An amendment to an existing law pushed through by the Narendra Modi government has exacerbated fears in the conflict-ridden state of Jammu and Kashmir (J&K) that the local population could be swamped by “outsiders.” For India’s only Muslim majority state, such a move seems an existential challenge.
It all began last week when Parliament passed the Jammu and Kashmir Reservation (Amendment) Bill.
Following the general elections, the Bharatiya Janata Party with its hardline Hindu nationalist ideology enjoys a massive majority. As a result, any move by the federal government is viewed with great suspicion by a state that has seen nuclear-armed India and Pakistan go to war four times. An armed insurgency since 1990 has claimed over 100,000 lives.
The current amendment to an existing law seems innocuous enough on its face. The state shares a small border with Pakistan that is formally recognized. The majority of the border is known as the Line of Control (LoC), where the Indian and Pakistani armies face off in daily firefights. The existing law had a special affirmative action jobs reservation for all those who resided along the LoC. The amended law extends this benefit to those who live along the formally recognized international border as well.
The former chief minister of the state, Omar Abdullah points out the key problems with the amendment. “Till now the people living in areas adjoining LoC would get 3% reservation,” he told Asia Times. “Now they have to share this 3% with people living in areas adjoining the International Border. The Act in real terms disempowers LoC people. They are worse off under the new Act.”
Regarding issues of need, Abdullah added: “International Border areas are urban or suburban while the LoC people don’t have access to key services.”
Old fears, new bottle
But this is not the only fear that Muslims in Kashmir feel. The greater fear is of an assault on a constitutional provision that gave the state a “special status.” Article 370 of the Indian Constitution prevents any demographic change and bars “outsiders” from buying land and becoming permanent settlers.
The state has been under federal rule after the BJP pulled the plug on a four-year-old coalition with local government. This has exacerbated fears of the federal government using its brute majority in parliament to push through such an amendment.
During debate on the amendment bill union Home Minister Amit Shah said, “As far as the question of 370 is concerned, you must know that it is mentioned as temporary in the constitution and not permanent.” This, he said, “was done in agreement with” the state’s chief minister at the time, Sheikh Abdullah.
Shah was echoing his party’s long held wish to encourage newcomers to settle in the state and bring about a demographic change.
Kashmir is a legacy of the partition when colonial Britain hastily departed, leaving behind a divided subcontinent that immediately plunged into war. According to law, independent kingdoms and principalities were free to either choose either India or Pakistan.
The king of Kashmir first chose neither country. However, as armed tribals from Pakistan invaded the state, Hari Singh appealed to India to help. He signed the instrument of accession to India, formally making his kingdom a part of independent India.
The conflict sparked into the first war between India and Pakistan. After a stalemate for a year, a UN-monitored ceasefire allowed Pakistan to hold on to one-third of the state, while the rest remained with India.
However, Singh was unpopular and a poor fit with democracy. Sheikh Abdullah, the state’s most popular leader, took over as chief minister of the state, and when the Constitution came into being, Article 370 allowed it “special status.” After him, Sheikh’s son Farooq and his grandson Omar served served in turn as chief minister for a long time.
While Shah believes that Article 370 is “temporary,” Alok Prasanna, a constitutional lawyer, disagrees: “Article 370 is not temporary as Amit Shah said during the debate. There are a number of precedents which show that it’s a permanent part of our constitution.”
As recently as 2018, the Supreme Court clarified the status of Article 370. It ruled that the provision conferring special status on Jammu and Kashmir and limiting the central government’s power to make laws for the state had acquired permanent status. “The Court bench cited its 2017 judgment in the State Bank of India vs Santosh Gupta case and said the controversy over Article 370 was settled [and] acquired permanent space in the Constitution and it could no longer be abrogated,” Prasanna said.
Interestingly, India’s top court also made a very significant observation as the basis for its judgment, Prasanna added. ” If Article 370 is to be abrogated,” he said, “then it would need the mandatory assent of Kashmir’s Constituent Assembly. However, that is not possible because the assembly has ceased to exist and a new state legislature has taken over. This, the Supreme Court pointed out, has ruled out any possibility of getting the erstwhile assembly’s assent to abrogate Article 370,” he said.
A Constitutional commitment
In the agreed instrument of Kashmir accession under Article 370, India’s central government was given control of foreign affairs, defense and communication. Legislative and executive spheres were left for the state assembly to decide upon. Hence, any central policy has to be approved by the state assembly. But in the absence of the assembly the state’s governor has to approve it. Having the BJP’s federal rule by the president in place – it has been extended further to six months – erodes the autonomy of the state and its elected legislature.
“Article 370 applies Article 1 to J&K, that declares it mandates that the state will be an integral part of India,” Abdullah argued. “All other articles have been applied subsequently. If Article 370 goes, automatically Article 1 [making the state an integral part of India] will also have to go.”
Constitutional experts are skeptical. “It will not affect the instrument of accession because J&K has no independent existence from India and the accession is complete,” Prasanna said. “However, in my view, abrogating Article 370 would go against the basic structure of the constitution.”
If Article 370 is removed, it may affect the demography of the state, as happened in Pakistan-administered Kashmir, where the Kashmiris have become a minority. Article 35-A under Article 370 currently allows the J&K legislature to define permanent residents of the state.
“If Article 370 goes, decks will be cleared for extension of all laws to J&K not otherwise applicable and would definitely impact the demography,” Abdullah said. Moreover, he said that abrogation of Article 370 will be disastrous. “This will not only widen the gulf, generate frustration and further alienation but and may even add to separatism. Kashmir will erupt and it will be difficult to contain the uprising,” he said.
According to Prasanna, Article 370 per se will not affect the demography of the state in any way. “The state laws are the ones which impose restrictions on ownership and inheritance of property in the state,” he said.
“Article 370 is only one of a dozen similar articles where the relationship between Union and State is tailored specific to historical circumstances and promises made by India. By unilaterally removing 370 & 35-A, the Indian state is telling people that its promises are worthless. This will have a huge bearing on other parts of the country where the people have struggled against the Indian state, ” he added.
As many as 11 states have wide-ranging safeguards similar to Article 370. If those safeguards are removed, “Why will then any promise of constitutional protection be believed?” Prasanna asked.
At stake appears to be the future of peace and stability in nuclear-armed South Asia.