The Anne Frank Stichting, whilst critically analysing ‘Germany 1933: From democracy to dictatorship’ says, “ After taking power, Hitler and the Nazis turned Germany into a dictatorship. Time and again, they used legal means to give their actions a semblance of legality. Step by step, Hitler managed to erode democracy until it was just a hollow facade. Things did not end there, though. During the twelve years that the Third Reich existed, Hitler continued to strengthen his hold on the country”. The same words applied to India today – not only sound but are frightfully true!
August 5, 2019 will surely rank as one of the blackest days in the country’s history – if not, the blackest! In a blatantly unconstitutional and anti-people act, the BJP-led NDA Government abrogated Article 370 of the Constitution. The manner in which it was done was not merely insidious and autocratic, but an onslaught against democracy. The draconian manner in which the Government pushed a sensitive bill, in a sneaky and secretive way, steam-rolling all opposition, without consulting Parliament, without taking the people of Kashmir into confidence – is clear betrayal of the values embedded in the hearts and minds of most Indians.
It is without doubt that Article 370 of the Constitution of India is a self- contained one. It determined how the Constitution of India would apply to the State of Jammu and Kashmir (J&K) and it also contains clear and specific provisions for the procedure for the abrogation of the Article. The President of India can pass an order under Article 370 (3), removing article 370 ONLY if the Constituent Assembly of Jammu & Kashmir recommended the same. The Constituent Assembly of J&K ceased functioning in 1957, the Supreme Court in its judgement in ‘SBI vs Santosh Gupta’, (2017), held that the Article 370 has become permanent unless another Constituent Assembly of J&K was constituted. In order to get over this constitutional roadblock, the present regime in New Delhi adopted a rather devious and unconstitutional route.
Article 370 (1) (d) of the Constitution empowers the President to periodically issue notifications modifying the way the constitutional provisions can be made applicable to J&K. Article 367 of the Constitution of India explains how phrases in the Constitution are to be interpreted. The issue, in case of abrogation of Article 370, was the need for a recommendation by the ‘Constituent Assembly of the State.’ On August 5, in a devious manner, the BJP- led Government, introduced a three-step amendment process. In the first step a Presidential Notification under Article 370(1)(d) was issued amending Article 367 by introducing a new Sub-clause (4) which stated that the expression ‘Constituent Assembly’ in Article 370(3) shall be read as ‘Legislative Assembly of the State’. The effect was that after this change, Article 370 of the Constitution could be amended removing the necessity to obtain the recommendation of the ‘Constituent Assembly’. This is in fact, completely violative of the spirit and the letter of the Constitutional provisions. Besides, adding insult to injury J&K was downgraded to a Union Territory from a State- something unheard of and absolutely humiliating!
For almost a week before 5 August the Government was on an over- kill: with surreptitious yet strategic acts ensuring a build-up, which kept the nation wondering but at the same time the people of Kashmir were kept on tenterhooks and in utter darkness. There was a massive upscaling in deployment of military forces, random frisking of people, the imposition of indefinite curfew, the arrests of former Chief Ministers Mehbooba Mufti and Omar Abdullah and other key Kashmiri leaders were arrested; a round the clock curfew with a complete black out in communications ,the suspension of civil activity, the sudden evacuation of all tourists and particularly pilgrims to Amarnath, in an attempt to terrorise citizens and bulldoze the aspirations of the people of the state. Five days after the unconstitutional abrogation of Article 370 the people of Kashmir are still being denied the rights and freedom which are legitimately theirs.
The abrogation of Article 370 has always been part of the DNA of the Sangh Parivar. The BJP election manifesto clearly highlights it – and to their ‘bhakts’ they have made good their promise. Several of them are jubilant and celebrating with unabashed adulation – just as the crowds did for Hitler when he began purging the Jews, the Catholics, the intellectuals, the liberals.
There are however several unanswered questions, which even the most ardent of ‘bhakts’ are unable to answer, on this heinous deed:
-why was it done in such a cloak-and-dagger manner?
-why were the people of Kashmir, their political leaders and others who matter not taken into confidence?
-why was the Opposition kept in the dark- and not given the minimum mandatory two days to deliberate on such a contentious issue?
-why are the people of Kashmir kept imprisoned in their own homes, with a complete blockade on communications and being denied their basic human rights?
The BJP and their ilk know that what they have done is wrong, totally unacceptable by anyone, who has a little common sense, who has some degree of objectivity and sensitivity to the larger issues, concerning India and the whole sub-continent.
It is but natural that several intellectuals and other eminent citizens of the country have taken umbrage on the abrogation of Article 370 and the way it has been done. Editorials and op-eds not only from India but from all over the world have unequivocally condemned this draconian act of the Government and the fact that it will greatly affect the peace and stability of the region. ‘The Telegraph’, of Calcutta which is well-known for its front-page headlines critical of the Modi regime, likened the August 5 decision, to ‘the Partition’ in big, bold letters. In a hard-hitting article ‘The Ultimate Goal Is a Hindu Rashtra and It Is Now Within Sight’, Sidharth Bhatia the founding editor of ‘The Wire’ argues that the Sangh Parivar’s dreams are close to being fulfilled and scores of Indians are cheering it on. Whereas ‘Mumbai Mirror’ (from the Times of India Group) had a strong headline ‘Cloak and dagger that pierced Kashmir’s heart’ reflected its paper’s view on both the decision itself and how it was carried out, without consultation, and while blacking out any news or dissent from the Kashmir Valley
Well known intellectual, Pratap Bhanu Menta in an op-ed in the ‘Indian Express’ (6 August 2019) entitled, ‘The story of Indian democracy written in blood and betrayal’ writes, “There are times in the history of a republic when it reduces itself to a jackboot. Nothing more and nothing less. We are witnessing that moment in Kashmir. But this moment is also a dry run for the political desecration that may follow in the rest of India. The way the BJP government has changed the status of Jammu and Kashmir by rendering Article 370 ineffective and bifurcating the state is revealing its true character. This is a state for whom the only currency that matters is raw power. This is a state that recognises no constraints of law, liberty and morality. This is a state that will make a mockery of democracy and deliberation. This is a state whose psychological principle is fear. This is a state that will make ordinary citizens cannon fodder for its warped nationalist pretensions.”
UN Human Rights Council (UNHRC) states , “The fact that hardly any information is currently coming out from the region is of great concern.” The Spokesperson pointed to the UNHRC’s July 8 report on the human rights conditions in Kashmir, which documented how authorities in India have “repeatedly blocked telecommunications networks to muzzle dissent, used arbitrary detention to punish political dissidents and employed excessive force when dealing with protestors leading to extrajudicial killings and serious injuries;” adding that the latest restrictions “will exacerbate the human rights situation in the region.”
The Guardian, the well-respected news media from the United Kingdom, minced no words in an editorial (August 6, 2019) saying, “ Yet the revocation and decision to split the state in two – creating two centrally administered territories in its place – is shocking and perilous. Several legal experts believe it unconstitutional too. Its abrupt and ruthless manner, with the house arrest of well-known politicians, imposition of a curfew and blackout of the internet and phone lines, will likely lead to protests and inflame the resentment which has underpinned an insurgency which has cost tens of thousands of lives”.
Several national, non-partisan and secular organisations like the Peoples Union for Civil Liberties (PUCL) the National Alliance of People’s Movements (NAPM) have issued very strong statements condemning the abrogation of Article 370. Several other concerned citizens have an endorsed a statement saying:
“We, concerned citizens of India and organisations from across movements, condemn the attempted abrogation of Article 370 and the C.O. 272 /2019 and the Jammu and Kashmir Re-Organization Bill 2019.
Recognizing that the peoples of Jammu & Kashmir are facing a repressive onslaught, a lockdown of the spaces of their homes and streets, that their lives and liberty are at risk, we state that the Jammu and Kashmir Re-Organization Bill 2019 is unconstitutional, immoral, and totally devoid of legality. As recently as 2017, the Supreme Court held that Article 370 is “not a temporary provision”.
The way the State of Jammu & Kashmir has been annihilated spells an imminent danger to all provinces, parts and territories within the Indian Union. It is a direct assault on the federal structure of the Indian constitution and violates all the promises and commitments made to the peoples of Jammu & Kashmir.
We recognise the peoples of Jammu & Kashmir as the most important stakeholders of their lives and land.
We demand, immediately, that
1. No steps about the future of Jammu & Kashmir are taken without the consent of the peoples of Jammu & Kashmir.
2. An immediate scaling back of the troops (armed forces and paramilitaries) deployed in Jammu & Kashmir.
3. An immediate restoration of communication infrastructure, mobile telephony and the internet.
4. An immediate lifting of restrictions on civil society and political leaders in Jammu & Kashmir, and demand that no further arrests be made.
We appeal to all sections of society, political parties, trade unions, student organizations and individuals to stand with Kashmiris, especially young people and students from Jammu & Kashmir who are in workplaces, neighbourhoods and educational institutions everywhere in India.
We express our solidarity with the peoples of Jammu & Kashmir and wish to assure them that we stand by them in the quest for justice and peace.
Asiya Syed is a young Kashmiri currently doing her undergraduate studies in Bombay University. Her parents and relatives live in Kashmir – she has absolutely no communication with them these past days. Asiya is not afraid- she is visible, she is vocal – passionately espoused to the idea and the cause she believes in “I will speak up, no matter what, and I will not keep my identity hidden even if they kill me”. She goes on to add “ your million forces and communication blockade will not kill an idea!”
Asiya represents that idea of a free, pluralistic, dignified, sensitive India. We, the people, should have the courage to unequivocally condemn the bloody betrayal of a people by standing up for Asiya and the Kashmiris now!
(The writer is a human rights and peace activist/writer. He is the recipient of several international and national honours for his work for human rights, justice, reconciliation and peace. Contact: firstname.lastname@example.org)(Published on 12th August 2019, Volume XXXI, Issue 33)