The Jammu and Kashmir Reorganisation Act 2019 – Progress on the BJP’s Election Manifesto?

12 August 2019 Auriol Weigold, FDI Senior Visiting Fellow

Background

The Jammu and Kashmir Reorganisation Bill was passed by both houses of the Indian Parliament on 5 and 6 August and was assented to by the Indian President, Ram Nath Kovind, on 9 August. This complex Bill, drafted secretively, was introduced without democratic consultation. It was preceded by the deployment of many thousand troops to Kashmir, ostensibly to protect against an un-named threat. The Amarnath Yatra, an annual Hindu pilgrimage, was suspended and pilgrims and tourists were instructed to leave Kashmir. A curfew was imposed, local politicians were restrained, means of communications were cut and a media shut-down enforced. This was a transformative act in a perpetually restive State, its purpose being to end preferential rights, its outcome a further step towards the Hinduisation of India.

Introduced in the Rajya Sabha on 5 August by Home Minister Amit Shah, Part II of the of the Bill referred to Jammu and Kashmir’s changed status from a State to the ‘Union territories’ of Jammu and Kashmir, and Ladakh. The Governor of Jammu and Kashmir, on the Bill’s passage, became the temporary Lieutenant Governor for the two Union territories. This is a massive Bill, some fifty-eight pages in length, comprising 103 clauses, amendments to 106 central laws and some 7 state laws, repeal of over 150 state laws and Governor’s Acts, which arbitrarily places the territories under President’s Rule.

President’s Rule or direct rule by the central government is a control provision inherited from pre-independence India. Arguments suggest that this move was no surprise, that the suspension of the former State’s government and the imposition of President’s Rule may have taken place in December 2018, in preparation for change. Home Affairs Minister Amit Shah, armed against criticism of this move used another Constitution Article, 367, to determine that changes to the status of a state could be made under President’s Rule, already declared.

Flagging the repeal of the Indian Constitution’s Articles 370 and 35(a) in relation to Kashmir in Modi’s 2019 Election Manifesto, was clear. Article 370 had given special status to the region of Jammu and Kashmir, allowing it to have a separate constitution, a state flag and internal administration of the state. Article 35(a) empowered the former state’s legislature to define ‘permanent residents’ and grant their special rights and privileges. Those were concessions that a strong BJP-ruled country, increasingly flying its ‘saffron banner’, no longer needed to condone.

 

Comment

Modi explained his government’s decision in several ways: that Kashmir’s special status was being used by Pakistan to foster anti-Indian feeling and the move would free the former state of terrorism; that it paid ‘tribute to all patriots’ who fought Pakistan for India and, on the domestic front, ending ‘self-rule’ in Jammu and Kashmir would remove obstacles to economic development.

No commentary on the BJP Government’s move, however, can ignore the seventy-year-old origin of Kashmir’s special status, nor the first Indian Prime Minister, Jawaharlal Nehru’s imprint. Succinctly put by Ramesh Thakur, ‘Kashmir represents the unfinished business from the 1947 partition of India that created Pakistan’.

Nehru may aptly be described as Modi’s bête noir. In reversing the first Prime Minister’s vision for India, unravelling ‘his’ Kashmir, can be seen as a powerful metaphor. The Nehru family were Kashmiri Brahmins, and Nehru frequently referenced his connection – his ‘kinship with Kashmir’ (See, for example, Jawaharlal Nehru (1956), The Discovery of India, London: Meridian Books Limited, p. 38).

The Instrument of Accession that gained for Jammu and Kashmir the right to legislate on all portfolios except defence, external affairs and communication has been referred to as ‘emotionally political’ (Walter Crocker (1966), Nehru: A Contemporary’s Estimate, London: George Allen & Unwin Ltd, p. 93. Crocker was Australian High Commissioner to India and noted that ‘It was my job to watch Nehru day by day’, p. 10) in that it was Nehru’s undertaking, but it was also in India’s interest that it should have a Muslim state accede to it.

In the case of Muslim Kashmir, its Hindu ruler, Maharaja Hari Singh, had wanted to remain independent but acceded to India in October 1947 after incursions by what he named as Pakistan Army troops and local tribesmen, leading to years of counter-accusations and the tensions that continue to dominate today. India agreed to help but only after Hari Singh’s accession. India’s delegation allowed, at a Security Council meeting in 1948, that the accession could be withdrawn after the emergency, leaving Kashmir with choices about future allegiance or independence. Nehru agreed to hold a plebiscite and accept its result.

As is known, the plebiscite was never held, arguably because Nehru could not be sure of the result, and retaining Kashmir for India was, for him, of paramount importance. Article 370 of the Constitution was recognition of the conditions of Kashmir’s accession to India, (that it was not committed to remain), and it set out the contractual rights, and various clauses added further protection.

It can be argued that the Modi Government’s repealing of Act 370 ‘is the negation of the constitutional pact that India signed with Maharaja Singh’, but such an argument would not gain traction and would become mired in India’s legal system.

While Nehru will be remembered for his affection for Kashmir and wilful determination to keep it as part of India, Modi’s Government has other reasons for undermining his vision for India. The BJP has over decades decried Nehru’s socialist economic policies as stifling India’s growth, his Western education and outlook as preventing him understanding India, and his determination that secularism should prevail, blocked India’s progress as a Hindu nation.

Nehru’s secular India is BJP’s target, and its Muslim population has been subjected to its erosion, the Jammu and Kashmir Reorganisation Act its most visible move to shift to a distinctly Hindu state. The approach has been gradual since Modi’s election in 2014 and usually below the radar: cow protection, changes to the Citizenship Act, the recent, also visible, abolition of triple talaq divorce, and the election commitment to a national register of citizens. Could Ayodhya be next?

About the Author

Dr Auriol Weigold is an Adjunct Associate Professor at the School of Government and Politics, Faculty of Business, Government and Law at the University of Canberra. She has been a Fellow and Honorary Fellow at the Australian Prime Ministers Centre at Old Parliament House, Canberra, between 2010 and 2015, publishing on Australian and Indian prime ministerial relationships. In 2016, she spent a period as a Guest Scholar at the Indian Institute of Advanced Studies at Shimla. Previously, she was Convenor of the BA International Studies at the University of Canberra and an Editor of the South Asia Masala weblog, hosted by the College of Asia and the Pacific at the Australian National University. In 2008, she published her first book: Churchill, Roosevelt and India: Propaganda during World War II. Since then, she has co-edited and contributed to two further books. Her research interests include the Australia-India bilateral relationship, India’s energy and security needs, and Indo-British relations in the 1940s.

Any opinions or views expressed in this paper are those of the individual author, unless stated to be those of Future Directions International.

Published by Future Directions International Pty Ltd.
Suite 5, 202 Hampden Road, Nedlands WA 6009, Australia.