Editorial 1 : Eye on Kashmir
Introduction: The Supreme Court’s judgment this week, validating the abolition of Article 370 for Jammu and Kashmir and the separation of Ladakh from it — legislated by Parliament on August 5, 2019 — will make one big difference to the geopolitics of Kashmir.
Significance of the decision
- It ends Delhi’s prolonged defensive strategic orientation on Kashmir that emerged at the turn of the 1990s when independent India was at one of its most vulnerable moments.
- The legal clarity provided by the Supreme Court — that India’s “internal” relationship with Kashmir is not open for “external” negotiation — does provide a good basis to launch a new phase in India’s Kashmir strategy.
Question of legitimacy
- The SC decision will not end the international meddling on Kashmir.
- Pakistan, China, Islamic world, and the West is unlikely to change their stance radically over Kashmir over this decision.
- India’s growing comprehensive national power will only deter these nations from meddling in Kashmir, and this SC decision gave India a launchpad to assert a tougher Kashmir policy.
US-China-Pakistan pressure
- The gathering crisis in Kashmir during the 1980s culminated in the massive insurgency that broke out in 1989.
- Pakistan’s full-throated military, political and diplomatic support to the insurgency in Kashmir came amidst the breakdown of the old economic order in India, the collapse of one-party rule and the rise of weak national coalitions, fires all along India’s periphery from Punjab to the North East and Tamil Nadu, and the Mandal versus Mandir politics in the heartland.
- The collapse of the Soviet Union in 1991 convinced Pakistan and the insurgents that a visibly weakened Indian state could be brought down in Kashmir.
- All it needed was a big strategic push. Internal insurgency backed by cross-border terrorism was matched by a massive global campaign to mobilise international support for Kashmir’s secession from India.
- This was reinforced by the Clinton administration’s South Asia policy after the Cold War that questioned the accession of Kashmir to India, focused on the human rights situation in the state, and sought to promote a peace process between India and Pakistan devoted to resolving the Kashmir question.
- The series of military crises around Kashmir — in 1987, 1990, 1999, and 2001-02 — saw the international community intervene to prevent India and Pakistan from coming to nuclear blows and pushing for a dialogue on Kashmir.
India’s strategic reversal
- In navigating this storm at one of India’s most dangerous moments, Delhi, to its credit, did not give away the store on Kashmir.
- However, successive governments since the 1990s had to signal political flexibility on Kashmir to manage the international pressures.
- Three signals stood out.
- One was to put Kashmir back on the negotiating table with Pakistan.
- Another was to suggest that there might be room to negotiate on the nature of the institutional relationship between Delhi and Kashmir.
- A third was to lend credence to Islamabad’s claim that the “people of Kashmir” must be the “third party” to the negotiations with India by engaging with the pro-Pakistan militant groups and facilitating their travel across the border.
- After trying to mend its way with Islamabad in the initial years of NDA I government, it changed its position to tougher negotiations to no talk with Pakistan.
- Early on in the second term, the Modi government moved boldly to scrap Article 370 to provide a legal basis for its political position on the external aspects of Kashmir.
- An outraged Pakistan downgraded diplomatic relations with India and sought to get the United Nations Security Council, with the support of China, to intervene against India.
- Delhi blocked this move with the support of its new Western partners in France and the United States.
- The changing attitudes of the US toward Kashmir — which moved from diplomatic activism in the 1990s to put it on the back burner in the 2000s — has been a critical factor in changing the international dynamic on Kashmir.
- That, in turn, was rooted in the expanding strategic partnership between Delhi and Washington during the last two decades driven by converging Indo-Pacific interests.
‘New Kashmir’, new diplomacy
- The US now has other fish to fry in Asia, and Kashmir is no longer the obsession in Washington’s South Asia policy.
- The positive transformation of India’s relations with the United Arab Emirates and Saudi Arabia has prevented Pakistan from mobilising the Islamic world against Delhi’s Kashmir actions.
- Equally consequential has been the dramatic shift in the balance of power between India and Pakistan.
- Thanks to India’s sustained economic growth and Pakistan’s slowdown, India’s GDP at 3.7 trillion dollars is ten times larger than Pakistan’s.
- If the current trends persist, the gap between the two will continue to widen in the coming years.
- While the support from the West and the Islamic world is very welcome, Delhi is acutely conscious that few of them have given up on the notion that there is a Kashmir dispute between India and Pakistan.
- A restive Kashmir will continue to reinforce the old perceptions. Building peace and prosperity in Kashmir, then, is key to permanently transforming international attitudes.
- While Pakistan has weakened as a strategic actor in relation to India, its capacity to create trouble in Kashmir remains intact.
- Pakistan’s deepening partnership with China continues to present challenges to India in Kashmir.
- Notwithstanding these two negative factors, the international environment has never been as favourable to India as it is today in building a “New Kashmir”.
Conclusion: Domestic legal closure on the question of India’s full sovereignty over Kashmir does not automatically change international attitudes. It depends, above all, on constructing a sustainable new political compact in Kashmir.
Editorial 2 : Letting down the states
Introduction: The Supreme Court’s judgment in In re Article 370 of the Constitution delivered on December 11 upholding the abrogation of Article 370, the bifurcation of Jammu and Kashmir, and its downgrading to a Union Territory only heightens concerns for India’s federal structure.
The question of federalism
- What does “statehood” even mean under the Constitution if the Union could unilaterally and permanently extinguish a state.
- In the context of J&K, the petitioners argued that Article 3 of the Constitution does not give the Union the power to remove “statehood”.
- While the Union has the power to rename a state or change its boundaries, it cannot simply “downgrade” a state to a Union Territory under the Constitution.
- If federalism is indeed a basic feature of the Constitution, a casual cancellation of statehood cannot be accepted.
- The majority judgment authored by CJI Chandrachud completely avoids answering this question.
- This is unfortunately in consonance with the SC’s recent trend of avoiding adjudication of controversial questions.
- The reason for such non-adjudication could be an “assurance” by the Union that J&K’s statehood will be “restored” soon.
- This is entirely irrelevant to the question raised — if the action was justified in the first place.
- However, the refusal to answer this question is also, unwittingly, an answer — the court implicitly accepts the Union’s argument that it can extinguish statehood at will.
- While accepting that federalism is a basic feature of the Constitution, the SC still holds that the Union may extinguish statehood at will.
- On the one hand, the court says that India’s federal units, the states, owe their powers to the Constitution and not to the Union.
- But on the other hand, it implicitly accepts that they owe their existence to Parliament no matter what the Constitution says.
- This part of the judgment is not unique to Kashmir since the power under Article 3 can be invoked against any state.
- The direct implication of the Supreme Court’s judgment is that the Union may choose to reduce any state to a Union Territory for as long as it wants and for whatever reason it wants.
Do the people of a state have a say in how they are governed?
- The petitioners argued that the abolition of J&K’s statehood required consultation with the legislature of J&K as the representatives of the people of the erstwhile state.
- The judgment, however, frames this as a mere “procedural” issue relating to the exercise of power under Article 3 instead of a question of democracy.
- The court holds that since J&K was under the President’s Rule and the President declared that the Union Parliament would be consulted instead of the J&K legislature, this is sufficient compliance with the “procedure” of Article 3.
- Further, since the President had already issued a Proclamation stating that the requirement to consult with the state legislature will not apply to J&K, the court holds that there was no “procedural violation”.
- The basis for doing so is a somewhat convoluted reading of the SC’s judgment in SR Bommai v Union of India (1994).
- Apart from a misreading of the judgments in Bommai, the court does not seem to see the irony in using a judgment that expanded federalism in India to dramatically undermine the same principle.
- In essence, the court seems to say that the constitutional requirement of consultation with the state legislature under Article 3 is trivial and the people of a state have no say on the statehood of their state.
The future of asymmetrical federalism
- The SC puts Article 370 in a different category from Article 371-A to Article 371-J.
- It holds that Article 370 was intended to be “temporary” in view of the historical context, placement and text of this Article.
- While it is correct that Article 370 was intended to be temporary when it was introduced and it was therefore placed in the “Temporary and Transitional Powers” part of the Constitution, the text of Article 370 does not suggest that it was meant to be temporary.
- Unlike other clauses, its application is not limited to a specific period of time, or till another event takes place.
- Article 370 was intended to operate till it was amended by Parliament under Article 368 or abrogated by the President in accordance with the procedure provided for under clause (3) of Article 370 (that is consultation with the Constituent Assembly of J&K).
- The court’s argument on the “temporary” nature of Article 370 stands on a weak footing.
- However, this approach does not fundamentally weaken the idea of asymmetrical federalism since it is limited to the particular text of Article 370.
- That will, of course, be no consolation to those in J&K who believed that the Constitution of India allowed them certain unique protections.
Conclusion: As seems to have become the norm of late, the SC’s Article 370 judgment displays a vast gap between the rhetoric in the writing of the verdict and the actual decision in the case.