Abrogation of Article 370/35A and aftermath

News Bharati    12-Aug-2019   


On August, 05/06, 2019, the Government of India made certain provisions of Article 370 of the Constitution non-operational. The Jammu and Kashmir (J&K) Reorganization Bill has been passed with majority in both Houses of Parliament to create two Union Territories (UTs) for Ladakh and for Jammu and Kashmir Regions respectively. This administrative reorganization will improve good governance and deliver socio-economic justice to people who were deprived of the benefits of Article 370.This has not changed the status of Line of Control (LoC). Article 370 was intended to be temporary under Part XXI of the Constitution that covers Temporary, Transitional and Special Provisions. Total of 54 Presidential Orders/Proclamations have been issued under Article 370 with a view to apply Central Legislation and Regulations to J&K, since 1950. Most comprehensive orders were issued during 1950-54 with two recent orders; one on GST/2017 and one on Reservations in Promotion/2019.

These Presidential Orders/Proclamations were intended to commence and complete a Gradual Integration Process by which the governance of J&K was to be synchronized with the rest of the country. But administrative efficiency and quality of governance in J&K was affected by its inadequate integration with National Practices. Large resources from India have been allotted to J&K, without any commensurate development. Ten percent of all Central Grants have actually been given to One percent of the Total Population of India residing in J&K, amounting to over Rs 27,70,000 Crore ($400 billion). But, almost nothing reached common man. On the contrary, intended developmental efforts have faced very many obstacles like misuse of Cross LOC Trade in smuggling in of weapons/explosives, which eventually led to is closure in April, 2019.

In one mighty sweep, abrogation of Article 370 of Indian Constitution shuts the door on any prospective move by an outside actor to get involved in the Kashmir dispute. In the Instrument of Accession signed by Maharaja Hari Singh in 1947/48 with Union of India, it mentions 'Jammu and Kashmir. Ladakh was not even mentioned. The entity, 'Jammu and Kashmir' must exist as one State because POK was part and parcel of J&K in 1947/48 when Instrument of Accession was signed. This must be kept separate to later integrate POK which was rightfully ours, into our J&K. In future, as and when India claims or demands POK, then this signed Instrument of Accession would be needed to show that accession was for entire J&K that included the POK that was allowed to be taken by Pakistan.

Master trump card was that the Article 370 has NOT been removed totally at all. Rather, it has been made toothless and powerless and therefore, no Constitutional Amendment was required to remove it. Summary of game plan:-

A). Form Government in J&K to dissolve it at the appropriate time.

B). Withdraw support to empower the Governor.

C). Bring in dissolution of Assembly and bring in President Rule in J&K

D). Use Article 356 to empower the J&K Governor to take on “the rights of the dismissed J&K Parliament”.

E).Validate the power of Governor from Supreme Court after having ratified the new SC/ST bill amendment.

F).Use 1952 precedent to transfer power to the J&K assembly which in turn got transferred to J&K Governor.

G). President declares his right to abrogate 370 and simultaneously bills to make 370 / 35A toothless and powerless is passed in Rajya Sabha on August 5,2019 and Lok Sabha on Aug 6, 2019 both by 2/3rd majority.

With the declaration of Jammu, Kashmir and Ladakh as Union Territories, Prime Minister Narendra Modi has unambiguously turned the Regional Challenges into a strictly Internal Issue. As New Delhi’s writ now fully runs over J&K including Ladakh for all practical purposes, it renders United Nations Resolutions over the Kashmir dispute redundant. Since J&K no longer has a ‘Special Status’, it is just another integral part of India where no external opinion is relevant. The folding of J&K into the Indian Union more formally gives Modi Government, an ability to present its status as a ‘fait accompli’ to the Rest of the World with an argument that, “When it was needed, Article 370 was introduced and when its utility is gone it has been abolished”.

It is not clear whether Washington Administration and President Donald Trump had any direct knowledge/hint of what was afoot in Delhi. Trump’s plan to withdraw from Afghanistan after nearly 19 years is incumbent upon Islamabad sharing a significant amount of security burden, which in turn is affected by how much it has to remain committed on its East along Indian Border. American President made a claim that he was asked by Prime Minister Narendra Modi, to mediate in J&K, which has been flatly refuted by Indian Government/ Prime Minister Narendra Modi in no uncertain terms. Even before the abrogation, successive US government had no ‘locus standi’ in the matter other than occasionally advising India and Pakistan to resolve the dispute peacefully. After it, it has even less ability to tell New Delhi how to deal with a territory it officially declares part of the union.

Therefore; Pakistan Prime Minister Imran Khan’s brave but foolish boast about his maiden visit to Washington as Prime Minister of Pakistan stating, “As his country’s leader he felt as if he had won the Cricket World Cup”, is now risible due to fundamental reorganization of J&K. Imran Khan’s thought, “To free up Pakistan’s military resources from its Eastern border to focus on Afghanistan, American President Donald Trump would mediate with India over Kashmir” has come a cropper. Similarly, Pakistan’s assertions that “It will exercise all possible options to counter the illegal steps by India”, will not/are unlikely to move, any needles Internationally, especially in Washington, Moscow, Beijing and United Nations. This has put Pakistan in a particularly difficult situation since it effectively means/says that “India has chosen to do what it thinks is right”.

Does it offer an opportunity to India to advance and take POK, completely disregarding sizeable Chinese presence there? Who knows, things may be in pipeline for action by Air Borne Forces and would be unveiled at proper time. If the Nation has to honour the Resolution regarding Kashmir adopted in 1994 in Parliament, it must start preparations to this effect now. Presently, our Defence Forces do not have wherewithal to face Chinese wrath in J&K, but who knows, tide may turn in few years. As such, China has made lot of Halla gulla over remarks of Union Home Minister in respect of Aksai Chin while presenting the motion of abrogation in Parliament, which is the indicator of Chinese apprehensions regarding future Indian Strategic Plans and Ambitions.

Imran Khan had no way of anticipating this dramatic move of abrogation of Article 370/35A,so early into Modi’s Second Term even though it was part of the BJP Election Manifesto. In near/long term, there is not much that Pakistan can do as an effective counter to the move other than perhaps intensifying insurgency in the Kashmir Valley and Jihadi strikes across India. But, it is almost impossible because of vice exercised by Financial Action Task Force (FATF) that makes financing of Terror/Jihadi Groups operating in Kashmir impossible. It is no longer possible for Islamabad to revive a systematic proxy war by financing these Jihadi Groups and Sleeper Cells as both the International Monetary Fund (IMF) and the FATF work in concert to curb terrorist funding.

POK was vital to India in the initial years after 1947. Former Defence Minister V K Krishna Menon’s impassioned speech on elaborate defence of J&K, during his marathon UN speech in 1957 made repeated references to deceitful Pakistani occupation of this portion of territory. It was following this impassioned plea, India’s approach on POK revolved around accepting the ceasefire line and later, LoC as a ‘de facto border’ and perpetuating the territorial status quo. From “practical” considerations of ceding more territory to Pakistan during the 1960s Engagement during Zulfiqar Ali Bhutto Swaran Singh talks, to an alleged informal understanding on Maintaining Territorial Status Quo during 1972 ZA Bhutto Indira Gandhi Shimla Talks and Back Channel Diplomacy during 2005-2009 under Dr Man Mohan Singh, there was a virtual shift in the debate on Kashmir within India.

Though India stakes/has, low key standing claim on POK, it always claims that entire territory of the erstwhile Princely State of J&K is an integral part of India. Based on Instrument of Accession, the entire territory of what then comprised the Princely state of J&K, including what is since being referred to as POK, acceded to India. The accession was signed in India’s favor by the then ruler, Maharaja Hari Singh, on October 26, 1947. It is this Instrument of Accession that warrants India’s territorial control over the entire J&K. POK as portion of State Territory, comprising of so called Azad Jammu and Kashmir (AJK) and Gilgit Baltistan (GB), is under Pakistani control since the Tribal Raids during First Indo Pak War of 1947-48. Indian Parliament adopted a resolution in 1994 that “Whole of Kashmir including POK is integral part of India” because there is an umbilical link between India’s control over J&K and its standing claim on POK. What most of us don’t know is, Constitution of J&K contains a provision of 24 seats for the representatives of POK “until the area of the State under the occupation of Pakistan ceases to be so” and all these seats used to be kept vacant in/after every Assembly Election in J&K. In newly constituted J&K Assembly, Indian Government might as well nominate their sympathizers in Gilgit, Baltistan and piece of Kashmir under Pak occupation by name to overcome this hurdle.

The territorial aspects of the issue gradually assumed less significance in discussions as terror and violence abetted by Pakistan during late 1980s assumed centre stage. Prudent as it may have appeared to reconcile to the territorial status quo in the past, question arose that, whether such an approach has really worked in India’s favor. China Pakistan Economic Corridor (CPEC) gave India’s claim on POK a new lease of life. India has skillfully spun its reservations on the CPEC around the principle of Territorial Sovereignty and Integrity. With CPEC placed under China’s Belt and Road Initiative (BRI), asserting claims to POK has become a Strategic Necessity rather than an afterthought. It was perhaps owing to such compulsions that India’s inert and understated position on POK was rescinded by Prime Minister Narendra Modi’s reference to the territory during his Independence Day address in August 2016 and vocally ratified by Home Minister Amit Shah while presenting the Abrogation Bill in Parliament in August, 2019.

Public conversation on POK/Aksai Chin within India is uninformed since it is a stark reality that there is inadequate academic focus on POK/Aksai Chin in India. This is probably because they are considered academically irrelevant and less rewarding in comparison to a purely Valley centric discourse in Print and Electronic Media. Consequently, POK/Aksai Chin has remained under represented in the conventional discourse on Kashmir. What exists is a narrow view of Kashmir which tantamount to disclaiming POK/Aksai Chin, resulting in grave repercussions during future negotiations on the subject. That the scanty representation of POK/Aksai Chin as part of India has not translated into mass perceptions of POK/Aksai Chin as an integral part of India and the overall failure to mainstream POK/Aksai Chin in the Public Discourse can be attributed to inept handling of the issue by the Policy Makers in the past.

Finally, there is the external dimension. The constitutional and legal changes made today do not alter the status of Jammu and Kashmir which India considers an inalienable part. Notwithstanding the UN Resolutions, which are in any case recommendatory and not mandatory, and which have become redundant with the passage of time, India is well within its rights to make whatever constitutional and legal changes it deems fit, just as Pakistan has done in the case of Mirpur-Muzaffarabad belt as well as the Gilgit Baltistan belt of POK. Pakistan can scream and shout, probably ratchet up the violence through its terrorist proxies, but it cannot change the status of J&K. Most of all, the changes made today send a very strong signal to Rest of the World that J&K is non-negotiable and constitutes a core interest on which there will be no compromise. India’s red line has been reiterated and reaffirmed.

All things considered, including the outrage among few Opposition Parties in India over the way in which the abrogation was brought in, the decision is unlikely to face any decisive hurdles. World’s largest democracy, ending special autonomy to a state sandwiched between three nuclear armed neighbors and considered to be a flash point of living volcano of nuclear confrontation in the world, is a big deal that may/will not find any International Disapproval. On the other hand, it widely opens an array of future Strategic as well political opportunities to India in near future.