2019 decision taken by the Modi government.
The Court stated, “Every decision taken by the Union on behalf of the State during Presidential rule is not open to challenge…this will lead the administration of the State to a standstill.”
It further held that it did “not find the use of Presidential power to issue [Constitution Order] 273 male-fide. Thus, we hold the exercise of Presidential Power to be valid,” and that “Article 370 is a temporary power.”
The Sui Generis Political Character
The removal of Article 370 was a contentious affair for many reasons.
Unlike other parts of the country, J&K saw an emergence of democratic power structures in the run-up to the Partition in peculiar ways. It wasn’t the British Empire that the political leaders in Kashmir were fighting, but the Hindu Dogra monarchy. The political mobilisations that led to the uprising of 1931 forced the hand of colonial authorities, resulting in the creation of a 75-seat legislature, a free press, freedom of assembly, and the formation of political parties.
It was these hard-won victories, and the sense of political individualism that they embodied, which Kashmiri Muslims were seeking to preserve when the realities of the Partition crashed headlong into their midst. The accession with India was a leap of faith, and to assuage this trust deficit, Indian leaders agreed to enshrine in the Constitution the safeguards to protect the region's political autonomy.
Is it any surprise, then, that the first post-Partition political row that was to erupt between J&K and the Union was precisely on this very issue?
Sheikh Abdullah was aghast at the Union government’s attempt to expand the jurisdiction of the Comptroller and Auditor General of India (CAG) over J&K in the early 1950s, which he interpreted as an attempt to weaken Article 370.
These impulses to maximise and protect whatever autonomy J&K had secured for itself led to massive protests by Hindu hardliners in the State who converged under the banner of Praja Parishad. Things came to pass in the summer of 1953 when Abdullah threatened to revisit the accession following which he was deposed and arrested.
Public Anger Likely to Acquire a New Centrality
Since then, Article 370 has witnessed a precipitous erosion. The August 2019 move in that sense was a parting kick intended to choreograph a very ambitious political stratagem yet to deprive the region of the mainstay of its politics.
But over the last four years, the people of Kashmir waited with a bated breath. All the controversial decisions — including the changes in land ownership rules, domicile laws, delimitation of electoral seats, and the pushing of J&K civil services into the AGMUT ( Arunachal Pradesh-Goa-Mizoram and Union Territory) cadre — have deeply unsettled them, and generated massive resentment.
The people, however, were also cognisant of the fact that such measures still have a final round to clear before they are deemed fait accompli. Now that the country’s top court has put a stamp of approval on the 2019 decision, it is likely that the simmering anger over these matters will acquire a new centrality in the public imagination.
In that sense, the apex court's decision is likely to heighten, rather than mitigate, the feelings of what the government calls secessionism. It wasn’t lost on the people that the Court justified the other states having some degrees of constitutional privileges by referring to ‘asymmetric federalism’ while legitimising taking away similar privileges from J&K.
People will ask: was J&K denied autonomous status because it is a Muslim-majority province?
During the hearing of the Article 370 case in August, the Chief Justice himself made an interesting remark. He said, “Any amendment of 370 would be subject to criticism on the ground of morality, but not power.”
It means that the judges clearly understood that the move wasn't morally tenable, to say the least. The fact that most Kashmiris were able to predict (with uncanny accuracy) exactly what SC will decide is telling, for it indicates the extent of political estrangement in the region.
Executive Fiats and Why Mainstream Discourse Mattered
Monday’s verdict will only reinforce the impression that the country's top institutions are incapable of protecting Muslims in Kashmir from being subsumed under the Indian government’s centralising tendencies (Hindutva including).
If there was any one effective purpose that mainstream discourse in Kashmir was serving, it was the cognisance of the historicity of the sentiment in favour of autonomy, or other versions of it.
Major political parties of Kashmir were, therefore, also social interlocutors, trying to mediate the historically entrenched pro-autonomy and pro-plebiscite constituency in J&K with the one that favours a lasting accession with India.
The SC decision represents a complete decimation of this tradition, and opens the ground for dealing with people only via the raft of extraordinary laws: Article 311 (2)(c), Unlawful Activities Prevention Act (UAPA), Section 144, Armed Forces Special Powers Act (AFSPA), and Public Safety Act (PSA) among others.
Now, Kashmir won't have any credible mediators.
Instead, the Modi government will increasingly find itself imposing new, far-reaching political changes via executive fiats like the recent passage of the four bills in the Lok Sabha concerning the addition of new seats to the legislature, the reservation of additional seats for minorities and refugees, and the expansion of the category of Other Backward Classes (OBCs) eligible for affirmative action programs.
As much as the government claims these steps to be intended for public welfare, it is also clear that they are likely part of the BJP’s electoral calculus. The tendency to orchestrate subterfuge in the name of welfare isn’t lost to Kashmiris.
Locking 8 Million People is not Mala Fide?
The other shocking detail in yesterday's decision was how it described the act of the Presidential orders nullifying Article 370 as not being male-fide.
How can one justify all that was involved in foisting these decisions?
If it was so legitimate, then what was the need to put nearly 8 million people under total siege, with communications cut off among other restrictions that led to the loss of lives and caused damage to the regional economy?
Does it mean that regional political aspirations can be usurped and extinguished just like that, without much regard for checks and balances?
There will be a time when people come to terms with the severity and the scale of what has happened. The ability to wield untrammelled executive power was, in a democracy, blessed with judicial validation, and sensitive legal decisions that democratically elected leaders are supposed to legislate are being railroaded instead.
Monday's judgment may have indicated legal sagacity on the part of the judges. It may also be possible that what the judges determined hews close to settled jurisprudence as is required in the craft of adjudication.
But on the larger paradigm of the country's supposed role to secure a lasting social contract between various communities of differing ambitions, it speaks of a moral failure.
(Shakir Mir is an independent journalist. He tweets at @shakirmir. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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