The abrogation of Article 370 and its implications
By Rajesh Kumar Sinha
The abrogation of Article 370, a temporary provision of the Indian Constitution, relating to the state of Jammu & Kashmir, by the incumbent Modi Government in India has made it to the headlines of global media. Much to the chagrin of the Indian government, it has even been discussed informally by the UNSC at New York, at the prodding of China. Though not much came out of it, Chinese and Pakistani sides have been quick to show it as the vindication of their respective ‘national’ stands while India, has maintained its cool, calling it as an “internal affair of India.”
Before jumping to a conclusion, it is important to have a basic understanding of the genesis of this contentious constitutional provision. At the time of Indian independence from the British rule in 1947, almost 600 princely states were part of India. Many of them joined the Indian union spontaneously or under the persuasive and coercive diplomacy of Sardar Patel, the then deputy Prime Minister of India. Kashmir, a Muslim-majority state was ruled by Hari Singh, a Hindu ruler who initially decided to maintain a sovereign kingdom of Kashmir.
However, a sudden and well-planned attack from Pakistan in the form of local tribesmen, along with its army, changed the scenario dramatically. Hari Singh was forced to seek help from India and Patel compelled him to sign an Instrument of Accession with India. Indian forces reached Kashmir and a protracted battle, lasting October, 1947 to January, 1949 finally led to a ceasefire agreement under the UN auspices. An important component of the agreement was to be a plebiscite to be held in Kashmir, ascertaining the views of the people if they wish to be part of India, Pakistan or remain independent.
As per the terms of ceasefire agreement adopted by the UNO on 5thJanuary, 1949 Pakistan was required to withdraw its forces, regular army and irregular forces while India was to maintain a minimum number of forces to preserve law and order. The compliance of these conditions was to be followed by a plebiscite. At that time, two-thirds of the Kashmir territories were under Indian control while rest, one-third was under the control of Pakistan.
Another less-talked part of Kashmir remains, under what India calls ‘illegal occupation’ of China which occupied Aksai Chin (approximately 37,555 sq km), during the short border skirmish with India in 1962 and Shaksgam Tract, ceded by Pakistan to it in 1963. Rationally, there should be three parties to the Kashmir dispute-India, Pakistan and China. Interestingly, while worldwide it has been given a color of being a bilateral dispute between India and Pakistan, the questionable silence of Indian government on the issue, is intriguing. China that made a part of Kashmir under its occupation, a part of its Xinjiang Uyghur Autonomous Region province, till recently ‘enjoyed’ the dispute between the two south Asian neighbours. It helped it in portraying India to the status of a regional player, a ‘rival’ of Pakistan while showing herself as an ‘emerging superpower,’ rival to the only existing superpower, the USA.
However, wary of growing influence of an assertive India under Modi regime, China naturally reacted with ‘a controlled fury’ when on August 5, Indian government swiftly and decisively abrogated the Article 370 of the Indian Constitution. What probably compelled the Chinese to make a hue and cry on the issue, taking it to the UNSC, even on an informal basis, was Indian Home Minister Amit Shah’s assertion in Indian Parliament that when India talks of the whole of Kashmir being an integral part of the country, that includes the Aksai Chin, too, currently under Chinese control. Aware of the Modi regime’s decisiveness and popularity, the Chinese seem more perturbed by the open questioning of Aksai Chin’s status by India rather than keeping their ‘all weather ally’ Pakistan, in good humour.
This is one part of the story that has not been properly attended to by the world media. The Chinese remarks, by their UN representative talking of Indian action affecting their sovereignty, should be taken more seriously. The Chinese are very deft in securing territories, with stealth and threat, without firing a single bullet and that is clearly evident in their actions in Tibet (1955), against India (1962) and in the South China Sea against countries like Vietnam, Philippines, Taiwan, Thailand, Indonesia and Malaysia.
On the Pakistan front, the country that seems to have gone hyper since the declaration made on 5thAugust from the President, Prime Minister Khan to media, film actors to professionals to cricketers to terrorists, all suddenly seem to have gone berserk. Their talk now has moved on to how the ‘fascist, Hindu supremacist Nazi-oriented Modi government’ with a huge nuclear arsenal, can be a big challenge for regional and global peace. The foreign minister Qureshi openly suggesting that Nehru’s India (his party the Indian National Congress) would have been much better than Modi.
Quite astonishingly, it displays a severe dearth of diplomatic skills on part of Pakistan government. First, Modi is a hugely popular leader in India and has led his party to back-to-back electoral victories, unheard of in Indian politics in the last four decades. Using such abusive language against leader of the largest democracy in the world is simply put, short of any diplomatic art or finesse. Second, he has some wonderful personal rapport with most of the world leaders who are unlikely to take an explicit stand against him. Third, unlike its western neighbour, India is among the top two leading economies, a home of billion plus people with growing energy and other needs, a massive market to all the global producers who are certain to lobby their respective governments, against angering India. Fourth, India under Modi has politically and militarily become more powerful and is ready and willing to take recourse to new challenges and strategies. The big examples have been calling bluff to so-called nuclear blackmail by Pakistan, by conducting the ‘surgical strike’ (2016) and Balakot airstrikes (2018) on terrorist camps inside Pakistan-administered Kashmir.
Led by a shrewd leader Modi, who is extremely unpredictable (every alternate day the Pakistani media keeps wondering what is going through Modi’s mind), the NSA Ajit Doval and EAM S. Jaishankar are known to be on same wavelength as Modi and are astute practitioners of the art of statecraft and strategic issues. In spite of repeated portrayal of Modi as a leader of Hindu nationalist party, in domestic and global media and by Pakistani PM Khan and his ministers, the entire Arab world has maintained a studied silence on the Article 370 issue whereas UAE has explicitly described it as an ‘internal affair of India.’ The UNSC has snubbed Pakistan by even refusing to talk about the ‘informal meeting’ and by not maintaining any minutes or repertoire or talking to media, about it, irrespective of repeated efforts of China. Both outcomes are indicative of the ‘real influence’ wield by Modi’s India in contemporary global politics.
The precarious state of the Pakistan economy is another factor that needs attention. A virtually bankrupt economy with PM Khan, rushing from Saudi Arabia, UAE to China and IMF in search of loans and bailouts, rising inflation and declining confidence of common people in the government, Kashmir is turning out to be a good diversion for the government. Khan’s ramping up of rhetoric against India and Modi, in particular, could well give him some time and popular support as is evident in its media and other places.
The Pakistan Army, widely believed to be the real reason behind Khan’s accession, will also have an easy time. No wonder, the Pakistan COAS Qamar Bajwa has been given an ‘extension of three years’ in his current job that is normally unheard of in any democracy. In the midst of economic difficulties, it will again have a ‘natural reason’ for enhanced funding from stretched national resources. Its affiliate wing ISI, will also have a ‘great time’ in accessing unaccounted funds and spending on the ‘never ending Kashmir struggle’ against enemy India.
Pakistan still, on the watchlist for support and promotion of terrorism, may wait for some time till October when the Chinese, along with Turkish are expected to shield it again or buy some time. Meanwhile, PM Khan has already put the blame on India by ‘apprehending’ that more ‘Pulwama-like incidents’ may happen due to India’s action on article 370. Indian intelligence sources have already confirmed that various launch pads in the Pakistan administered Kashmir are already in the process of being reactivated. So irrespective of high levels of Indian security arrangements, Pakistan will continue to infiltrate terrorists to India through Kashmir, Punjab, Rajasthan or even through more porous borders like Nepal and try its best to create some major terror attack and bring the global attention on the issue.
The August 16 telephonic call to Trump by Imran Khan, just before the UNSC informal meet on Kashmir, is another indication that Pakistan will continue to keep the tempo high on the issue. While assuring support on the Afghanistan issue, it will continue to link it to Kashmir and demand direct or indirect mediation.
China, in the midst of a trade war against the US, badly needs India’s support. And it is the reason that usually reluctant Chinese have been cosier to India in recent months. However, it sees Indian action in Kashmir as affecting its position in Ladakh when the two sides meet on border dispute in the next few weeks. Hence, it will continue to be stringent against the Indian action in public and will try to get an upper hand in negotiations on the boundary question. On the other side, by portraying its anti-India stand, it will continue to hold its sway in Pakistan who undoubtedly have been demoralised by absence of any support from Arab World, the US and others.
The US has its priority on withdrawal of its troops from Afghanistan. It will continue to offer some kind of financial and military aid, as a leverage to secure Pakistani support on bringing Taliban to positive negotiations. It is not in a position to pressurise India to change its track on Kashmir nor can mediate, directly, given the need for Indian support against China in the Indo-Pacific region and elsewhere.
The other major powers, France, UK, Japan, Germany, EU, OIC, Israel all have good commercial/ strategic relations with India and none of them would like to disrupt their flourishing relationship. UK apart, one from its continued colonial hangover where some of its leaders feel that they have a role in sorting out Kashmir issue and the current state of turmoil in British polity, may induce it to make some remarks which are unlikely to be given much significance by the Indian establishment.
From the Indian perspective, the Modi government, with a comfortable legislative majority, is not known to buckle down under pressure. It seems prepared for initial criticism and trouble brewing in certain pockets of the state. The unprecedented lockdown, localising trouble-spots and gradual easing of the restrictions are part of the new strategy. There is every likelihood that the reorganisation of the state and carving it into two union territories, will go on as announced. Only this time, the state administrative, police, paramilitary forces are better equipped, sensitised and prepared to deal in with trouble-makers and the result is being seen in the first fortnight itself. There have been localised troubles but contrary to popular apprehension and unabated propaganda from Pakistan, by and large the atmosphere has remained peaceful.
One more factor that has contributed is the general feeling among residents of the state that this government means business and it will not buckle down under pressure. Also, going by the way, Indian government is working on various welfare projects in other parts of the country, a fair number of Kashmiris are hopeful of better socio-economic conditions in near future. A reassuring feature of the widely criticised lockdown is that the political leaders, who have been detained, are not known to be honest and efficient and hence, people are not very restless against this action.
Lastly, Indian government seems to have done its homework well. Indian Supreme Court is seized of the legality of this governmental order that has been brought up before it by some individuals. However, the government has used Article 370 (3) as a Presidential Order to abrogate this contentious provision.
This constitutional provision calls for the issue of such an order in consultation with the Constituent Assembly or the State Government, in the absence of the same. Since the Kashmir Constituent Assembly dispersed itself in November, 1956 and the state was under the President’s Rule (Art 356), the government was within its right to secure the concurrence of the State Government through a Rajya Sabha resolution or a nominee of the Central Government (the Governor of the State Satyapal Malick in this case), an interpretation that was upheld by Indian Supreme Court in 1972.
Further, during the period February 1956-February, 1994, forty-seven Presidential Orders have been issued in relation to the state of Jammu & Kashmir. And on many occasions, the state was under the Presidential Rule. If those Orders were to be treated as valid and legal, the use of Article 370 (3) by Central Government now, seems perfectly in order. So irrespective of critical comments of many from legal fraternity in India, it looks like the government will not have a very tough legal battle ahead.
On the issue of ascertaining wishes of the Kashmiri people, that Pakistan and many in India are clamouring for, the basic condition of the UN mediated ceasefire in 1949 the plebiscite was to be preceded by the complete removal of Pakistani forces from the entire Kashmir region and maintenance of minimum forces by India for law and order duties.
At no point of time, Pakistan removed its forces from Kashmir and on the contrary, carved Gilgit and Baltistan, part of the Kashmir under its occupation into Northern Territories. Further, it even ceded Sakshgam Tract, part of Kashmir to China under a so-called China-Pakistan Boundary Agreement, 1963. A supposedly disputed territory whose final outcome is yet to be decided, if already has been played up like this, no international law will be able to question the removal of Article 370, a part of the Indian Constitution, by the Indian Government in the Indian legislature.
And finally, with China-Pakistan Economic Corridor (CPEC) being fast tracked in Kashmir under Pakistan’s control, questions are certain to be raised if the wishes of people in that part of Kashmir have been taken before allowing China to exploit their natural and human resources. How come a foreign country is allowed to make investments worth billions of dollars in a ‘disputed territory.’ It remains a major issue on which India has refused to be a part of ambitious Chinese BRI project. There are many such issues which Pakistan is neither capable of dealing in or responding to.
In the backdrop of such complexities, the decision to abrogate Article 370 seems to be a right one. It is certain to be resisted by a fair section of local populace initially and Pakistan and China, at the regional level. However, if the situation is handled effectively, both inside the state as well as on the Pakistani infiltration front, as the first fortnight has shown, very soon the Indian state of Jammu & Kashmir may witness fresh elections for a new legislative assembly and usher in an era of peace, progress and prosperity. The union territory of Ladakh too, will join in the other parts of India as a terror-free tourism hot spot for global tourists. And not to forget, China will have to accept India as a more than a regional, developing country and sort out the border dispute on a ‘truly mutually acceptable fair terms.’ Pakistan, if it continues to behave like it is doing today, could well turn out to be a big example of a failed, radical Islamic state torn by divisive, terror-driven policies and being managed by some UNSC mandated international peace keeping force in not so distant future.
Rajesh Kumar Sinha is a Librarian, South Eastern Railway, India. He holds MPhil (Library & Information Sc), MA, PG Diploma in Journalism
