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Opinion | Some difficult questions on the state of affairs in Kashmir

The government’s latest move has sought to disrupt the inertia on an old stalemate, but it’s risky


The special status that Jammu and Kashmir (J&K) has enjoyed is due to the unusual circumstances that surrounded its accession to India. The ruler of the princely state at the time of independence, Hari Singh, was unable or unwilling to decide if he wanted it to join India or Pakistan, or become independent. Pakistani infiltration helped change his mind, as he sought Indian assistance, and India agreed to send troops once Kashmir signed an accession treaty.

After India sought the United Nations’ intervention, two outcomes were expected—Pakistani infiltrators would go back and India would hold a plebiscite. Neither happened. India did hold state and national elections in which Kashmiris participated but sometimes boycotted. India has since argued that Kashmiri participation in these shows their acceptance of the accession.

The Kashmiri stalemate needed an imaginative solution. Many in India—the state included—feel pained that Kashmiris don’t want to be part of a democratic India. But partial narratives are dangerous. The families of the thousands who have died (some among them extremists, but many protestors and innocent civilians) see the story differently, and their anguish is persistently disregarded by many in India. There have been grave human rights abuses; think of the Kunan Poshpora rapes, incidents defying explanation like the Chittisinghpura massacre, the many unmarked graves, and most recently the blindings by pellet wounds. Raise these issues, and defenders of a tough approach speak of the plight of Kashmiri Pandits, thousands of whom are internally displaced, driven out by militancy, as if either abuse justifies the other.

Home minister Amit Shah has sought to disrupt the inertia. The move is risky, constitutionally questionable, and relies on legal sophistry: The “special status" is not revoked, but enfeebled, and the state is broken up, the irony being that the many supporters of the Bharatiya Janata Party call critics of the government “the tukde-tukde gang". J&K is no longer a full-fledged state, but a Union territory, with considerably reduced powers.

In doing this, the government has not consulted people in J&K—which is under president’s rule. Mobile and land-based communications are severely curtailed, and there has been a major troop build-up. Officials had earlier claimed there were “credible" intelligence inputs of an imminent terrorist attack, and thousands of pilgrims going to Amarnath were told to go home. That threat seems to have mysteriously vanished.

Analysts are crediting Shah’s shrewd political acumen, his swift execution of a bold strategy; implying that boldness is a sign of greatness. But recklessness is also courageous, with the crucial difference being that others bear the cost of recklessness. Shah knows how toothless the Opposition is—think of the number of regional parties which have backed the move. Think of the confusion within the Congress, where each leader seems to have a different opinion. Most Opposition politicians have either failed to realize the weakening of India’s federal structure, or are too timid to say so. Even Arvind Kejriwal, who wants more powers as chief minister of Delhi, has supported the attack on federalism. India now looks like a majoritarian democracy where those who don’t fit the norm are made to feel unwelcome.

The home minister also appears to have calculated that civil society protests won’t amount to much. Uncomfortable questions are not easy to raise. Legal challenges of the J&K decision are certain, but would the courts, which miss no opportunity to micromanage even municipal responsibilities, act, or would they wash their hands of the issue, saying this is a political matter for politicians to decide?

Beyond the legal cleverness used and the assault on federalism, there is a profoundly moral question. When the Aadhaar bill was passed as a money bill, justice Dhananjay Chandrachud, in his dissenting opinion, had called it “a fraud" on the Constitution. It is a judicial axiom that a state should not do indirectly what it cannot do directly. There is law and there is justice. Morality matters.

There are several other questions that arise. Is democracy to be observed in form or also in substance? Is Parliament a place where decisions are only to be announced and approved, accompanied by laboured puns from the presiding officer’s chair, giving minimal preparation time for the Opposition even to absorb the provisions, or is it meant to be a discursive body?

And, more importantly, does a state’s promise that it would honour the spirit of a treaty of accession carry any meaning? Substantive changes required the consent of the governed, but instead, the Centre’s representative, the governor, has become the representative of the state and its people.

Desks in Parliament are thumped and various entities assume the roles they want, even as the people most affected by it can’t communicate and two of their former chief ministers are under house arrest. And so passes the week, undoing decades: Norms are cast aside, the contract between the citizens and their state discarded, the spirit of the Constitution challenged. Tomorrow, it would seem, is another country.

Salil Tripathi is a writer based in London. Read Salil’s previous Mint columns at www.livemint.com/saliltripathi

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