Making Kashmir a union territory is bogus and pointless: Former interlocutor Radha Kumar

On 5 August, the union home minister Amit Shah announced in the Rajya Sabha that the Bharatiya Janata Party government had effectively nullified Article 370 of the Indian constitution, which granted a special status to Jammu and Kashmir. Shah tabled two bills in the upper house that necessitated revoking the special status guaranteed to the state. In addition to the bills—the Jammu and Kashmir Reorganisation Bill, 2019 and the Jammu and Kashmir Reservation (2nd Amendment) Bill, 2019—Shah also brandished a presidential order, dated the same day, which extended all the provisions of the Constitution to the state, defanging Article 370. Both bills passed in the house.

Following Independence, Article 370 had formalised the terms of Jammu and Kashmir’s accession to the Indian union—as stipulated in the Instrument of Accession. Among other things, Article 370 mandated that barring certain subjects—such as defence and foreign policy—the central government was required to seek the concurrence of the Jammu and Kashmir government before it could legislate in the state.

Yet, as the state has been under President’s Rule since December 2018, the centre circumvented this requirement—the presidential order allowed the governor to assent in lieu of the state legislature. Through the Reorganisation bill, the government split the state into two union territories—Ladakh and Jammu and Kashmir. That the centre acted in the absence of a state government and through an executive order also raised questions about the constitutional validity of its decisions.

As the country came to grips with the move, Mehak Mahajan, an editorial fellow at The Caravan, spoke with Radha Kumar, an academic and a former member of a Kashmir interlocutor panel. Between 2010 and 2011, the panel visited all 22 districts of the state, met over seven hundred delegations and held three round-table conferences. Kumar is a specialist in ethnic conflicts and peace-building measures. Outraged at the route the BJP has employed to fulfil one of the core agenda’s of its manifesto, Kumar said, “This is the total undermining of our democracy.”

Mehak Mahajan: What is your reaction to the BJP government’s decision to effectively disable Article 370?
Radha Kumar: This is a black day for Indian democracy, the way it has been done. It’s a major constitutional change and you have brought it in secrecy and stealth. You have the president passing an order which changes key elements of process and procedure as far as the Union of India’s relationship to Jammu and Kashmir is concerned. Then you have a bill [Jammu and Kashmir Reorganisation Bill, 2019] suddenly introduced in parliament, debated and voted on. This is something that should have been debated for days, not for a couple of hours. Now, we are being told that the governor can be considered a replacement of the legislative assembly of the state. How can a governor be a replacement of the legislative assembly which is elected by the people of the state? This is what the president’s order is saying. They have violated the basic [constitutional] principles and they have done it by stealth.

You have a state in which you have governor’s rule for one and a half years because you have not held the election to the assembly. You have conducted Lok Sabha elections but you are not doing assembly elections. Any change to [Article] 370 had to be referred to the constituent assembly of the state. The president [Ram Nath] Kovind replaced that by the legislative assembly of the state. But there is no legislative assembly. So, are you going to hold elections first? Then, why are you debating this bill now? Why is it not being debated at the same time in both houses? I mean, both the state assembly and the Indian parliament. There is something so suspect about everything in this move. You look at the arguments in favour of this move; they are all complete rubbish.

The fundamental norm of democracy is the will of the people. You have not only ignored it, you are going all out to get rid of the will of the people of Jammu and Kashmir. Have you had a referendum there? Have you consulted them? Have you done anything? No, nothing. It is unbelievable and this now sets a principle. The message is: you do not matter, your opinions do not matter, the idea of consulting you does not matter. We can always pass some presidential order that says this or that article of the Indian Constitution is irrelevant.

MM: So, you are saying that the BJP government has set the precedent for such moves in the future?
RK: Yes. Now it is absolutely clear that those warnings coming from Omar Abdullah [the former chief minister from the Jammu and Kashmir National Conference party], Mehbooba Mufti [the former chief minister from the Jammu and Kashmir Peoples Democratic Party] and others were right. Why have we sent over thirty thousand troops now? You put mainstream party leaders under house arrest, so that they cannot open their mouths, so that they are not allowed to do a legal non-violent protest demonstration. What is this nonsense? What have you told the people of Kashmir? You have told the people of Kashmir to shut up. You have told them: don’t you dare. That is why you have sent the troops. Words fail me. I have never been so depressed and shocked.

MM: You mentioned earlier that the arguments given for the amendments are all rubbish. Could you elaborate on that?
RK: They say that this will enable them to better tackle terrorism. They say this will enable better flow of development to the state. Those are the two main arguments. Take the terrorism argument. Up till now, they have been saying, “We’ve controlled it. It has come down.” Please explain then, why were you saying you have controlled it if you suddenly turn around and say, “It’s so dangerous, we have to take away the status of this state and we have to bring it under direct central rule.” So, which one is it? Where is the danger and why do you think that this is going to help you somehow control it better? What are the causes and forms of terrorism that we are encountering? One is cross-border. The centre anyway has full military authority, defence is a central portfolio. So, now you are saying that having it as a full, central portfolio is not enough? How is making a union territory going to give you greater control? You have full control anyway, so it’s a completely bogus argument, it’s meaningless and pointless.

Nobody denies that this state has had development problems, or that the peculiar relationship with the Union of India and the state government has hampered development in the state. How does making it a union territory solve it? They are saying that what this means is that businesses will be able to buy land or lease land. The Jammu and Kashmir legislative assembly was refusing to give long-term leases to industry, and there is no doubt that was a deterrence to outside industry investing there. That was certainly a problem and it did need to be tackled but again, there are democratic ways of tackling it.

I criticised it in 2011 as well and have continued to criticise the Jammu and Kashmir assembly for being short sighted. But the fact also remains that it is a volatile state, there are frequent outbursts of violence and the industry does not want to invest in those situations. We saw what happened in Bengal. [In Jammu and Kashmir] the thrust should have been long-term leases, and it should have been negotiated. If the legislators were proving difficult, you go to the public of the state. Let them put pressure on their representatives to change their position. That is the democratic way of doing things, not this. This contradicts fundamental principles of knowledge, it contradicts fundamental principles of democracy.

People will buy land, but who is going to work there? Who will provide them security? What industry would be set up there at a time of recession in our country? Do you really think many industries are going to go there? Or will it be land grab? People want to have summer houses in Jammu and Kashmir, they are not going to go and live there either.

MM: What do you think was the government’s purpose behind the decision to bifurcate the state into union territories?
RK: I do not understand how you can turn a state into a union territory in the first place. Has this ever happened? Who does this? Only a dictator will do this. But why on earth are you turning a state into a union territory? The only reason can be direct rule from the centre. How direct rule helps is not clear at all because as far as military security is concerned, you have direct rule already. As far as political concerns go, you had an elected [state] government. The development argument holds no ground whatsoever. What other concerns can there be, politically speaking? Now you want delimitation, so as to ensure that the balance of power shifts constituency wise, so that you and your supporters can get more seats. That seems to be the only logical conclusion for me.

MM: You have spent time as an interlocutor in the state. What is your perception of the Kashmiris’ relationship with Article 370?
RK: We have hollowed out Article 370 over the years. Many of the provisions that were originally a part of 370 have gone. Slowly, we have extended some very good provisions and some bad provisions that would undercut Article 370. So, most of them [Kashmiris] were very cynical about it, they said it was hollow—it was on paper but it was not implemented in practice.

But that is one point. This is five times larger than that. This is about taking away even the democratic rights of self-governance of the state. That is the biggest issue. And the much bigger question that will come up is if you take away most of these provisions of 370, what happens to the Instrument of Accession? Article 370 codified the Instrument of Accession.

MM: It was essentially a contract?
RK: Yes, it is a binding legal document. Those were the terms on which the state acceded to India. Now that you have taken the terms out, can you keep the accession?

MM: What happens to the instrument of accession now? The contract no longer holds, so Kashmir is currently in a legal limbo.
RK: That is what opponents of these moves would argue in courts. The question is how much do the courts matter? It is not clear to me [if] the court matters much at all. So, I do not hold out a great hope over there. [The] question is, if the court does not matter, who else matters? I would have hoped that parliament mattered more. It seems to me we are coming to a situation where every element of our democracy is beginning to crumble. The question then for each one of us personally is: what are we going to do about it?

MM: So, what do you think the government might be planning over the coming year?
RK: If they start implementing the provisions of the presidential order, which I assume they will, that will probably entail keeping a large number of troops present and going back to massive security presence on the streets.

MM: There are multiple Supreme Court decisions that reiterate the “permanent” nature of Article 370 and that it cannot be altered without the recommendation of the Jammu and Kashmir assembly. How do you think the government is going to overcome these judicial constraints?
RK: That is what the Kovind order is about. The roadmap that the government has—and I am reading between the lines here—would suggest that the next step will be fresh delimitation of constituencies to allow for the possibility of somehow getting a majority, and then there will be elections and a legislative assembly and then they will be asked to ratify this change.

What I would stress over here is that even more important than what they have done is the way they have done it. To me, that is really critical for our democracy. You want to make these changes but you fear to put them for public debate. You therefore take a secretive method and—most shocking of all—you send troops in to quell any possible potential protest, even if it is non-violent, even if it is a statement of an opinion. This is the total undermining of our democracy. If you can do it here, you can do it anywhere.

MM: Many in the media have been celebrating the move with hashtags such as #ModiIntegratesKashmir and #OneIndia. What do you have to say about this support for the BJP’s decision on Article 370?
RK: I am absolutely horrified. I do not know if the media represents popular support or helps mobilise support. I fear it is the latter. Certainly, there is no question of the objectivity of the media any longer. They make it very clear themselves that they are activists and they are not independent. Independence, in the sense, you have to give the facts and figures and all sides of the argument, and that clearly has not been happening for a long time, especially on Kashmir.

You take any talk show on Kashmir, except NDTV—every time the anchor interrupts the Kashmiri before the person has even managed to complete one sentence. Whereas the non-Kashmiris, like myself, are not interrupted in the same way. The bias has been fairly clear from the start. What shocks me about this is that none of them seem to be asking the critical, factual questions. I should not be saying none because two or three called me up and they were asking the constitutional question, but not sufficiently enough and not in detail.

MM: How do you think people in Kashmir reacted to this, since we do not know what is happening there?
RK: I am sure there is utter rage and despair, especially in the valley and large parts of Jammu as well. How will they express that? Over time, I am certain that you are going to have more armed conflict. I think there must be so much fear there. We must not forget that people have been dying everyday. In the long term, there is going to be a lot of violence, there are going to be guns flooding from Pakistan, there is going to be an upsurge in militant attempts to enter from Pakistan. We know there are cells in the valley—they are going to be activated. We have had this government for five years and they started with “we are going to eradicate every cell—underground, over ground.” But you have not been able to do it. That is my real problem: the people [of Kashmir] are going to see more bloodshed, more violence. You have exponentially worsened the situation, and for what? I do not understand. It seems to be purely an abstract, whimsical political stance.

MM: Beyond this stance, do you see any tangible benefits that the BJP can accrue with this move?
RK: There are state elections coming up in other states, so it will certainly help. They will continue with this narrative that “we are strong, we can do things that nobody else can.” For some reason, our people seem to believe that. I do not know why, but they do. And as you see the media, they are just not asking the basic question: how did you do this without the people’s agreement? The fundamental of any democracy is people’s will. [The government is] saying that “we are the majority, we have the will, so we’ll impose on those [Kashmiri] people.”

This interview has been edited and condensed.