Be warned: In Kashmir, the day after Article 370 is abrogated will look like any other day

  • For all the passion it ignites, Article 370 is something of a straw man. Kashmir’s constitutional exceptionalism existed as a kind of comforting fiction

  • Had Article 370 been rigorously enforced, Jammu and Kashmir’s residents wouldn’t have Fundamental Rights, or be able to elect Members of Parliament

  • The Supreme Court and Election Commission of India wouldn’t have jurisdiction. But they do — and that’s key to understanding the Article 370 story

Lovingly tended by the Signor Benventui and Signor Bassi,  the great swathes of Medoc and Barsac grape draped along the Dal Lake ripened, under the gentle Kashmir summer, waiting for the press to release its notes of saffron and sycamore. “The vines were introduced from the Bordeaux district in Maharaja Ranbir Singh’s time”, the colonial administrator Walter Lawrence recorded in 1895, “and no expense was spared to make the scheme a success”.

“A wretched apology for the generous liquor”, the traveller Geoffrey Vigne called the wine served to him by Colonel Mihan Singh, Kashmir’s governor, as the two watched nautch girls in the Shalimar gardens in 1835.

The maharaja evidently took the insult to heart. “Kashmir wines, too, are no longer to be despised”, Marion Doughty trilled in 1901, as she travelled through the region, “and their Medoc and Barsac are both strengthening and pleasant to the taste”.

Prime Minister Narendra Modi’s historic decision to sweep away Kashmir’s special constitutional status seems, to many Indians, to offer a way back to that lost paradise. Immigration, investment, and firm Central rule, his supporters hope, will undermine the basis of the three-decade old Islamist insurgency, and build a new kind of Kashmir that isn’t founded on ethnic-religious identity.

New Delhi’s decision to abrogate Article 370, though, likely seduces only to disappoint. The government’s move isn’t, as some ethnic-nationalists and Islamists in Kashmir insist, the eve of an apocalypse — but it’s going to do nothing to help end the grim war in which India is mired, either.


For all the passion it ignites, Article 370 is something of a straw man. Kashmir’s constitutional exceptionalism existed as a kind of comforting fiction. Had Article 370 been rigorously enforced, Jammu and Kashmir’s residents wouldn’t have Fundamental Rights, or be able to elect Members of Parliament. The Supreme Court and Election Commission of India wouldn’t have jurisdiction. But they do — and that’s key to understanding the Article 370 story.

Hammered out during the negotiations between former prime minister Jawaharlal Nehru and Sheikh Muhammad Abdullah, Article 370 made six special provisions for the state.  Key to them were a giving Kashmir its own Constitution; and restricting Parliament’s authority to legislate to defence, external affairs and communications.

 Be warned: In Kashmir, the day after Article 370 is abrogated will look like any other day

Representational image. PTI

In addition, Article 370(2)  required that Kashmir’s Constituent Assembly ratify constitutional provisions to Jammu and Kashmir — theoretically making any changes impossible after 1954.

From 1952, though, Sheikh Abdullah’s relationship with Nehru soured, as a consequence of fears the Kashmiri leader was seeking independence. Kashmir’s new premiere, Syed Mir Qasim, steered the Constituent Assembly to accept a 1954 order by the President of India that widened the jurisdiction of Parliament, and made the Fundamental Rights of Indians applicable to state residents, too.

New Delhi, armed with this new power, passed some 42 Presidential Orders restricting the powers of the state legislature, and widened the domain of Parliament. Emergency powers that were applicable in all other states came into force in Jammu and Kashmir, too. The All India Services gained entry, as did the Election Commission of India.

This very presidential power has allowed President Ram Nath Kovind to deem Kashmir’s legislative Assembly to be its constitutional Assembly. Lawyers will doubtless argue the point for years — but for now, this gives Parliament the power, in place of the suspended legislative Assembly, to repeal Article 370.

Kashmir’s special status, clearly, amounts to little: Of 395 Articles in the Indian Constitution, 260 are applicable in Jammu and Kashmir; the remaining 135 are Articles for which there are identical provisions in the Constitution of Jammu and Kashmir. Merely three of the 97 areas listed in the list of Union powers in the Indian Constitution are still inapplicable to the state.

Indeed, it’s easier for Delhi to impose its will on Kashmir than elsewhere in the country. Faced with an insurgency in Punjab from 1987 to 1992, Parliament had to move four constitutional Amendments to extend President’s Rule. In the case of Jammu and Kashmir, it merely required Executive Orders to be issued under Article 370.

The question now is: What will Delhi do with the powers it has in the new Union Territory of Jammu and Kashmir it will govern?


Xinjiang, China’s great experiment in stamping out Islamist secessionism through demographic change, hovers over India’s debates on Kashmir. Following the repeal of Article 370, New Delhi plans to move to repeal Article 35A, which prohibits those not descended from the pre-1947 population the right to buy land, and hold government jobs. New Delhi’s hand-picked bureaucrats will tightly supervise governance in the new Jammu and Kashmir; they will no longer be accountable to corrupt politicians.

From 1957 to 1967, Beijing funnelled some two million ethnic Han into the Muslim-majority region, following that up with another, private-sector driven surge in the 1990s. In 1945, the Han accounted 6.2 percent of Xinjiang's population. Ever since 1982, their numbers have hovered around 41 percent, or higher.

This great demographic transformation, though, was built on the back of hard cash. From 2000 to 2009 alone, fixed investments in Xinjiang added up to  1.4 trillion Yuan — $200 billion — more than 80 percent of which came from the Central government.

Employment data for Xinjiang shows just 3.3 percent of people were out of work last year, half that in India, or the dismal 12.3 percent in Kashmir — India’s worst. Kashmir’s population includes just 1.3 percent migrants from other states, comparable with Bihar. It isn’t property rights that are keeping away migrants, but a lack of jobs.

The simple truth is India just doesn’t have China-like reserves of cash to re-engineer Kashmir. Though some elites might buy summer homes — as some have long done, through legally-dubious leases — there is going to be no flood of migrants or investments until the economy revives.

But money isn’t sentimental: The economy won’t revive until there’s stability and peace.

Xinjiang, moreover, hasn’t actually bought peace. Ethnic clashes are commonplace. Tens of thousands remain in concentration camps, which have brought China international condemnation and investment boycotts. Twenty thousand Uighur Muslims from Xinjiang have occupied entire villages in Syria’s  Zanbaq and Jisr al-Shughour—waiting to return home, via Afghanistan, when circumstances allow it.

Force will be needed for that — and New Delhi has to think hard about how to use it.


“Things got a little out of hand,” a former Kenya Regiment officer reminisced of the time he brought a Mau Mau insurgent into the interrogation centre at Embakasi, near Nairobi. “By the time I cut his balls off, he had no ears, and his eyeball, the right one, I think, was hanging out of its socket. Too bad, he died before we got much out of him.”

“It is easy to work oneself up into a state of pious horror over these offences”, a judge later said, “but they must be considered against their background.”

Following the reduction of the state of Jammu and Kashmir to two Union Territories, some have argued, New Delhi will now be free to pursue relentless military force, and bring about the conditions that will allow for economic and demographic reconstruction. History teaches us that they probably need to think again.

Imperial Britain, we know, thought much the same. Following a Mau Mau ambush at Kandara in 1954, the historian Caroline Elkin has recorded in her masterwork Imperial Reckoning, local residents were stripped naked and beaten; others were shot. The dead were buried under the main road; blood oozed out of the tarmac for weeks. In the end, though, mass castrations, rapes, and the depopulation of the Kikuyu reserves, Britain had to leave Kenya — a generation earlier than planned.

The United States' campaign against insurgents in the Iraqi city of Fallujah led to the levelling of between two-fifths and a third of the city’s buildings, and the death of over 1,000 civilians. The consequence of the Iraq war’s savagery is the obscenity we call the Islamic State. The Soviet campaign in Afghanistan, which involved devastating the countryside and killing millions, also ended in defeat.

For years now, Indian counter-insurgency experts have tried almost every option force offers in Kashmir — only to, without exception, conclude that force alone offers no solutions.

Article 370, in essence, marked an historic compromise between Kashmir’s elites and the rest of India, offering the region ethnic-religious autonomy in return for joining India instead of Pakistan. In 1952, when the Nehru-Sheikh Abdullah relationship fell apart, New Delhi could turn to others, like GM Bakshi or GM Sadiq. Kashmiri leaders like former chief ministers Omar Abdullah and Mehbooba Mufti provided a counter-narrative.

There’s no doubt the compromise underlying Article 370 was profoundly flawed. Ethnic-religious chauvinism, unleashed by revivalist movements in the 1920s and nurtured by Partition, grew relentlessly — leading Kashmir to the edge of the abyss. The political leadership it spawned by incompetent, and venal.

But now, the entire political spectrum — from pro-India parties to secessionists — are united against India. Pro-India parties are discredited in the eyes of their constituency. The idea that a secular, democratic India might be Kashmir’s future has no credibility left.  For jihadists, this is a gift: It’s safe to say organisations like Al-Qaeda will find it easier to recruit than ever before for the war they have promised to wage against India’s cities.

Proponents of Modi’s idea of a root-and-branch transformation in Kashmir hope it will pay off in years, or decades, or generations. Perhaps it will — but hope isn’t policy. The truth is, Kashmir will look much the same tomorrow as it does today — and that is the reality India will have to tackle.

For three generations, Kashmiris have gazed out at India, fearing a Hindu nationalist genocide. For three generations, Indian Hindus have gazed at Kashmir, fearing a jihad without end. Both might be closer to realising their nightmares than we care to imagine.

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Updated Date: Aug 06, 2019 07:35:40 IST