Eric Zuesse – The Likely Outcome of Narendra Modi’s Unconstitutional Seizure of Kashmir

An independent fact-finding mission into the now military-ruled constitutionally autonomous Indian state of Jammu-Kashmir (commonly referred to simply as “Kashmir”) reports that “The whole of Kashmir is, at the moment, a prison, under military control” (https://countercurrents.org/2019/08/kashmir-caged-fact-finding-report). That’s not on account of any rebellion which had occurred there (none did); it is instead simply because of an unprovoked blitz unconstitutional invasion, on August 5th, of virtually only Hindu Indian troops, into the now Hindu-totalitarian-run nation of India’s, only majority-Muslim state, so as to conquer that state totally, and thus to now turn India itself into an apartheid-supremacist regime, much like Israel is over Palestine. Kashmir has suddenly been turned into India’s own Palestine. That land was suddenly grabbed and turned into a huge prison for Muslims.

The longer any Constitution is, the more unmanageable and less just the country or other state tends to be, and India unfortunately has one of the world’s two longest Constitutions. Wikipedia says (http://archive.is/D39aq#selection-3459.0-3572.0) that “The Indian constitution is the world’s longest for a sovereign nation [b] [3] [4] [5]. At its enactment, it had 395 articles in 22 parts and 8 schedules [16]. At about 145,000 words, it is the second-longest active constitution – after the Constitution of Alabama [http://archive.is/D39aq#selection-3459.0-3572.0, that’s the American state of Alabama] – in the world [34].”

When Narendra Modi suddenly announced on August 5th that the Constitutionally guaranteed autonomy of India’s only majority-Muslim state, Kashmir-Jammu, or “J&K,” is now past history, no longer in effect, the brilliant “Moon of Alabama” blogger immediately headlined — and explained why — “India Will Come To Regret Today’s Annexation Of Jammu And Kashmir” (https://www.moonofalabama.org/2019/08/india-will-come-to-regret-todays-annexation-of-jammu-and-kashmir.html). He provided this historical background:

In July 1949, Sheikh Abdullah and three colleagues joined the Indian Constituent Assembly and negotiated the special status of J&K, leading to the adoption of Article 370. This article limited the Union’s legislative power over Kashmir to the three subjects in the Instrument of Accession. If the Union government wanted to extend other provisions of the Indian Constitution, it would have to issue a Presidential Order under Article 370. The state government would have to give prior concurrence to this order. Moreover, the constituent assembly of J&K would have to accept these provisions and incorporate them in the state’s constitution. Once Kashmir’s constitution was framed, there could be no further extension of the Union’s legislative power to the state. This secured J&K’s autonomy.
Incidentally, this was the reason for listing the provisions of Article 370 as “temporary” in the Indian Constitution: the final contours of the state’s constitutional relationship with the Union were to be determined by the constituent assembly of J&K.
Today Amit Shah, the leader of India’s Upper House, announced the unilateral revocation (https://indianexpress.com/article/india/jammu-kashmir-live-updates-section-144-srinagar-omar-abdullah-mehbooba-mufti-5878558/) of Article 370 (and the related Article 35a).

Shah did this by calling Article 370 “temporary” and ignoring that that appellation (“temporary”) had referred only to its being temporary until J&K would officially concur in it, which J&K quickly did. Ever since then, it has been, and remains, permanent (https://www.lawfareblog.com/how-indian-government-changed-legal-status-jammu-and-kashmir, according to the Supreme Court of India ruling on 16 December 2016, https://indiankanoon.org/doc/105489743/, reaffirming that same Court’s earlier ruling, on 10 October 1968, https://indiankanoon.org/doc/1573666/). Therefore, it is clear that only by means of amending India’s Constitution can J&K’s autonomy be undone.

That anonymous blogger (whom I consider to be one of the world’s greatest investigative journalists) then continued:

It is inevitable that the actions today will lead [to] a new insurgency in J&K and beyond. Even if Pakistan’s Prime Minister Imran Khan does not want to support a new guerilla army in J&K, the military and other nationalist Pakistanis will push to supply it with everything that is needed [in order to support such an army].

So: at least unless and until India’s Constitution is amended, Modi’s grab for Kashmir not only is unConstitutional, but if this military occupation continues, then it is likely to spark a war in Kashmir, which could quickly become a war between Hindu-majority India and Muslim-majority Pakistan, next door to India.

How likely is India’s Constitution to be amended so as to allow this military occupation to continue indefinitely?

Wikipedia says (http://archive.is/D39aq#selection-4367.1-4371.284):

The procedure [to amend] is detailed in Article 368. An amendment bill must be passed by each house of Parliament by a two-thirds majority of its total membership when at least two-thirds are present and vote. Certain amendments pertaining to the constitution’s federal nature must also be ratified by a majority of state legislatures.

Whether all of that can be done is highly questionable. So: not only is Modi’s action unConstitutional, but it could remain so – and produce a huge war.

No matter how bad India’s Constitution might be, Modi is far worse, because he is violating it by means of this brutal and entirely unjustifiable military crackdown.

On the same day as the crackdown, Indian Hindus in other parts of the country announced online (https://www.youtube.com/watch?v=8-ZbZWND4JU) that they now planned to relocate to Kashmir. The expectation is that the Muslims in Kashmir will be driven out and replaced by Hindus. This is widely believed to be the Indian Government’s plan, and the reason for this crackdown: an ethnic-cleansing of J&K for the benefit of India’s Hindus.

On August 10th, the New York Times detailed how horrific the crackdown is. Headlining “Inside Kashmir, Cut Off From the World: ‘A Living Hell’ of Anger and Fear” (http://archive.is/BgPMI), they reported, from the city of Srinagar in Kashmir, that:

A sense of coiled menace hung over the locked-down city and the wider region on Saturday, a day after a huge protest erupted into clashes between Kashmiris and Indian security forces.
Shops were shut. A.T.M.s had run dry. Just about all lines to the outside world – internet, mobile phones, even landlines – remained severed, rendering millions of people incommunicado.
The New York Times gained one of the first inside views by a news organization of life under lockdown in Kashmir and found a population that felt besieged, confused, frightened and furious by the seismic events of this week. (…)
Tens of thousands of troops from the Indian Army, the Central Reserve Police Force (a paramilitary unit) and the Kashmiri State police have been deployed in just about every corner of the valley. In some villages, even remote ones, a soldier was posted outside the gate of each family’s home. (…)
Mr. Modi has said the new status will make Kashmir more peaceful and prosperous. In a televised speech on Thursday, which most Kashmiris could not watch because their television service had also been cut, he insisted that turning Kashmir into a federal territory would eliminate corruption, attract investment and move it “forward with new hopes.’’

Narendra Modi had risen to power in India by imposing a 3-day anti-Muslim “pogrom” or “ethnic cleansing” in the state of Gujarat, from 27 February through 1 March of 2002, during which, approximately 150,000 people were driven to refugee camps (http://archive.is/ZdKUN#selection-3395.0-3605.3). So, there is clear reason for India’s 15% Muslim minority to fear the country’s 80% Hindu majority, who, in 2014, elected this bigot, Modi, to lead India. And, now since August 5th, that bigot has an iron grip on India’s only Muslim-majority state, J&K.

The pressure upon Pakistan’s leader, Imran Khan, to respond militarily, against the Modi-led bigots, can only rise, as long as Modi’s unConstitutional aggression, perhaps amounting to an even bigger ethnic cleansing, now against the residents in J&K, continues. A mass-exodus of Muslims from J&K is likely and expected, especially into adjoining Pakistan. As those refugees accumulate there, the pressure on Khan can only rise even further. Already on August 11th, Khan tweeted (https://twitter.com/ImranKhanPTI/status/1160460575454957568) that “Attempt is to change demography of Kashmir through ethnic cleansing. Question is: Will the world watch & appease as they did Hitler at Munich?”

As of yet, there is no actual discussion in the now totalitarian Indian media, regarding a Constitutional Amendment, in order to legalize Modi’s August 5th action. His Government’s official position (http://archive.is/84GEf#selection-3111.1489-3111.2009) is:

Whatever its legal or historical status, the time has come to amend, if not end Article 370. We must not forget that the continuance of Article 370 is the biggest hurdle to a lasting solution to the Kashmir conundrum. As such, it is the other side of the Pulwama massacre (https://en.wikipedia.org/wiki/2019_Pulwama_attack). Strikes across the border are only one way to avenge or redress the latter. But the internal rectification required is the full and complete integration of Jammu and Kashmir with the rest of India. In order to accomplish this, Article 370 must go.

So, they aren’t actually saying that Article 370 “is gone,” but that it “must go.” They are, right at the start, setting up the possibility for an Amendment-resolution, by asserting that “the time has come to amend, if not end Article 370.” They are not actually saying Article 370 has ended. This lacuna is their existing policy’s escape-valve. The regime’s goal is to act as if Article 370 is already simply gone, until the public overwhelmingly assumes that it has somehow been Constitutionally removed – even though it hasn’t. The regime’s control over its press is sufficient to exclude, for now, any public debate about that central issue – it is a non-issue, currently. It is an issue that’s thus being held in abeyance.

But, also, the official position asserts that, come what may, Article 370, and 35A both must no longer continue in force; and specific condemnations of the Muslim faith and of Muslim traditions are prominent in this part of the Government’s official position, such as:

(…) abrogation of laws like Article 370 and 35A will be opposed by vested interests. It has taken decades to rid the Muslim daughters of India of the evil and ignominy of tripletalaaq – a pernicious custom whereby a Muslim male could divorce his wife by a simple rendering of the word talaaq, three times, by any means. Here too, the Muslim clergy, all male dominated, termed such a judgement by the apex court as an assault on their faith, conveniently forgetting that Muslim countries such as Pakistan have already enacted such laws decades ago. It is, thus, time for India to move on and not be held hostage to blackmail and threats from religious power brokers.

So: the Hindu regime is now officially damning Islam, and calling Muslim clergy “religious power brokers.” This is blatantly in violation of India’s 471 page Constitution. Here is from the Constitution’s Table of Contents:

PART III
FUNDAMENTAL RIGHTS
General
12. Definition ………………………………………………………………………………………………. 6
13. Laws inconsistent with or in derogation of the fundamental rights. ………………………………………………………………………………………………………………. 6
Right to Equality
14. Equality before law …………………………………………………………………………………… 6
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth …………………………………………………………………………………………………………………. 7

Among the reasons for the Constitution’s extraordinary length are its many exceptions, such as, for example, Article 371A, which says that nothing in the Constitution “shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.”

However, what will happen if the Government’s promise that its August 5th action will bring ‘peace’ to Kashmir turns out to become too blatantly false in order for that lie to be able to be successfully continued? Perhaps the ‘news’-media will then receive changed instructions, so as to allow a public debate about whether, maybe, there ought to be a Parliamentary initiative to put forth such an Amendment to the Constitution, for consideration. And, if the Government by then has decided to cancel the August 5th action, that failed initiative would be the best possible excuse for doing this: the failure of the initiative to revise Article 370 would become the excuse for cancelling the August 5th action. And, then, the peace-negotiations, could begin, between the J&K state, and the Indian Government. Modi has not locked that exit-door from his policy; and, if he walks through it, he’ll be able to blame the legislature, for failing to remove Article 370.

Every dictatorship thrives on the continuing inability of the public to examine and analyze reality in the way that a scientist does in the practice of his and or her particular profession; and that’s the reason why these intellectual skills, the most basic ones of all – thinking in the way that a scientist does – are not being taught in all of public education, but instead the popular myths are taught to children, and are being reinforced in India and other dictatorships. That makes the public controllable, by the dictators. And so it is, in India today.

As regards the Constitutionality of the measure that the Modi regime is applying so as to impose this theft of control over J&K from J&K’s majority Muslim residents, that measure is Presidential Order C.O. 272 (https://drive.google.com/file/d/1J1BmyUtA-j8v5HHFsx1pD_nKbvKDopI0/view), which was issued on August 5th. The chief blog of India’s Constitutional lawyers, “Indian Constitutional Law and Philosophy” (https://indconlawphil.wordpress.com/), headlined on August 13th “Guest Post: Article 370: The Constitutional challenge” (https://indconlawphil.wordpress.com/author/gautambhatia1988/), and the author, “Nivedhitha K.”, opened that “The Presidential Order C.O. 272 (… ) is the genesis of the subsequent events,” and closed that “the Presidential Order C.O. 272 and all the subsequent activities that have (…) genesis in the presidential order are unconstitutional.” The logical process between the opening and ending was flawless; and, so, there can be no honest legal question about the unConstitutionality of what Modi has been doing to J&K ever since August 5th – Modi’s traitorism to India’s Constitution, and thus to all Indians. The only real question is instead whether India’s ‘news’-media will start to publicize this important fact. Meanwhile, the Government races forward with its rape of India’s Constitution, in the hope that enough J&K Muslims will evacuate that land so as to enable Hindus ‘democratically’ to impose some sort of apartheid anti-Muslim regime there. It’s simply a race against time, all in clear violation of Indian law, to achieve Hindu control there. Modi seems to be as bold as Hitler was. Fascists everywhere are traitors to their country, and this is now being made manifestly clear in India. No nation where the Constitution is unenforced can be a democracy – not even if the Constitution itself might be thought, by some people, to be, itself, democratic.

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