De-operationalising Article 370: A Strategic Paradigm Shift

  India crossed the Rubicon on 5^th August 2019 when the President promulgated an order to de-operationalise Article 370 and its adjunct Article 35A of the Constitution of India. Contrary to common perception,  this Article has not been scrapped. Ironically,  provisions of the Article itself were used to defang it ^[1]. Doing away with Jammu & Kashmir's (J&K) special status and splitting it into two Union Territories (UT) was executed in one fell swoop that left Kashmiri politicians and the separatists dumbstruck. While the process to gradually erode the special status of  J&K was set in motion in 1950,  de-operationalising the Article now culminated that process to fully integrate J&K into Indian Union.

Article 370 - Contextualising History.

Article 370 was introduced in the Indian Constitution on 17^th October 1949 as 'temporary provision concerning the State of Jammu & Kashmir' under Part XXI of the Constitution titled 'Temporary, Transitory and Special Provisions'. Article 35 A, a child of Article 370, was introduced through a Presidential Order in 1954, not as part of the main body of the Constitution but in its Appendix I. While Article 370 restricted  Indian parliament's powers concerning J&K to just three subjects, namely- Defence, Communication and Foreign Affair; Article 35 A empowered the state legislature to define permanent resident-ship rights and special privileges.

On one hand, Kashmiri politicians often held out Article 370 as a non-negotiable provision of the Indian Constitution that linked J&K to India. They often warned of serious consequences if the Article was tinkered. On the other hand, a narrative was assiduously built, since the days of Jan Sangh, to vilify Pandit Jawahar Lal Nehru for inserting Article 370 into the Constitution. History, they say, has many sides. Political myths have often tended to obscure historical reality. Resisting any temptation to be drawn into a political debate, suffice to state Nehru, Patel and Gopal Swamy Iyengar were all involved in long-drawn negotiations with Sheikh Abdullah to finalise the architecture of Article 370 ^[2]. 

Much before they departed from India, the British had strategised future scenarios. Fearing the rise of Soviet power, Lt. Gen. Francis Tuker observed ’it was necessary to place Islam between Russian Communism and Hindustan’ that ‘..(needed) introduction of a new Muslim power supported by the science of Britain’ ^[3]. Praveen Swami interprets Tuker’s views as geopolitical reality obtaining then. While West viewed India of little geopolitical significance, it realised Pakistan's strategic value ^[4].  To quote Late B.G. Verghese, a noted journalist, ‘Literature about the beginning of the conflict is not easily available in India today and (sic) discourse and even policymaking appears to rest on mere say-so and self-serving narrative’ ^[5].

Not to absolve Nehru of his share of the blame,  the truth about Article 370 is complex. It was authored in the backdrop of war, great-power intrigue, bewildering intransigence of Hari Singh and blood-soaked aftermath of the partition. It is pertinent to mention that in the context of Junagarh, the Indian government had committed to Pakistan that it was prepared to ascertain the wishes of the majority in those princely states where ruler’s religion was different than that of the majority population ^[6]. Further, during negotiations, Sheikh Abdullah had sought an ‘iron clad autonomy’ for J&K but that was not agreed to.  Subhash Kashyap, the Constitutional expert, maintains '…(of) temporary, transitional, and special (provisions in our constitution) temporary (provision)  is the weakest’ ^[7]. It was this ‘temporary’  status that helped nullify Article 370 now.

De-operationalising Article 370 and After

               Notwithstanding a clutch of petitions pending in the Supreme Court, challenging de-operationalizing of Article 370, the outcome is likely to be of academic interest alone. There seems no going back now. It is time we analyse the strategic and security implication of the move.

Strategic Implications.

Besides BJP’s ideological compulsions, the emerging regional security scenario seems to have hastened this constitutional amendment. Given the US commitment to exit Afghanistan, Pakistan has re-emerged as a key player in America's exit strategy. It would not be an overstatement to say Trump’s offer, to Imran Khan on 22 July 2019, to mediate on Kashmir expedited the Modi government's move to virtually scrap Article 370. Further, Article 370, in its original form, offered some credibility to Pakistan’s claim of Kashmir being a dispute. De-operationalising the Article and creation of two UTs helped India effectively counter China-Pakistan narrative about the status of J&K and Ladakh.

              

Geopolitical Reality.

The erstwhile undivided princely state of J&K had a unique strategic location. It shared border with China, Afghanistan, Pakistan, erstwhile USSR, and India. Today, the state is divided among India, Pakistan, and China. India holds 45% of the territory, China has 20% under its control while the balance is with Pakistan. Pakistan annexed territory under its control, called Pakistan Occupied Kashmir (POK), during 1947 Pakistani regulars led tribal invasion on J&K.  China occupied its part in the Ladakh region, firstly, through a silent cartographic invasion in the 1950s to annex Aksai Chin and later during the 1962 Indo-China conflict.

Pakistan ceded part of the Gilgit-Baltistan region’s trans- Karakoram tract, comprising mainly of Shaksgam Valley, to China under the Sino-Pakistan Frontier Agreement of 1963. Shaksgam Valley links Shia dominated Gilgit and Baluchistan in POK with Xinjiang, the Muslim dominated region of China. Strategically important Karakorum highway, linking Pakistan to Xinjiang passes through this area and it is part of China Pakistan Economic Corridor (CPEC) linking China to the Arabian sea at Gwadar Port in Baluchistan. It is a reality that India is the only country in the world today that is wedged between two hostile nuclear-armed allies.

Pakistan realizes that by scrapping Article 370,  India has forced a shift in the geopolitics of the region. General Q. J. Bhajwa admits so in ‘Green Book -2020’ wherein he says  “the Blakot airstrike and scrapping of Article 370 and 35A by the Narinder Modi government are two significant events that will have a lasting imprint on the geopolitics of the region’ ^[8].

Geo-Strategic Implications.  India’s decision to alter the status of Kashmir bears both external and internal implications.

US Pull-out from Afghanistan.

The US is fighting the longest war in its history in Afghanistan because of Pakistan. While Pakistan harbours the Taliban commanders and cadres and their command-and-control bases inside its territory, ironically, the US is hesitant to cross the Durand Line to take them on.  Pakistan, through its brutal proxies - the Taliban and the Haqqani Network, has compelled the US to negotiate the terms of its surrender in Afghanistan and seek Pakistani support for a face-saving exit ^[9]. With the elected government in Afghanistan side-lined, Pakistan has re-emerged as a frontline state for the US interests in the region, appropriating to itself an important role in this process and the implementation of the exit deal. Effectively, the Taliban would now catapult to a position of influence in the ruling disposition in Kabul. That would be ominous for India. With a likelihood of Pakistan- Taliban duo controlling Afghanistan, there is a distinct possibility of armed Afghan Jihadis crossing over to Kashmir to escalate violence.

       China’s Concerns. 

Carving Ladakh out of J&K  and declaring it a federally administered UT was a strategic masterstroke. Shell- shocked China protested that its territorial integrity was undermined.  G. Parthasarathy, noted foreign policy expert, claims ‘New Delhi now directly overlooks the areas connecting Tibet and the Shaksgam Valley to China’s troubled Xinjiang Province, where Beijing has treated its Muslim population brutally’ ^[10]. Ladakh, critical to the security of India's northern frontier, was so far under the administrative control of J&K’s political executive. New Delhi’s direct control over Ladakh would be a cause of serious concern for China. By this move, India has effectively de-hyphenated China-Pakistan combine from its border disputes. Amit Shah reiterated India's long-forgotten claim over Aksai Chin. It indicates a shift in India’s approach. That a strategic road, linking Tibet to with Xinjiang, runs through Aksai Chin could be leveraged by India as a bargaining chip in future border negotiations with China. Additionally, the fact that  CPEC passes through an internationally recognized disputed region would add to China’s discomfiture. A recent revision of foreign investment policy by India is mainly aimed at imposing an economic cost on China.  Consequent to its mismanagement of the COVID-19 pandemic, China’s economic woes are likely to increase further ^[11].

China may have concern over Pakistani military cozying up to US or about murmurs of dissatisfaction in Pakistan over high rates of interests of Chinese aid for the CPEC project, yet Pakistan has no choice but to stay its most loyal client. Pakistan requires China's security umbrella and diplomatic protection, especially at the UN.  Further, it requires China’s support at the Financial Action Task Force (FATF) that has included Pakistan in the ‘Increased Monitoring (IM) List’, commonly called ‘grey list’. 

                              Pakistan’s Dilemma.

Post dilution of Article 370, New Delhi has effectively forced a change in the narrative around the Kashmir dispute. With one stroke India has removed India held J&K from the bilateral agenda with Pakistan. Rajnath Singh’s statement that future bilaterals with Pakistan would only be about POK  indicates focus has already shifted across Line of Control (LoC) ^[12].

Notwithstanding her dilemma, Pakistan would do all it could to frustrate Indian efforts to restore peace and tranquillity in Kashmir. Pakistani military establishment is adept at finetuning their Jihadi strategy to keep Kashmir on the boil. With Afghanistan virtually under its control, to escalate Jihad in Kashmir.  Pakistan is bound to utilise Afghan Jihadi assets.  However, FATF ‘grey list’ may preclude it from escalating beyond a point to retain deniability.

Further, the Pakistani establishment is now convinced that India's 'policy of restraint' ended after the 2016 Uri attack when India responded with surgical strikes. This realisation was further reinforced with Balakot strikes when Indian Mirage 2000 not only crossed the LoC but the International Border (IB) too ^[8]. India must continuously upgrade its response to forestall challenges from across the border.  One way is to develop a counter-response that imposes huge costs on Pakistan. India also needs to cast aside hesitation to highlight Pakistani brutality in Baluchistan. Without building countervailing pressure points in Pakistan, it will be difficult to change strategic calculus in Rawalpindi.

Muted International Reactions.

Post stripping J&K of its special status,  Pakistan went on a diplomatic overdrive but to little avail. On the bilateral level, it also downgraded diplomatic relations, stopped all trading activity and permitting India only limited access to her airspace.

For the first time after 1971, Kashmir was discussed, on the insistence of China, on 16^th August 2019 in a closed-door huddle at UNSC. The US, Russia, France, Germany, and most non-permanent members supported India at UNSC. The votes against India by duplicitous Britain and Northern Ireland counted for nothing. Except for feeble protests by Turkey, Malaysia, and Organisation of Islamic Conference (OIC), the rest of the world remained indifferent. Diplomatic failure drove  Imran Khan to desperation to rant war and nuclear confrontation. Blunting the Pakistani diplomatic offensive with such finesse is a tribute to mature Indian diplomacy.

Political Agreements & Human Rights.

Pakistan and China lack legitimacy to criticize India for going back on a political agreement with people of J&K or to raise any Human Rights concerns. In 1951, a ‘Seventeen Point Agreement’ was signed between Tibet and China guaranteeing autonomy and non-interference from Beijing in Tibet's political system. While fleeing from China in 1959  Dalai Lama repudiated it,  by then China had violated every article of the Agreement and it had already lost legitimacy. Its ‘One China Policy’  is predicated not on any agreement but on their argument that Tibet was always a part of China.

Pakistan needs no reminder of its dismal record. Erstwhile Northern Areas comprising Gilgit-Baltistan, are directedly administered by Islamabad as Federally Administered Northern Areas (FATA). Locals of the area have no political rights and live under the boots of the Pakistani military.

On the Human Rights front too, both are equally brutal. China, with over a million Muslim Uighurs in Xinjian province virtually under detention, has no moral authority to raise the Human Rights concern of Kashmiri Muslims. Pakistan is tight-lipped about the atrocities on Uighur Muslims or brutal use of force on protesters in China administered Hongkong demanding a democratic setup. Pakistan's brutalities on Shias of Gilgit-Baltistan, Balochis, or in other FATAs should shake its conscience before raising any concerns about Kashmir.

Internal Security Implications.

After dilution of Article 370 by the Centre, unprecedented deployment of security forces, complete communication lockdown and largescale arrest of political leaders and separatist cadres ensured effective sealing of Kashmir Valley to contain violence. Kashmir remained largely incident-free. Centre’s move dazed Kashmiris beyond words. No sooner were some leaders set free, security presence reduced, and communication blockade eased than the advent of COVID-19 pandemic re-imposed severe restriction in the Valley. Nonetheless, the internal security of J&K remains a cause of serious concern for the security establishment.

Of late, gunfights with insurgents have picked up as have the attempts by Pakistan-based Jihadis to infiltrate across LoC. Incidents of violence are bound to increase. Be it at the LoC or inside J&K, India can't afford to let its guard down. With no political patronage now available to forces inimical to Indian interest in Kashmir and New Delhi now administering  UT directly, response to security threats is likely to be swift and telling.

Political Implications.

Opponents of the Centre’s decision claim the move would further alienate Kashmiris,  provide new propaganda tools to insurgents and offer diplomatic ammunition to Pakistan. Until now no such apprehensions have proven correct.

Critics also feel the move to downgrade and split the state into two UTs has put a question mark over India’s federalism. This apprehension is not entirely misplaced. With weak/non-existent opposition at the Centre, effective checks and balances are missing. If new Delhi promotes its centralising instincts, regional political entities, representing regional aspirations, are likely to be reduced to the margins.  Shyam Saran, former Foreign Secretary, says ‘This opens up a dangerous precedent that may strike at the very root of Indian federalism. It is conceivable that in future, a central government determination of a breakdown of law and order may be used to impose governor’s (sic) in a state, using the same procedure as applied in J & K, reduce it to UT on security ground’ ^[13]. But this is a subject beyond the scope of this discussion.

Kashmiris’ Concern.

Kashmiris are extraordinarily aware lot and intensely emotional about their identity. Though tight-lipped, they grudge at having been divested of ‘autonomy’ - whatever was left of that. Delving deep into their minds, their main apprehensions are about jobs, land, political rights and identity issues.  Main concerns, like jobs and land issues to some extent, find resonance in the Jammu region too.

Jobs.  According to the Centre for Monitoring Indian Economy (CMIE), ‘Jammu & Kashmir’s monthly average unemployment rate, between January 2016 and July 2019, is 15 percent. It is more than double the national monthly average unemployment rate of 6.4 percent during the period ^[14]. Ministry of Home Affairs (MHA) order reserving only Level IV jobs for the locals raised concerns not only in Kashmir but also in the Jammu region where BJP has its electoral stakes. Though the Central government panicked to withdraw the order to restored job reservations for all levels, political opportunism was manifest. Suspicion still lurks in the Kashmiri minds.

Land.  MHA has promulgated J&K Domicile Law restricting domicile status only to only those outsiders who have lived in the state for 15 years with some relaxations for students and employees of central services working in J&K. Kashmiris feel that new law is aimed to bring outsiders to settle in the Valley, to change its demography. They feel such attempts would be packaged as development projects.

Identity. For Kashmiris identity concern is mainly about ‘religion’. Purely from the standpoint of traditional syncretic  Islam in Kashmir,  concerns about ‘religious identity’ are misplaced.  In the last three decades, tolerant Islam in Kashmir has been overwhelmed by Wahhabization/Arabization of the Muslim society.  That is the reason for intense conflict in the Kashmiri psyche.

Exaggerated statements like one from Union Minister G. K. Reddy that government had ordered survey of’50,000 temples’ that had either been closed or destroyed in Kashmir Valley ^[15] did not help allay local fears about the Centre’s intentions. The estimates about the number of temples in J&K vary, some even claim numbers as low as 4,000 ^[16].

 Fresh Delimitation.  That BJP announced fresh delimitation of constituencies in J&K has not gone unnoticed in Kashmir as an attempt to s shift political clout South of Pirpanjal. Admittedly, existing delimitation is a fraud perpetrated on the Jammu region by the  Kashmir centric political caucus. Redrawing of constituencies is bound to shift the political balance to the Jammu region provided this exercise is undertaken in tandem with a fresh census. However, the Centre’s decision to redraw constituencies based on the 2011 census is baffling and a futile exercise.

Public Safety Act (PSA). PSA Act, the brainchild of Sheikh Abdullah,  father and grandfather of Farooq and Omar respectively, ironically was used to incarcerate Sheikh’s progeny. That aside, the continuation of this draconian law under the new regime has unnerved the Kashmirs.

Corruption & Governance. On 5^th August 2019, Amit Shah claimed in Rajya Sabha that Article 370 was the root cause of corruption, terrorism, and alienation of the state. ^[17].  Locals, especially the farmers, are highly critical of such claims and maintain that rampant corruption continues after dilution of Article 370 ^[18].

Kashmir Pandit (KP) Rehabilitation. The exodus of KPs from the Valley is modern history’s most successful and swift ethnic cleansing operations. Locals have not missed the message that BJP has used KPs for electoral gains only and has done precious little in the last six years to reverse their exodus from the Valley. Centre’s rehabilitation rhetoric is seen by Kashmiris as a ruse to resettle non-locals and ex-servicemen in the Valley.  Hence there is stiff resistance to their return. A widespread rumour in the Valley claims thousands of non-locals are being coached in Kashmir language in Nagpur to push them into the Valley as KPs. However, this fact could not be verified. Even KP leaders seeking residency rights for those KPs who migrated from the Valley as early as in 1931 ^[19],  though a justified demand, has further raised doubts in the Valley about New Delhi’s intentions.

Way Ahead.

            While defanging Article 370 is a step in the right direction, security concerns in J&K shall continue to remain paramount for a long time. Pakistan will not stay away from Kashmir for too long. Signals emanating from Pakistan point to an increased threat from  ‘non-state actors’ whose response ‘could be unpredictable and unrestricted’. Simultaneously, there are calls in Pakistan to unleash ‘information warfare’ on the Kashmir issue and to raise ‘Kashmir Fund’ ^[8]. India needs to be vigilant.

‘Wabbisation/Arbanisation of Islam radicalises society. This threat in Kashmir is real and needs to be reversed. Direct administration of Ladakh by Delhi has effectively checkmated Chinese muscle-flexing in the region.

New Delhi has to realise that firming up territories alone does not usher in peace, tranquillity and development in a conflict zone. Ultimately, Kashmiris have to be won over not by doles, freebies or appeasement but through effective and corruption-free governance. The Central government must put in place an effective outreach mechanism to address peoples’ grievances in J&K. There is a need to overhaul the entire administrative setup in J&K to weed out those who have developed vested interests in Kashmir turmoil.

Mistakes of the past must not be repeated. New Delhi must not impose a political outfit or an individual in J&K. Such measures, in the past,  have often unleashed competitive communalism in the Valley. Centre’s patronage to  Peoples Democratic Party (PDP) is a recent instance. Continuation of Central rule would be a better option until credible political outfits emerge on their own.

            Lastly, there are vast numbers from Kashmir who are languishing in tenements outside the Valley for the last three decades. Surprisingly, successive governments have neglected their plight and rights. Taking care of their economic and political rights and their security concerns, those Kashmiri Pandits who are willing must be rehabilitated in the Valley. They would prove to be an asset to the nation in the future.

Notes:

1. Dr. Faizan Mustafa, leading Constitutional expert: Interview to Karan Thapper  https://m.youtube.com/watch?feature=share&v=efpofIKxjeE.
2. Srinath Raghavan: ‘Myths’ around Nehru’s Kashmir Policies- National Herald, 14^th November 2019.
3. Lt. Gen. Francis Tuker: ‘While Memory Serves’, first Edition 1950.
4. Praveen Swami: Secret life of Article 370: Nehru’s use of ruthless force to integrate Kashmir behind the veil of ‘special status’ offers lessons for today- Firstpost, April 12, 202.
5. B. G. Verghese: A J&K premier: From Myth to Reality, 3^rd March 2007.
6. Srinath Raghavan: ‘Myths’ around Nehru’s Kashmir Policies- National Herald, 14^th November 2019.
7. Economic Times: Article 370: Why is Kashmir tense about it & what can India do, August 5, 2019.
8. Snehesh Alex Philip: Balakot, Article 370 Changed geopolitics of the region: Pakistan Army Chief in ‘Green Book’, The Print, April 27, 2020.
9. Brahma Chellany: After Article 370 – Open Online Magazine, 23 August 2019.
10. G. Parthasarathy: India’s bold action, new posture take Pakistan and China by surprise, The New Indian Express, April 11, 2020.
11. The Guardian, UK Edition, April 28, 2020: ‘Trumph says China Could have stopped Covid-19 and suggest US will seek damages’.
12. https://www.ndtv.com/india-news/talks-will-be-on-pok-says-rajnath-singh-after-pak-needles-india-on-jammu-and-kashmir-2086715
13. Shyam Saran: Morning After- India needs to be prepared for the external and internal its own decision to ‘dilute’ Article 370, India Today, August 6, 2019.
14. Nitin Kiran: J&K among top 5 states with high monthly unemployment rate, India Today, August 6, 2019.
15. Article 370 gone, Modi government plans to reopen 50, 000 temples closed in Kashmir, the Financial Express, September 23, 2019.
16. Mudasar Wani: ‘How can Modi government reopen 50,000 temples in Valley, when there are only 4,000 in J&K’, The Wire, October 5, 2019.
17. Chaturvaidi, ‘Article 370’.
18. Ayaz Wani: Life in Kashmir after Article 370 – ORF, January 28, 2020.
19. Daily Excelsior: KPS (Kashmiri Pandit Sabha) submits memorandum to LG’, April 22, 2019.