I am a Kashmiri Pandit and a card-carrying Internally Displaced Person. I believe the recent annulment of Article 370 (and 35A) of the Indian Constitution, which gave special status to the state of Jammu and Kashmir in the Union of India, is a good thing for all Indian citizens including the Kashmiri people.
However, I am also an epistemological fallibilist. I believe humans err not because we are humans but because to err is a physical law governing all knowledge generating systems. In the spirit of error-correction, therefore, I am going to sum up the argument – as fairly as I can – on why my belief in the “goodness” of Article 370 invalidation* is false.
I will attack my own position on 4 different levels. First is to show that it is plainly anti-national, in that it weakens the Indian social contract. Second to marshal ethical arguments around the anti-humanitarian nature of its motivation and execution. Third to highlight the legal loopholes of this decision and finally I will top it with the argument that even if all the previous three arguments were successfully rebutted, the nature of the act is still philosophically unsound.
India is a Union of disparate cultures and peoples. It has some civilizational unity (though even that is debatable) but no singular understanding of its purpose or teleology, unlike more ideological states such as Pakistan or Israel, or even ethno-linguistic states like France. It is therefore a Union in much the same way as European Union, except a closer/tighter one by design. It then makes sense to think of the relationship between each constituent and the Union in purely contractual terms, where such contracts will have differential levels of sovereignty being traded for other social / economic integration benefits. Parts of the contract may not even be straight-forward rational but a function of the vagaries of history and tradition. But then contracts aren’t meant to be teleological in the first place, but are often compromises to fix immediate problems, which can be amended with approval of both parties later on.
In that respect, the peculiar nature of J&K’s status within India is no different. It is not a travesty or an exception to some god-given promise yet to be fulfilled. It is just another contract that makes up the Indian Union and ties the lot of the people of Jammu, Kashmir and Ladakh with India. To tinker with it unilaterally is against the very nature of what the Union is meant to be. It is as if the EU Parliament approves the bill (with majority German and French vote) to send troops into the UK and nullify (or forestall) Brexit.
A breach of social contract is a breach of trust and goodwill. It amounts to self-consuming criminal hooliganism for the hyper-Unionists doing it are tearing down articles of their own faith to achieve their ends. So who is to say that the Union model thus hollowed out will be fit to serve any other constituent state? What stops West Bengal or Tamil Nadu being turned into Union Territories with the flick of a pen? Or the whole of India into a one-party state?
Kashmir Valley is a veritable prison today. People are not free to congregate to organise protests or use any form of mass-communication to speak their minds. The ill cannot call an ambulance, relatives outside the region can not communicate with those within, kids are not in schools, students are not in colleges, modern life as we know it has come to a standstill.
The security forces roam the streets imposing draconian measures to limit public engagement and interaction, throttle media and obviate protest. All of these at the behest of the Indian Central Government to extend its writ by force on a subjugated people.
I say “subjugated” because there has been a long-standing demand from the Muslims of Kashmir for Independence from largely Hindu India. The demand spawned organisations of peaceful protest like the Hurriyet, but also occasionally spontaneous protests of stone-throwing or militant organisations fighting the Indian state for self-determination. All such protestors, violent or not, are brutally treated by the Indian state using laws like AFSPA. Laws that do not allow recourse to the legal system and give total freedom to the Armed Forces of the state to commit violence with impunity.
Even the ostensibly pro-Union parties and leaders frequently acknowledge how deep the popular support in Kashmir for Azadi (Independence) is. Whether it manifests in the form of merger with their ethno-religious kin across the LOC in Pakistan or an entirely new state, it is immaterial. The point is Kashmiri Muslims do not want to live in India and forcing them with threats or use of violence amounts to curtailment of their human rights.
The surreptitious manner in which the Art 370 and 35A were annulled leaves gaping legal loop holes. Many people have covered these aspects of Indian Constitutional Law, but a good summary can be found here.
it may be immediately objected that C.O. 272 does not amend Article 370: it amends Article 367. The point, however, is that the content of those amendments do amend Article 370, and as the Supreme Court has held on multiple occasions, you cannot do indirectly what you cannot do directly. I would therefore submit that the legality of C.O. 272 – insofar as it amends Article 370 – is questionable, and as that is at the root of everything, it throws into question the entire exercise.
The Indian Parliament has not revoked or abrogated Art 370, but amended Art 367 in such a way that it re-interprets Art 370 nullifying its legal power. In other words, the Indian lawmakers have tried to be too clever by half with their own laws. Not only that, the manner in which the Governor’s office was (mis)used to stamp approval on the bill in lieu of the actual elected Legislative Assembly of J&K state is tantamount to Constitutional fraud. Note that the Governor of a state in India is the President’s representative (not elected by the people of the state) and the President is little more than a titular figure-head who can rubber-stamp nearly anything the PM’s Office asks of him (cf Giani Zail Singh’s rubber-stamping of the Emergency declared by Indira Gandhi in 1975).
Given these ironclad legal arguments, Indian democracy is headed in dangerous and uncharted waters. If it is Kashmir today, it could be West Bengal or Tamil Nadu tomorrow. We may therefore be witnessing the unravelling of the Indian Constitution and the inexorable slide to dictatorship right in front of our eyes, while cheering it all the way.
The above are moral, ethical or legal reasons why the annulment of Art 370 does not stand up to scrutiny. However, there is a deeper philosophical reason why – irrespective of how you rebut them – the argument remains fallacious. That philosophical shortcoming has to do with consequentialism, namely the reasoning that the immediate “good” results (defanging of separatists, direct control of militancy, economic benefits of merger into the Indian Union, reduction of red-tape, foreign policy benefits etc) of Art 370 nullification justifies the manner in which it was nullified. This is the classic consequentialist fallacy because ends (however noble) do not justify the means. Means stand apart and have to be judged on their own merit. And in this case those nefarious means just do not stand up to legal or moral scrutiny. Shame on the Indian Republic!
[*] Article 370 was not abrogated/repealed as most media have reported. It still exists in the Indian Constitution and can even be re-triggered by a future act of the Indian Parliament.