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Opinion
Wednesday Aug 05 2020
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August 5: A legal sleight of hand with a catastrophic fallout

Indian security personnel detain a Kashmiri man during protests by students in Srinagar. —AFP

It is exactly one year since India brazenly foisted a legal heist on the state of Jammu and Kashmir and its people to take away the remnants of constitutionally guaranteed autonomy it enjoyed besides breaking the state itself broken into two inferior appendages.

The Indian government played a legal sleight of hand, which without a judiciary rendered subservient to the Modi regime, would not stand legal scrutiny in any land with a functional system.

Article 370 of the Indian constitution had manifested the only link between the state and the union and had guaranteed autonomy to the state through restrictions on the powers of the union government. Modi government used article 367 to narrowly reinterpret the constitution to do away with the requirement of the consent of the state constituent assembly, which did not exist, to make article 370 inoperative through subsection (3), using the governor as the state authority for consent, despite being an appointee and representative of the union government and not of the state.

Human-made laws unlike laws that govern nature can be and are subject to capricious violations. History is fraught with lawless persons using power to subvert the rule of law, flout norms, and established conventions.

Indian government rode roughshod to dismantle the state on the strength of its brute majority and brutal use of its security forces. Fearing popular revolt and reprisals, the Indian government, in the preceding days, had surreptitiously reinforced its forces in Kashmir, which already had the dubious distinction of being the most militarised region in the world.

One day prior to that fateful morning, they enforced an unprecedented clampdown with incarceration of the entire seven million inhabitants of Kashmir, who for the next five months were deprived of basic amenities and means of communications.

People could not mourn the deaths of their loved ones nor could they pray in the mosques. The arrests of tens of thousands of people without any legal grounds compounded the forced endurance of dark winter months in complete isolation.

Those arrested included the politicians who for decades had been running the charade for India. They even kept the former chief minister of the state, Farooq Abdullah incarcerated under an archaic public security act for over eight months and the highest court in India denied the basic habeas corpus petition moved on his behalf.

Even a year later, outside communication in Kashmir remains at the mercy of the Indian authorities. Whether Kashmiris can travel outside India, depends on the whims of security control personnel at the Indian airports.

The initial act of doing away the autonomy and dismemberment of the state was only a part of asserting Indian hegemony over the state; the real goal had always been turning Kashmir into a settler colony.

That operation began in earnest with the appointment of an inferior officer to preside over the new rudimentary union territory and exclusion of locals from policymaking at all levels. Ever since, a spate of consequential executive orders without a semblance of legislative approval to temper the existing laws with impunity have become the norm with the singular and ultimate goal of demographic engineering of the region.

One of the most consequential rules included alterations in the requirements for being a permanent resident of the state, a law in place since the Dogra rule in the state — ironically, introduced upon the pleadings of Kashmiri Hindus at that time fearing an influx from the neighboring province of Punjab. With those alterations in place, the unrepresentative authorities started a generous issuance of domicile certificates to anyone claiming to have lived in the place for 15 years.

As per media reports, that has meant over 30,000 new residents including many retired army personnel. Barring a few restrictions, most of the jobs in Kashmir are now open for everyone from India with devastating economic consequences down the road.

Coupled with those developments, the plundering of the resources of the valley remains high on the agenda of the virtual colonial administration in Kashmir in the form of opening mining operations that could also bring  ecological ruin to the pristine valley. That was always high on the Indian agenda where people of Kashmir do not figure much but a visible demonstration of Indian dominance does.

That could not be clearer than before with the Indian government being hell-bent on sending potentially COVID-19 infested pilgrims and labourers to Kashmir. The pilgrimage was conveniently cancelled and non-locals taken out of the state last year prior to removal of the state autonomy and start of incarceration of Kashmiris.

With the pandemic enveloping the entire world and the conditions in India itself bordering on dire, the hubristic insistence on going ahead with pilgrimage and sending labourers to the valley can be only conceived as an act of bioterrorism being unleashed on Kashmir. That would mark an addition to the catalogue of atrocities that the population in the valley has already endured.

India might be running high after having dismembered and dominated Kashmir but now, the unfolding events portend the unravelling of the shortsightedness of the Modi regime.

Besides its ludicrous response to the pandemic where projections indicate infected cases in India topping 3.5 million by October, relations with countries in the immediate neighbourhood are in total shambles.

Indian parliamentarians might have jumped over one another to support the government in changing the status of the Jammu and Kashmir state, but the changed status of Ladakh region and the reclamation of Aksai Chin did stir the Chinese giant from its slumber. It declared its earlier agreements with India on an un-demarcated border in the region as void and pushed its army further into the territory held by India.

If the history of Sino-India war were any guide, India would be pricking China at its own peril. Then, acts carried under hubris and deceit come with an expiry date beyond which those only lead to ruin both nationally and internationally. Only if the Modi government had someone to understand the abyss that it is straddling but some analyst pointed that India never had a government like this, completely bereft of intellectual power.

Rajiv Kumar is a professor at The University of Heidelberg, Germany. He served on the faculty of Kashmir University from 1984-1990. He can be reached at [email protected]