Kashmir: A Part – But Apart – Of India

What I've learned about the Kashmir Issue™

The Modi administration’s unilateral move to scrap Articles 370 and 35A (which afforded special privileges and relative self-autonomy to the state) has widened the conversation on the Kashmir Issue^TM. It’s a contentious move; viewed as the dilution of the ideological, political and legal basis of Jammu and Kashmir’s existence, an attack on Kashmiri identity. If we are to develop some semblance of an opinion amidst the barrage of contradictory accounts, one must go to the very beginning of the Kashmir’s relationship with India and examine the ever-present desire for self-determination against the way Article 370 shaped and was shaped by the political landscape.

According to UN International Law, a people’s right to self-determination – the right to determine one’s political destiny – sits alongside the state’s claim to territorial integrity. Territorial integrity actually takes precedence, presumably to protect the nation-state from unravelling into smaller factions driven by tribalistic loyalties. However, if a people are deemed colonised then they possess the right of self-determination, a right to be independent of the illegitimate governing body. Accordingly, the legitimacy of the azaadi (freedom) movement rests on whether Kashmiri people are being colonised by the Indian state. It demands the examination of the grounds on which several voices have been labelling India as colonising Kashmir.

As per the Instrument of Accession, signed by the Maharaja of Jammu and Kashmir, the region is a territory of India. Furthermore, the Kashmiri Constituent Assembly went as far as to declare itself as “an integral part of India” within Article 3 of its constitution. Since the region is not outside the borders of the Indian state and jurisdiction, it’s incorrect to consider it colonised by India.

There has been a mislabelling of the tyranny of militarisation as colonisation, especially since the military presence has been exhaustive and riddled with human rights violations and a lack of accountability. The Kashmir region has been subject to extensive military occupation – it is one of the most militarised places in the world – by India. At least two generations have only known the extensive military presence. Multiple international human rights bodies have critiqued the operations of the State under Armed Forces (Special Powers) Act and the lack of accountability for abuses of power.

However, digging deeper reveals a complicated picture of the militarisation. It came into existence in the late 1980s, in response to the rise in insurgency that is directly linked to the forced displacement of Kashmiri Pandits and other minorities in the region. Furthermore, the occupation has been justified by ever-present Pakistani meddling in the region, bearing in mind that there have been three Indo-Pakistani wars fought involving Kashmir. Liberation of Kashmiris has remained the ruse for Pakistan’s decades-long meddling. The disillusionment with the India drove Kashmiris towards Pakistan, where they were provided with equipment and training to conduct an armed struggle.

One cannot condone military action simply because it began as a response to internal and external threats to the state. To become blindly accepting of retaliatory military action to threats is to allow nationalism to go unchecked, often placing people’s lives and civil liberties as collateral. That said, condemning the very presence of military personnel in Kashmir conveniently ignores the threats of insurgency and needs of border security. Writing it off as an act of colonisation is intellectually dishonest and recognising this should not be considered apathy towards, or acceptance of, the plight of Kashmiris at the hands of the Indian armed forces.

Having diagnosed militarisation as at the core of Kashmiri resistance to India, it begs the question: if the misdemeanours of the Indian state are the motivation for azaadi, would condemnation and subsequent reformation of the government’s conduct be a solution for Kashmiri grievances? Arguably, the revocation of Article 370 actually opens up the path to reinstatement of the political rights, as understood within the framework of the Indian federal system.

But the Kashmir Issue^TM is not a mere three decades old, and neither is Kashmiri resistance – crucially tied to Article 370 – which has defined the post-partition Kashmiri political landscape. For the purpose of understanding the desire for freedom we must begin at 1947, when Kashmir began as a part – but always somewhat apart – of India.

Upon the request of Kashmir representatives, Article 370 was created, which limited the jurisdiction of the state to matters of communications, ancillary, defence and external affairs. The granting of special privileges to Kashmir alone was a complex political lubricant during turbulent nation-uniting times; an attempt to reconcile the fundamentally different aims of Kashmir (independence) and the centre (integration and access to the geo-strategically important land). Crucially, it was supposed to be temporary measure, prompting Kashmir to transition into adopting the Indian federal constitution.

But Article 370 – not having been removed in a timely manner – has remained a point of contention, rather than reconciliation, and the political landscape of Kashmir over the last 70+ years informs us of the continual souring of relations and diverging of aims.

In a bid to hasten integration, the Indian state impaired democratic functioning in Kashmir. Article 370 was hollowed out by upholding dummy political classes, utilising them to engage in coercive centralisation and curbing non-violent means of expressing dissent. Kashmir’s political classes have been guilty of being complicit with the Indian government. Of course, as the more powerful body, the Indian government must shoulder much of the blame. The most notable instance of the state’s interference and the local government’s complicity is the 1987 Election in Kashmir, recognised as rigged.

The more Article 370 was hollowed out by the India due to their prioritisation of integration, the more strongly Kashmiris clung to it as part of their identity. The acceptance of this conflation of Article 370 and Kashmiri identity has only served as fodder for identity politics. It has prevented us from asking the question of why Kashmiris require an elevated status and set of privileges distinct from other states, when the constitutional federalism affords uniqueness to Indian states anyway. The manner in which it was diluted over the years has caused Kashmiris to develop a strange dichotomic lens – the ‘give us privilege or you’re a tyrant!’ view – when what they are rightfully owed by the Indian state is a reinstating of democratic process and freedom from the state’s abuses of power.

Having understood all this, one has to address what took place on the 5^th of August. Opinion on the constitutionality of the move remains split; a testament to the unchartered territory the Indian government finds themselves in. Given the manner in which the mishandling of Article 370 has caused it to be utilised as a device to fuel claim of self-determination, its removal is a potentially useful manoeuvre to put Kashmir on the path to eventual statehood. However, it is only when more Indians are critical of the blatantly Hindu-nationalist aims of the Modi administration  – instead of blindly approving and curbing voices of dissent – will there be some hope of ensuring that justice is delivered to the Kashmiris.

For, if the claim is with India, then so is the blame – and responsibility to do right by the Kashmiri people.

It is the law that judges, not the judge. - a Norwegian proverb

The Relevance of the Sabarimala Temple Ban Lift

On 28^th September 2018, the Indian Supreme Court upheld the secular laws of the land. In a 4:1 majority verdict, the ban on entry of women of menstruating age into the Sabarimala temple was lifted. In the wake of this contentious decision, the reach of the law into matters of faith is being repeatedly questioned in various forms.

The traditional Sabarimala ban has been justified based on notion of impurity attached to the menstrual cycle; menstruating women are assigned a range of derogatory terms from “temptresses” to “impure”, all possessing the ability to threaten the celibacy of the deity, Ayappa. In actuality, the myths of Ayappa have no such stipulation attached to them, so it seems that our patriarchal culture has simply used religion as a vehicle to discriminate against women. But even if the content of the myths and legends surrounding Ayappa had expressed prejudice against menstruating women, it is not the role of the secular court to set store by these notions and allow the continuation of a discriminatory practice. There is also the context of well-documented and ongoing discrimination and ill-treatment of menstruating women in India to be considered. Prejudice against menstruating women has been maintained by lack of education and patriarchal control, resulting in exclusion of women from key social activities, from disallowing entrance into a kitchen to a temple. The court’s verdict likely acknowledged this cultural prejudice and is a move to lessen the stigma around menstruation.

People protesting against the verdict are accusing the judiciary of unfairly interfering in native traditions and disrespecting Hindu religious sentiment. This attitude represents a fundamental misunderstanding of the role of the judiciary. The Supreme Court ruled upon the subject based on pleas brought forth by petitioners, and not as a deliberate attempt to target the Hindu community, as some dissenting voices are suggesting. To say something along the lines of: “What about that practice X, why is that still acceptable?” forgets the crucial detail that the Sabarimala issue came to the Supreme Court to be evaluated, whilst other issues may not have been. Therefore, judgement can only be passed on the issue at hand and cannot be applied to other situations. This ruling does set a precedent for other such issues of religion that can be seen as conflicting with personal liberties, but each case will be evaluated on its own merit. So, to accuse the Supreme Court of targeting and interfering in a particular religion’s affairs is unfair. The secularity of the judiciary means that the law is given precedent over all other interests and sentiment, and this results in liberal verdicts such as this one and the Section 377  and Triple Talaq ruling – among others – earlier in the year.

Interestingly, Justice Indu Malhotra, the sole objector in the judging panel believed that the anti-ban ruling was ill-fitting because “notions of rationality cannot be invoked in matters of religion”. This separation of the state and religion is a fundamental tenant of a secular state. To those like Justice Malhotra, the judiciary’s deliberate detachment from religion has resulted in a culturally-insensitive ruling; a defect of the secular system. The secularity is considered positive or negative based on the convenience of the issue, simply revealing our own ideological inconsistencies. If the judiciary were to behave in such an inconsistent manner, it would be difficult to establish a common set of values that hold the nation together due to their universal applicability. As much as we value the religious and cultural diversity of our nation, we must also acknowledge that our constitutional code is what attempts to maintain harmony between these varying interests. Thus, occasionally, the state is compelled to invoke rationality in matters of religion, and verdicts should be judged on how they are in keeping with the laws. Whilst Indu Malhotra may have disagreed with her counterparts’ voting and the resulting verdict she ultimately respects the Supreme Court’s jurisdiction.

The strangest aspect of the backlash is the number of women that are protesting the Supreme Court’s verdict. Some people wrongfully conclude from the female opposition that the verdict must be unfeminist, and therefore misguided in its attempt to liberate women. Their ire is considered grounds for criticising the lifting of the ban, using the classic line of “You’re doing this for women’s liberation? Clearly, it’s not liberating to these women”. The premise of this verdict is not to appease women, it is to uphold the constitutional rights of freedom of religious practise and equality under the law, based upon which the barring of entry to a temple on grounds of menstruation is classed as discrimination.

Whilst people are quick to notice the women protesting the verdict, the women who fought for roughly 30 years to end this ban are being conveniently being ignored. Is it worth comparing the number of women on each side of the aisle? Short answer: No. Long answer: The judiciary doesn’t function based on majority rule. The amount of support/opposition for the Sabarimala ban is completely irrelevant to the decision-making process which is focused on upholding the law and thus chose to end a discriminatory practice. Even in a hypothetical scenario where this ban only affected a single person of the population, the judiciary is honour bound to rule against such a practice. At the end of the day, the protesting women the verdict have the option of following their beliefs and not entering Sabarimala, whilst women with opposing beliefs have had their right to practice freely restored by the Indian judiciary. This is the true value of a secular state and religious pluralism.

In an ideal world, conflicts between positions taken by various religious groups would resolve themselves through some kind of consensus. However, in the real world, the interests of religious groups can often clash with individual liberties, and when this conflict cannot be resolved then state intervention is vital in resolving the conflict through application of the law.

“Law is order in liberty, and without order liberty is social chaos.”

~ Archbishop Ireland