Understanding Jammu & Kashmir’s Constitutional Crisis

By Hamza Khan

Several months ago, the Indian-controlled state of Jammu & Kashmir was dissolved by an act of the Indian parliament following months of heightened tensions with the country’s hostile neighbor Pakistan. The decision to dissolve Jammu & Kashmir and its constitutionally sanctioned autonomy represents the latest challenge to India’s time honored democratic system under the current Hindu Nationalist government. It is the clearest indication yet of democratic backsliding in the world’s largest democracy, where over 1.2 billion people live. 

But this is only part of the story. Jammu & Kashmir represents one of the greatest challenges in global geopolitics today. Three nuclear-armed parties, China, India, and Pakistan each currently occupy some portion of the former princely state. It is the home to the headwaters of nearly all of India and Pakistan’s major rivers–a new flash point as climate change adversely affects Himalyan glaciers and the subcontinent’s monsoons. Jammu & Kashmir is also at the center of Pakistan’s ongoing challenges with democratic consolidation, given its integral place in the country’s founding dictum as a homeland for all of India’s Muslims.

History of the Conflict

For the past 72 years, Pakistan’s security forces have waged a shadow war against Indian assets in Jammu & Kashmir through militant proxies. Neither country has emerged demonstrably victorious in the conflict. While India holds the eponymous Vale of Kashmir, more than a third  of the state’s population opted to join Pakistan during the original 1948 war between the two countries for control over the area. India would later lose a portion of the state to China following a brief 1963 war between the two countries. Since 1965, Pakistan has armed, trained, and abetted militants operating in the Indian section, known until last year as the State of Jammu & Kashmir. These militants have been particularly effective in terrorizing the state’s Hindu minority, many of whom have fled the Vale. In recent years, Pakistani-based militants have also been implicated in the killing of Muslim and Bhuddhist civillians who work as civil servants and policemen within the state. 

India and Pakistan have fought three armed conflicts over Jammu & Kashmir in 1948, 1965 and 1999, respectively. A fourth war was fought in 1971, and led to the secession of East Pakistan to form Bangladesh, a new state, which took 60% of Pakistan’s population along with it.  The secession followed years of protests by Bengali activists and leaders against neglect by the Pakistan’s ruling military elite in favor of conquering Kashmir from India. During the 1965 War for instance, Pakistani leaders favored the “Defense of the East lies in the West” policy. As a result, Bengal was guarded by a single poorly-provisioned division of the Pakistani army, while the vast bulk of the military was concentrated on the western front, to assist in invading Kashmir. Following a genocide by the Pakistani army, India intervened to liberate Bangladesh in 1971. Pakistanis have never recovered from the loss of Bengal, and it fuels to this day the desire for revenge by Pakistan’s civilian and military elite in the form of wrestling Jammu & Kashmir away from India. 

Accession & Paramountcy

Before the British withdrawal from South Asia in 1947, the Indian subcontinent consisted of two  domains: the territory directly governed by the colonial administration (“British India”), and the princely states whose rulers  swore allegiance to the British Crown. These fiefdoms operated in a vacuum of time. In essence, their rulers were absolute monarchs within their own realms until the British departure. The territory, controlled by  565 princely states, amounted to one-third of the Indian subcontinent’s landmass. The most remote and the largest of these realms was the princely state of Jammu & Kashmir, whose territory was contiguous to both India and Pakistan.

At the time of Partition in 1947, India’s hundreds of princely rulers were instructed by the departing British to choose a new sovereign to pledge fealty to, what is known as paramountcy in legal terminology. The options before the princes were to join either India or Pakistan. The option of outright independence was theoretically possible, but strongly discouraged. Jammu & Kashmir’s then-princely ruler, Raja Hari Singh first opted for independence, but then chose to accede to India under extenuating circumstances: a joint invasion of the state had been launched by Pakistani army personnel and marauding Pashtun tribesmen. India responded with aggressive military action, and the two countries settled into a stalemate at the close of 1948.  

Since then, the United Nations has more than once interceded to call for a plebiscite for Kashmiris to self-determine their own future. The subsequent challenges of home-grown insurrection and foreign meddling have come at a heavy cost to Kashmiris. As many as 600,000 security personnel, or nearly half the strength of India’s entire military are stationed in Jammu & Kashmir today. A political cost has also been felt across India, where Jammu & Kashmir’s constitutionally sanctioned self-autonomy is deeply unpopular. This unpopularity is due to the high cost of Indian civilian and military lives at the hands of militancy, and has fueled Islamophobia across India.

Following a major attack by Pakistan-based militants in Indian-controlled Jammu & Kashmir in 2019, tensions between the two countries have nearly led to all-out war. The Hindu Nationalist Modi government in New Delhi moved to fulfill a twenty-year campaign promise by the ruling BJP party to abolish Jammu & Kashmir’s high-level of self-autonomy within the Indian Union, despite massive opposition by Hindu, Bhuddist, and Muslim Kashmiris. In response, the Islamist-leaning PTI party government of Imran Khan in Pakistan has led an all out diplomatic effort on the world stage against India, with the threat of military action remaining on the table. 

Democratic Backsliding: Hindu Nationalism & Modi’s Clampdown

A History of Antidemocratic behavior

Before becoming Prime Minister of India, Narenda Modi was banned from entering the United States and the United Kingdom for his role in directing and encouraging violence against Indian Christians and Muslims during his time as Chief Minister of Gujarat. Ironically, Gujarat is the state where Mahatma Gandhi was born and raised. Since coming to office, Modi has faced withering criticism both at home and abroad for his government’s persecution of religious minorities, which has now expanded to include Sikhs and Bhuddhists. Major cases of religious violence have included the gang-rape of underage Muslim girls by Hindu extremists with little to no action by the Modi government to seek the perpatrators’ prosecution. Violence against women has also exploded across India after Modi’s election, with Hindu extremists and their allies carrying out rape attacks across India, with little or no condemnation by Modi’s government. Modi himself abandoned his wife, who lives in a tin hut awaiting his return from the former vice-regal palace that the prime minister resides in in New Delhi. 

Numerous Indian Hindu and non-Hindu writers, academics and entertainers have returned their civilian awards and commendations to the Indian government in protest of Mr. Modi’s policies of discrimination against non-Hindus. The country’s best known authors, Salman Rushie and Arundhati Roy, and its best known economist, Amartya Sen, have on multiple occasions condemned the Modi government for its derisive, divisive, and anti-democratic ways. Rahul Gandhi, leader of Indian National Congress, the country’s major opposition party, has stated that the greatest security threat to India is not its unstable, Islamist-leaning nuclear-armed neighbor of Pakistan, but instead the ideology of Hindu Nationalism that forms the backbone of the BJP and Narenda Modi’s political agenda. 

In the Kashmiri Context

Since the hasty application of President’s rule in 2019, extrajudicial violence, human rights, and civil rights abuses have become the norm in India’s portion of Jammu & Kashmir. Hospitals barely function. For much of the year, an oppressive curfew existed. Flights in and out of Jammu and Kashmir were halted. When US Senator Chris Van Hollen, whose native state of Maryland is home to a large Kashmiri expat population attempted to enter the state on an official visit in 2019, he was gruffly turned back by Indian security officials. Deliberate blinding of young people by security services operating in Jammu & Kashmir has become the norm. Food shortages have grown dire as winter approaches in the Himalyan region. Rape is used as a perpetual tool of intimidation and control by Indian security forces. While the writ of what is effectively martial law endures, the permanent dissolution of the state’s legislature and municipal bodies strongly suggest India’s democracy is backsliding.  

Civil & Human Rights Abuses 

Since the election of Hindu Nationalist Narendra Modi as Prime Minister of India, Kashmiris and Muslims across India have been subject to a growing number of legal restrictions, de jure discrimination and government-sanctioned violence. In a four-month span in 2016, 17,000 adults and children were seriously injured in Jammu & Kashmir by security forces, prompting The Guardian to label the Indian government’s actions as the first instance of mass blinding in world history. Rape and genital mutiliation of female Kashmiris detained by Indian security services is reported as routine behavior in a 550-page study cited by The New York Times. Hundreds of journalists, activists, civil servants and politicians have been unlawfully detained by Indian security forces operating in Jammu & Kashmir. Under the Indian constitution, the prohibition of torture, deprivation of due process of law, extrajudicial violence and the right to a court hearing within 24 hours of detention are prohibited under Articles 20(3), and 22(1) & 22(2). India’s  aggressive actions in the state are unlawful under its very own constitution. 

A Nation Apart: The Importance of Diversity in Jammu & Kashmir 

Jammu & Kashmir’s stunning diversity has always made it unique. The unified state is home to the only Shia and Buddhist majority regions within the subcontinent. The contested state is the only Muslim majority territory within the Indian union. Linguistically, it is home to isolated languages belonging to the Tibetan, ancient Greek, ancient Persian, and modern Indo-Iranian lingual families. Its first constituent assembly included Buddhist lamas who caucused as part of the Muslim-majority led government. India’s first Prime Minister, Jawaharlal Nehru, and Pakistan’s national poet, Muhammad Iqbal, were both ethnic Kashmiris. The state’s first prime minister, Sheikh Abdullah, was an avowed socialist who moonlighted as an Islamic scholar and religious school teacher. Catholic convents operated in the western mountain ranges while Buddhist monasteries dotted the borderlands with Tibet and China. The cantons of Baltistan and Gilgit were home to Jafar’i and Ismaili Shia majorities. The lowlands of Jammu were, until 1947, evenly divided between Sunni Muslims and Pandit Hindus until a Punjabi-initiated pogrom led by Muslims in Pakistan led to a similar pogrom against Muslims in Jammu. Since then, it has been a Hindu-majority region. The Vale of Kashmir’s population at the time of independence was Sunni Muslim with strong influences from Naqshbandi Sufis, giving it the nickname of “Valley of the Saints.” Sikhs lived in communities spread throughout the Vale and Jammu. 

 This impressive array of religious and social pluralism did little to dissuade Kashmiris from a sense of unity and social harmony. As a princely state, Jammu & Kashmir was generally exempt from the rules and regulations that governed civil rights, limited franchise, and judicial due process within British India. The state’s Hindu Dogra Raja (princely ruler) was effectively an autocrat. Few opportunities existed for Hindus not connected to the ruling house to advance themselves economically or socially. Effectively no opportunities for advancement existed for Jammu & Kashmir’s Buddhists, Muslims, Sikhs, and Christians. The lack of land ownership and educational institutions more or less united the population against their ruling dynasty across communal lines that would later divide Indians elsewhere in the subcontinent.  

Understanding Why Jammu & Kashmir Remains an International Flashpoint

Kashmiris 

Kashmiri Muslims themselves are remarkably diverse when it comes to their sects and levels of observance. The former princely state’s most influential democrat, Sheikh Abdullah, was an Islamic scholar, who worried that inclusion in Pakistan might militarize and harm the Kashmiri tradition of social tolerance and religious pluralism. While the preferred outcome for both the Maharaja & Abdullah at the end of British paramountcy in 1947 was independence, Pakistan’s support for an invasion led to both men agreeing to a limited accession to India. Following accession, the Maharaja was removed in favor of a legislative assembly which negotiated stringent terms maintaining Jammu & Kashmir’s autonomy within India beginning in 1951. Meanwhile, the portions of the former princely state that were occupied by Pakistan were allowed home-rule and were not incorporated constitutionally into Pakistan until 1966. Despite these facts, Kashmiris by-and-large never accepted the premise that they were now Indians, or Pakistanis following the end of initial hostilities in 1949. That sense of apartness lingers today both in Indian-controlled Kashmir and its large diaspora, as well as to a lesser extent in Pakistan’s portion of the state. Self-determination remains the favored future status by an overwhelming majority of ethnic Kashmiris across the world.

Pakistan

For Pakistanis, Jammu & Kashmir represents a Paradise Lost in the violence of Partition. The country’s national poet, Muhammad Iqbal, was an ethnic Kashmiri who had called for a Muslim homeland within India to be established in northwest of the country. Aside from the emotional attachment assigned to the memory of Iqbal, Jammu & Kashmir was one of three princely states that Pakistan had originally sought to incorporate within its territory in 1947. All three were  instead absorbed into India through military action. The other two, Junugardh and Hyderabad, had Muslim princely rulers, but Hindu-majority populations and were physically separated from Pakistan by hundreds of miles. Kashmir, whose only land routes were through Pakistan’s portion of Punjab, was the only princely state with a Muslim majority to not accede to Pakistan. From the Pakistani point of view, Kashmir’s right to self-determination was inhibited by a petty prince seeking to further oppress his Muslim subjects by joining Hindu-majority India. This sense of injustice has been nurtured by successive generations of Pakistani elites, and is a salient feature of Pakistan’s political identity and nationalism.  

India

For the first generation of independent Indians, Jammu & Kashmir’s inclusion within the Indian Union was a matter of disproving the notion that India was a state for Hindus alone. Today’s Hindu nationalists, however, believe that several Hindu deities were born in the Vale of Kashmir and on its surrounding mountain peaks, thereby justifying India’s claim to Jammu & Kashmir as a matter of Hindu identity. Until its dissolution as a state at the end of October 2019, Jammu & Kashmir was the only Muslim-majority state in the Indian union. The country’s first prime minister, Pandit-ji Jawaharlal Nehru was himself an ethnic Brahmin Kashmiri. Nehru (himself secular) argued for Jammu & Kashmir’s inclusion within India as proof of the country’s commitment to secularism and the futility of creating Pakistan. Moreover, given the ongoing self-determination movements throughout India, the loss of Jammu & Kashmir could foreshadow a greater undoing of India’s painful unification following the advent of British rule. 

The Role of Pakistan in the Current Crisis 

Pakistan’s policies have had dramatic effects on social cohesion in Jammu & Kashmir. There has been a mass migration of Christians, Sikhs, and Pandits since Pakistan began re-directing militants from the Afghan Jihad against the Soviets to fight in the Himalayan state in the late 1980s and early 1990s. Buddhist leaders, who formerly supported a unified front with Muslim Kashmiris in both the state legislature and in opposing political encroachment by Delhi are now reticent in their support of self-autonomy. Religious communalism imported from India and Pakistan has taken root in Kashmir’s political culture. In turn, this has fueled growing resentment and discrimination against Kashmiris of all faiths and of Muslims throughout India. 

On the international stage, Pakistan’s elites have continued to insist that Jammu & Kashmir is a multilateral dispute, despite a renunciation of third-party involvement in matter following the Simla Accord in 1972. Pakistan’s military elites view the only acceptable outcome is Jammu & Kashmir to be incorporated into Pakistan. Meanwhile, civilian elites lean increasingly towards support of full autonomy for India’s Jammu & Kashmir as a matter of humanitarian values and self-determination per the United Nations Security Council Resolution 47 in 1948 and subsequently, the United Nations Commission for India and Pakistan (UNCIP) Resolution in 1949.

Following a series of diplomatic incidents in 2019 with its neighbors stemming from its past support for militants, Pakistani civilian leaders have, for the moment, managed to convince the country’s security shogunate to allow them to pursue a diplomatic campaign against India’s unconstitutional actions in Jammu & Kashmir. Pakistan has seen major defections in its camp from Arab allies and lackluster support for its position from its “all-weather ally” China. Meanwhile, the United States has pursued a policy (independent of Pakistan’s ) of demanding the reversal of India’s anti-democratic and unconstitutional actions in Jammu & Kashmir. 

Understanding the Argument for Autonomy

At the heart of claims for self-autonomy by Kashmiris are the following legalities: 1) the UN Resolution, 2) Article 35a, and 3) Article 370 of the Indian Constitution. Put another way: India’s decision in 1949 to accept the application of the United Nations’ jurisdiction over the political status of Jammu & Kashmir, along with the subsequent articles in the Indian constitution all support an argument for Jammu & Kashmir’s autonomy. The successive timeline (the UN in 1949 and the constitutional amendments in 1954) strongly suggests that Indian constitutional framers’ intent was to guarantee that Jammu & Kashmir would remain autonomous within India for as long as Kashmiris themselves chose that to be the case. 

Moreover, Jammu & Kashmir’s bilateral agreement with Delhi outlined specific constitutional limits to the Federal Government’s powers in the state. In 1948, the princely ruler joined his domain with the Indian Union through a document known as the Instrument of Accession that ceded only limited sovereignty to New Delhi on matters of communications, defense, and foreign policy. Therefore, legally speaking, Jammu & Kashmir maintains a higher degree of dual sovereignty within the Indian Union than other states, which had elected to accede to India as their paramount sovereign. It should be further noted that sovereignty rested firmly with the government of Jammu & Kashmir at the time of accession following the withdrawal of British paramountcy, as the state was never integrated into British India by either legislation or by dictat by the former colonial rulers, and its status under the Mughals (the preceding paramount authority) was one of a crown dependency rather than full suzerainty. Given the lack of clear legal authority for New Delhi to assume paramount sovereignty, Pakistan and those Kashmiris in favor of autonomy (or even outright independence) point to these technical matters of law for support of their argument. 

Why Constitutional Legalities Matter

Societies are dependent on the rule of law above all else for their democracies to flourish. In India’s case, the pact-making and compromises following independence that led to the Kashmir Compromise were designed in order to affirm India’s commitment to both federalism and the rule of law. The argument went that if Buddhists and Muslims could be coaxed through a high degree of federalism and autonomy within the Union to remain in India’s orbit, both the country’s commitment to secularism and democratic pluralism could be maintained and even enhanced. India and Pakistan both engaged in acts of lawlessness in their immediate land grabs following independence. 

The rushed decision to undo the constitution by a parliament whose Hindu Nationalist majority is openly hostile to Kashmir’s Muslim and Buddhist population represents a major challenge to the country’s democracy and pluralism. This decision by the Indian parliament is not a victory for due legislative process or democracy. Rather, it is the most recent example of democratic backsliding in Asia’s oldest democratic state. The state of Jammu & Kashmir is legally entitled to self-autonomy, and the lack thereof, is an indication that India’s longstanding commitment to constitutional norms is under assault.

Where South Asia Goes From Here

Jammu & Kashmir

With New Delhi’s decision in late October to divide Jammu & Kashmir into two federally administered territories–one with a Muslim majority and another with a slight Bhuddist majority, the Pakistani initiative to force a conclusive rollback of efforts to incorporate Jammu & Kashmir into India have failed. Advocates for Jammu & Kashmir’s autonomy are now dependent on the goodwill of India’s Supreme Court, which has been petitioned to rule on the matter of whether or not the legislative steps taken by the Lok Sabha and Modi government to bring about Jammu & Kashmir’s dissolution are constitutionally legal. Meanwhile, the Modi government in India has announced plans to establish West Bank-style settlements in Jammu & Kashmir for the purposes of “re-Hinduizing” the state. Much of the Pandit Hindu population fled the Vale of Kashmir over the course of the last two decades following a sustained intimidation campaign by both indigenous and foreign-based militants. 

Pakistan

In light of their failures to achieve the security services’ intended outcome in Jammu & Kashmir, efforts to take back political sovereignty lent to Pakistan’s civilian administration by the civil-military establishment have begun in earnest, with several previously sanctioned and jailed political opponents to the ruling Tehreek-e-Insaaf  (PTI) Party being allowed suddenly by Pakistan’s judiciary to travel abroad. Former Prime Minister Yousef Gilani of the Pakistani People’s Party was inexplicably exempted from the country’s Exit Control List to attend an international conference in Cambodia. He was deposed by the Pakistani Supreme Court in 2007 for being in contempt of court following the discovery of a memo damaging the Pakistani army’s credibility as a professional military (as opposed to seeking political power) were given to American officials. At the same time, a far-from-ailing former prime minister Nawaz Sharif was released from jail to fly to London in an “air ambulance.” Video of Sharif emerging looking surprisingly healthy at Heathrow airport has made the rounds online. Sharif was jailed by Pakistani courts for tax evasion and providing falsely-sworn legal affidavits. 

Pakistan’s options are limited, and increasingly narrowing in terms of avoiding a fourth armed-conflict with a neighbor that has defeated them in every conflict they have had over Jammu & Kashmir. Political instability and rabble-rousing against the once-favored Khan government has suddenly been ratched up domestically. Internationally, while the country has greatly recovered in prestige from the Modi government’s multiple misteps over the Jammu & Kashmir crisis, these have not translated into actual gains diplomatically or politically in terms of solving the ongoing tensions over the Himalayan state. Pakistan’s economy is on the verge of collapse, and the country was forced to seek a world-record 13th IMF bailout in 2019. Should the civilian and military elite seek to ease tensions at home through a nationalist distraction, war could break out over Jammu & Kashmir between India & Pakistan. 

India

The ruling Bharatiya Janata Party (BJP) has finally fulfilled a long-standing promise to end the special autonomy of Jammu & Kashmir as provided by the Indian constitution. The BJP and its regional allies believe India should not be a secular state, but rather guided by the country’s majority Hindu faith. However, promises of less corruption and more an economy with better distribution of wealth were the actual reasons the BJP has previously fared well in state and national elections. In 2019, the BJP was able to re-capture control of the Lok Sabha. However, the election victory followed a rise in nationalist sentiment following the downing of an Indian Air Force pilot over Pakistan’s portion of Kashmir. Before the hostilities between the two countries, the BJP was facing a political route. With the Jammu & Kashmir affair now largely behind them.However, Hindu Nationalists from the BJP are facing an electoral rollback in several key states: Haryana, Mahashastra, Kanataka and West Bengal respectively. 

Furthermore, it is unclear how India’s Supreme Court will likely rule on the constitutionality of the Modi government’s legislation in 2019 to dissolve Jammu & Kashmir as a state within the Indian union and place its population under direct federal rule. Unlike Pakistan’s supreme court, which often functions as an extension of military influence in civil affairs, India has a strong and independent judiciary. Should the court decide Jammu & Kashmir’s dissolution was illegal under the constitution, the one tangible gain the BJP has had on the national stage in the past several years would dissolve with it, and calls for Modi and his cabinet to resign might be too strong to resist. 

The Future of Jammu & Kashmir

Without relief from India’s Supreme Court, there is no clear future for Jammu & Kashmir within India. In January 2020, the Supreme Court handed a partial victory to the people of Jammu & Kashmir by ruling that the internet and telecommunications ban put in place by the central government cannot remain in effect indefinitely. However, it will take time for other thorny constitutional matters to be addressed. The BJP’s aggressive plans to use the state’s status as a federal territory in order to achieve a rapid demographic shift from a Muslim majority to Hindu-majority state challenges the basic premise of India being a secular democracy. Pakistan’s commitment to the use of arms to solve the conflict precipitated the current crisis on the Indian side of the border, and threatens to potentially ignite yet another bloody conflict between the two nuclear-armed archrivals. Should the BJP affect demographic change as quickly as they envision, the hopes for self-determination for Kashmiris will be dashed. Without immediate action by the United States and other concerned allies to pressure the Modi government to reverse course, India’s democratic and pluralistic traditions will continue to erode in the face of Hindu nationalism.

Hamza Khan is an advisor to numerous members of the U.S. Congress and formerly a consultant to democratic political movements in the Middle East & South Asia. He is also the executive director of The Pluralism Project. Follow him on Twitter @hamzaskhan.

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