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Ending special status to Kashmir has costs, say experts

Since its inception, India’s ruling party had promised to abrogate special status to Muslim-majority region of Kashmir

Iftikhar Gilani   | 05.08.2019
Ending special status to Kashmir has costs, say experts


In an unprecedented development, fraught with consequences, India on Monday removed the constitutional provision that granted special status to Indian-administered Jammu and Kashmir by a presidential order. 

The announcement came after Prime Minister Narendra Modi held a meeting of his cabinet at his residence. Home Minister Amit Shah further announced that the region will be bifurcated into two centrally-administered territories -- Jammu and Kashmir, and Ladakh.

Since its inception in 1980, India’s ruling Bharatiya Janata Party (BJP) has contested elections on a three-point agenda -- to enforce a uniform civil code, to build a grand temple of Hindu Lord Rama in the city of Ayodhya to replace Babri Mosque and abrogation of a constitutional provision guaranteeing special status to Muslim-majority region of Jammu and Kashmir.

The BJP, which ruled the country twice earlier between 1998-2004 and 2014-2019, could not implement its core agenda as it was riding on the crutches of few secular allies to hold power.

Now, after winning an absolute majority in the parliamentary elections in May this year, the Modi-led BJP government is moving fast to implement the party’s core agenda.

In its first parliament session, soon after the re-election, the government sought approval to The Muslim Women (Protection of Rights on Marriage) Bill 2019, criminalizing the practice of instant divorce. The decision is seen as a move towards implementing a uniform civil code across the diversified country.

On the construction of Ram Temple at the site of demolished Babri Mosque, the government has pinned its hopes on a favorable judicial verdict after failing to convince Muslims to give up their claim on the site.

Hindu right-wing group opposes Kashmir special status

Indresh Kumar, leader of the right-wing Hindu nationalist group Rashtriya Swayamsevak Sangh (RSS), said the time had come to review special status guaranteed to Indian-administered Jammu and Kashmir.

The RSS is patron organization and conscience keeper of the ruling party. Heading the Kashmir and Muslim affairs department of the RSS -- an organization with a vast network in India and abroad --, Kumar wondered why Kashmir could not become like “any other Indian province”.

Questioning the need for a special provision under Article 370 and a separate citizenship rules under Article 35 (A) of Indian Constitution for Kashmir, Kumar said it smacks of preferential treatment to the region.

"The time had come for its review and also to ascertain what the gain was and what was the loss the country had because of the Article 370," he added.

After securing a decisive mandate in the last parliamentary election, the ruling party leaders said that they were under obligation to end the special status of Kashmir.

Ravinder Raina, head of the BJP for the Muslim-majority state, said his party was committed for the early abrogation of the special provisions.

He added that BJP was also working to reserve eight provincial assembly seats for Hindu refugees, who had come to Jammu region from Pakistani territories in 1947, at the time of Independence of India and creation of Pakistan. Analysts say it is a ploy to increase Hindu members in the assembly.

Kashmir divided into two region 

Besides abrogating the special provisions of the state, New Delhi has also divided it, separating the Buddhist-dominated Ladakh from the Muslim-majority Kashmir and Hindu-majority Jammu. Jammu and Kashmir will cease to be a state and become two Union Territories with two Lieutenant Governors. Ladakh will be a Union Territory without a legislature and Jammu and Kashmir will have a legislature.

While legal experts say the process involved an elaborate process of amending the Constitution of India as well as the Constitution of Jammu and Kashmir, the RSS at its national executive meeting in Kurukshetra in Haryana province a few months ago had argued that the division was the "best solution to resolve the vexed Kashmir issue”.

The 2011 census data released by the Indian government have put the total population of the Indian part of Jammu and Kashmir at 12.5 million, comprising 68.31% Muslims, 28.43% Hindus and 0.89% Buddhists.

A look at the region-wise demography shows that Kashmir Valley has 94.4% Muslims while Jammu region comprises of 62.55% Hindus and 33.45% Muslims.

Unlike Kashmir Valley, Jammu region is not homogeneous. It has three sub-regions, with two of them forming Chenab Valley having 59.97% Muslim population and Pir Panchal with 74.52% Muslim population.

The remote mountainous Ladakh region -- also known as cold desert -- has a population of just 274,289, with 46.40% Muslims and 39.65% Buddhists.

Its Kargil sub-region, bordering Skardu of Gilgit region in Pakistan, has 76.87% Muslim population.

Decision to complicate Kashmir issue

Analysts fear that the division of the state will not only complicate the Kashmir issue. It will put huge Muslim populations in Kargil sub-regions -- who look towards Kashmir Valley for their political and social empowerment -- to a major disadvantage,. It may even trigger an unprecedented migration, last seen only at the time of partition in 1947.

Well-known author and prominent constitutional expert A.G Noorani told Anadolu Agency that Jammu and Kashmir had acceded to India in 1947, only on three subjects -- defense, foreign affairs and communications.

“By 2019, 94 of the 97 entries in the Union List and 26 of the 47 in the Concurrent List have been applied to Kashmir. As many as 260 of the 395 Articles of India’s Constitution have been applied, all in the name of integration. Nothing remains of Article 370 except to protect citizenship provision under Article 35 (A),” he said.

The provision defines the classes of persons who are, or shall be, permanent residents of the state of Jammu and Kashmir; or conferring on such permanent residents any special rights like employment in the state government and acquisition of immovable property.

Noorani wonders why Hindu right-wing RSS was obsessed with abrogating this right in Kashmir only when it existed in tribal areas of India’s southern province of Telangana, northern hill state of Himachal Pradesh and in northeastern provinces of Nagaland and Sikkim.

Further, he believes that Article 35A cannot be amended or deleted by the Indian Parliament, unless by order of the President.

“For this, the approval of the state’s constituent assembly is necessary. Any concurrence of the state government is always subject to the assembly’s final approval. When the state is under the central rule, neither can accord that concurrence. The center [federal government] cannot acquire concurrence from its own handpicked appointee [governor] removable at will,” he added. He termed the current steps taking by Indian government illegal and against the spirit of its own constitution.

Special status was pledge to protect Kashmiri identity 

Historian Prem Nath Bazaz records that it was actually Kashmiri Pandits (Hindus) who had launched agitation early 20th century, forcing the then Hindu ruler Maharaja Hari Singh to enact a law to bar outsiders to buy land or seek employment in the state. The law was necessitated to prevent residents of neighboring Muslim Punjab province to settle and marry in the picturesque Kashmir Valley.

According to Noorani, the 1952 Delhi Agreement, between then Indian Prime Minister Jawaharlal Nehru and Kashmiri leader Shiekh Mohammad Abdullah, has explicitly given the solemn pledge to protect identity and culture of Kashmiri people by preventing outsiders to own land in the disputed region as well as to protect its demographic character in the Hindu majority India, an identical reason that compelled Hindu ruler to enact the law in 1923.

“So, the present government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. So, we agreed and noted this down,” Nehru told Indian parliament in 1952.

Abdullah, who had played a key role in Kashmir’s conditional accession with India had expressed fears about the future of a Muslim majority region in India.

“There is not a single Muslim in Kapurthala, Alwar or Bharatpur, some of these had been Muslim-majority states before independence. Kashmiri Muslims, are afraid that the same fate lies ahead for them as well,” he told Nehru, while insisting to safeguard any demographic change in Kashmir.

Another legal luminary and politician Muzafar Beg said that the Indian Supreme Court, in its judgments, had already upheld the validity of Article 370.

“Therefore, in a law-abiding state, there should have been no controversy generated about the aforesaid provisions of the constitution, more so, because the said articles have been in force since over 65 years without creating any problems for the Indian state. Pertinently, provisions akin to Art 35-A, also available to several other states of the Indian union,” he said.

Step to fuel Kashmir paranoia 

India’s leading security analyst Praveen Swamy writes that ideological opponents of special status are looking at Chinese Xinjiang-like demographic model for transformation.

“They believe a demographic change will collapse the religious-ethnic basis of the decades-old insurgency in Kashmir. By abrogating special provision, the Modi government sees an opportunity to radically transform the landscape -- and win support, at the same time, in the rest of the country, where frustration over Kashmir has hardened into something close to hatred,” he said.

But he cautioned that the script would not play out quite as its authors have intended. “In the short-term, the likely consequence of revoking special provision is likely to be uniting Kashmir’s now-divided political forces -- parties like the People’s Democratic Party and National Conference, on the one hand, and separatists on the other. This will serve only to further consolidate and fuel Kashmir’s politics of paranoia,” Swamy adds.

India's strength in diversity, not forced unity 

Noted commentator Bharat Bhushan said the BJP has a grand plan to take control of Jammu and Kashmir Assembly for which elections may be announced soon.

“The ideal outcome for the BJP would be to win a majority of the 37 assembly seats in Jammu region and its allies bagging about 14 to 15 seats from the 46 in the Kashmir Valley. This would allow it to install a Hindu Chief Minister in the state and take recourse to other constitutional changes legally,” he said.

He believed that instead of helping to bridge the gap between the two major religious communities in the state, India’s ruling party’s politics feed off increasing differences between the Valley Muslims and the Jammu Hindus.

“These policies continue to push vulnerable groups of youngsters towards radicalization and violent extremism. Roughly, there are about 1,000 security personnel (including the state police) for every militant active in the Valley. This imbalance could force the militants to fan out to the rest of India. Instilling fear by use of maximum force against those who are opposed to a particular idea of India could, therefore, come with unforeseen consequences,” he said.

Indian government’s former interlocutor on Kashmir MM Ansari also warned New Delhi that usurping federal powers guaranteed to Jammu and Kashmir would have its consequences.

“Time has come to delegate more powers, rather taking away, what they already have. It will only fuel a sense of disempowerment and further unrest,” he told Anadolu Agency.

Ansari believed that unlike other countries in the region, India’s strength has been its democracy, federal nature and diversity, not in unity and assimilation.

“India’s’ diversity and pluralism are its asset, which needs to be preserved,” he added.

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