The issue of Jammu and Kashmir has been an intractable one ever since India gained independence. Many people have tried to resolve it and failed and this article is not going to solve it either. There has been a change in status quo though in the past year after the revocation of Articles 370 and 35A with the removal of statehood after acts pertaining to the same were passed in the Indian Parliament with cross-party support. As Indians, now is time to take stock of what that has brought us after a year. Hence, if we find that the situation has gone downhill over the last year, rationality dictates that an attempt must be made to update our contexts locally and globally and shift our perspective, lest it presents the possibility of a better resolution. An effort is being made here to study the same from the perspective of a common citizen and not an expert, because of the firm contention the author holds that empathy of one for other people will lead to a better path than realpolitik from experts. Furthermore, all considerations are presented here from a moral standpoint, at the sole judgment of the writer, and not a legal standpoint.
The Three Religions and Regions and where they stand a year on
Jammu and Kashmir lies at the intersection of three cultures and religion. Coming from the West into Kashmir, it represents the Eastern front of a continuum of Islamic majority. To the East in Ladakh lies the gateway to Buddhism which stretches beyond India’s borders into Tibet and the Far East. And from Jammu moving south is the Hindu majority land of the Indian subcontinent. This unique triumvirate of culture and religion constitutes what was known earlier as the State of Jammu and Kashmir. Each part reacted differently initially when the abrogation of Article 370 was announced.
In Kashmir, amongst Muslims, the initial response was universally against the removal of the special status of the region. They feared that it would be used to brutalize the native population. Kashmiri Hindus were generally more willing to accept the change, with minor exceptions but no outright dissent, as they saw Article 370 as a roadblock to full integration of Kashmir into India and their return to the valley. Jammu also predominantly welcomed the move as did Ladakh, though in the case of the latter it split between ethnic lines again in the Muslim dominated Kargil sector vis-à-vis the Buddhist dominated Leh district. This refutes a common misconception that the will of India was foisted upon Jammu and Kashmir as the reaction of two of the three regions was generally in favor of the move. However, the implementation was not ideal as the region which contributes to the majority of the population were not consulted in the process.
Moving to this year, though, we see a slight shift in attitudes. Kashmiri Muslims remain firmly opposed to the abrogation of the special status. There have been some agitations by Kashmiri Hindus against the abrogation of Article 370 as well. Jammu also realized that the openness of union territory impacted them equally when it came to jobs and possibly even more so when it came to land. Ladakh has also seen the removal of a legislature as a diminishment of its representation along with the same fears of outsiders coming in, on top of a direct threat from China, which has made them reconsider their initial choice. So, it seems that now all the stakeholders are showing a trend of moving away from the central government’s and Indian legislature’s position as taken last year and that is worrying, especially in a border area surrounded by two hostile powers.
The Plight of the Kashmiri Hindus and Jammu Muslims and the Sequitur of Demographic Change
In the previous section, it has been highlighted that the primary reason all stakeholders seem to be moving away from the abrogation of the special status is because of the threat to local opportunities from outsiders. To understand this sentiment, one must look at two distinct periods in the history of Jammu and Kashmir and two phases of population displacement.
Just as Indians fought against the occupation by the British and the princely states aligned with the British, so did many the people of Kashmir. In their case, the princely state aligned with the British happened to the Dogra Hindu kingdom and the majority population happened to be Muslim. After the British left the country and when the state of Jammu and Kashmir had still to accede to India, the mass migration and murders associated with the Partition were playing out mainly on the Western Border of India. As Pakistan became an Islamic republic, those who were considered heretics and infidels, were slaughtered in West Pakistan, though in the East they remained safer, and contrary to common knowledge, their percentage in West Pakistan had already fallen to below 2% when taken in the 1951 census.
India also saw widespread attacks on Muslims as they left for Pakistan but a secular state guaranteed their safety better and 10% of Indians were Muslims in the 1951 census, which excluded Jammu and Kashmir. In Jammu and Kashmir though, when the British aligned rulers got the chance prior to its accession to India in the Jammu region where they had their strongholds, they carried out a systemic massacre which converted the Muslim majority to a Hindu majority region.
The other tragedy played out in the exodus of Kashmiri Hindus over the late 1980s and early 1990s. As the insurgency in the valley increased fuelled by the opening of an Islamist terrorist front as the Cold War drew to a close, Kashmiri Hindus were driven away from their own homelands and had to settle in other parts of India, mainly Delhi and Jammu. This forced exodus of Hindus from the only Muslim majority state in a Hindu majority nation shattered the relative peace between the communities not only in Kashmir but it convinced a lot of Hindus in India that whenever Muslims would get an upper hand in any place, they will drive the Hindus out. The continued roadblocks to the resettlement of Kashmiri Hindus, even as late as 2016, by Kashmiri Muslim leaders, is perhaps one of the reasons why the abrogation of the special status of Jammu and Kashmir passed with cross-party support. It is in this backdrop that the continuous fears of demographic changes become vivid in Jammu and Kashmir where the fear remains and the distrust is entrenched that any move by the “others” or the “outsiders” is in the aid of changing the demographic composition of that place. The current government composition without local representation hardly helps dispel the notion.
However, a truly liberal and secular nation cannot prohibit the movement of people based on religion to any part of the country. Just as it is illiberal to consider demographics change when Hindu nationalists say it, it remains wrong when members of another religion say it too. Therefore, the removal of Article 35A, which prohibited the buying of land and movement to Kashmir, is to be appreciated but the fear that all the groups are feeling when they see jobs and other opportunities being advertised with open entry requirements, which allow people from any other state to apply, must be removed. Hence, it is imperative that to protect the local population by granting statehood to each of Jammu, Kashmir, and Ladakh so that they have their own state legislatures, which can draft laws like any other state and have their respective commissions and civil services to provide jobs to the local population and also create jobs with the welfare of their constituents in mind.
The Honour of a Contract
When Jammu and Kashmir legally acceded to India, it made all claims to it by other nations invalid for the land ruled by the ruler at that time. This is how all other princely states entered into agreements with either India or Pakistan and therefore there is no reason to interpret this any differently. It is for that reason, this writer contends, that the continuous interference in these matters by Pakistan and China and attempts to internationalize what is an internal issue of India have no legal standing. But for India to be able to maintain that posture, it must honor the contract that was signed. The contract specified certain terms and temporary provisions that were deemed permanent by the Honourable Supreme Court. The Instrument of Accession gave power to India on three matters: defense, foreign affairs, and communications and left all other provisions to the states to frame as part of their own state constitutions. While others states accepted the Indian constitution, since Kashmir was a special case of a Muslim majority state voluntarily choosing to intertwine its destiny with India over Muslim majority Pakistan, it refused to accept the Indian Constitution, as it had the full right to, beyond the three matters as given previously. Hence, without commenting on matters sub-judice, for which anyhow the author lacks legal expertise, just by considering the morality of it all, India must honor its contract to the people of the region and not make any changes by Presidential decree unless consented by representatives of or by the people over there.
The Spirit of Federalism and Devolution – An International Context from Scotland to Catalonia
Talking of the representative government of the people of Kashmir, since the abrogation of the special status last year, there has been no elected government in Kashmir. Very recently, one of the state leaders was consigned to a further time under house arrest. This makes it impossible to hold elections for a representative legislature. While certain leaders from the center have asked for political participation and blamed state leaders for not participating, there is neither a schedule nor an atmosphere as it pertains to open campaigning by all political leaders for a free and fair election. As long as this is not corrected, the people of Jammu, Kashmir, and Ladakh will continue to feel alienated. I presume that all other Indians would be pretty unkind to the center if it were to suddenly suspend an upcoming election and impose the rule of the Centre on the State without giving the choice to the people to choose. Even internationally, we have the case of East Pakistan’s independence to form Bangladesh and Indian involvement in the war which cautions us to such an approach. They also had strongmen leaders who ruled West Pakistan at that time and prohibited representation for the Bangladeshis which led to the freedom struggle and India getting involved. The parallels of a strong-armed approach towards Kashmir without political representation with China lurking in the background to get involved is eerily similar and India must not make the same mistakes which led to ignominy for West Pakistan.
While assuring the basic functioning of our democracy by holding state elections is the first step, we must look at other global parallels to determine how to make our union with Kashmir even stronger if, as I believe, that should be the objective. A contrasting case study stands between Scotland and Catalonia in Europe. Scotland has a separate Parliament which makes laws for Scotland separate from the UK Parliament. It has the right to legislate on all matters apart from those that are reserved to the Parliament of the United Kingdom and power has been continuously devolved with successive acts in 2012 and 2016. Due to continued devolution and promise of devolution, when the referendum on Scottish independence took place in 2014, the people of Scotland voted to stay with the Union. Meanwhile in Catalonia, following the rule of a strongman Franco who wanted assimilation of all local cultures within the dominant Spanish culture, and the continued rejection for allowance of a referendum for determining Catalonian independence, an unrecognized referendum found that over 90% of the Catalans had chosen independence, the fallouts of which continue even to this day.
A Lament, but with a hope for a Shared Future
Having made the case above, as I see correct morally, it must now be seen what steps must, therefore, be taken.
First, just as we have divided erstwhile princely states on the basis of language and ethnicity, the erstwhile state of Jammu and Kashmir must be divided into three separate parts: Jammu, Kashmir, and Ladakh. Kargil could be included with Kashmir based on a shared religious majority. The rationale for this seems obvious since they do not see their destinies interlocked with each other and have had different reactions to the changes in the previous year.
Secondly, since all the areas have a common fear of lack of opportunities for locals, all the regions must be granted statehood, so that jobs are not eligible based on union territory rules. However, it is here that illiberal provisions like Article 35A should not be reconsidered which infringe on the movement of people, with an exception for members of Armed Forces who should not be allowed to buy land because they are not thereby volition but because of duty.
Thirdly, devolution as promised by Article 370 must be honored for the purpose of a stronger union with India. Each region can then be given a referendum whether they choose to remain under Article 370 or not and accordingly it has to be kept or waived. What India should negotiate with the local legislatures is adding the issue of minority rights as something that would be part of the remit of the Indian Parliament due to the experience with Kashmiri Hindus over the past many years. Apart from that, the local legislatures should have the full right to make laws on anything and to prevent encroachment on such provisions, as happened in the past, terms should be inserted that any changes subsequently can only be done with the consent of the local population through referenda and not just the government because in cases of Presidential Rule, the local government and the central government are effectively the same.
It is lamentable that Kashmir which has an inseparable history with India should so long be in the thrall of separatism. But for that separatism to subside, India must take steps to allow for devolution as was promised to them when they acceded. We must realize that granting greater autonomy increases the strength of the union between us and does not diminish it. We must work towards that at the earliest so that these uniquely Indian people of multiple ethnicities and religions, who voluntarily chose a secular India over a Muslim majority nation, do not come to regret it any further.
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