Kashmir: Slow painful steps towards conflict.

Recent events on the Indian side of Kashmir have suddenly propelled this half forgotten conflict between India and Pakistan back to the forefront in what is one of the most militarized regions of the world. Sadly the narrative on the situation in Kashmir is mired in propaganda and rhetoric which is all to familiar to the omniscient observer. India's insistence that all is peaceful in Jammu and Kashmir is in sharp contradiction to their own statements that there are curfews, and a virtual lockdown with no cable television, internet or phone services in the area. Pakistan on its side has been trying to step up the war of words and PM Imran Khan's recent address, while trying to draw attention to the emerging conflict between two nuclear armed countries has been seen more as a threat in India rather than a stark warning for both sides to calm things down.

In the war of words, India's voice has been the louder one, while Pakistan's media strategy has always been rather pathetic at the best of times. None of its major TV channels has even one current affairs program aired in English, preferring to use Urdu as the medium of its media voice, almost as if the information effort is only for its own people. India, on the other hand, has a number of channels where neo nationalist anchors spill out the narrative New Delhi embraces to the extent that Indians who simply question if there is peace in the Kashmir valley are suddenly painted as traitors and accused of towing the Pakistan line.

Independent sources, like the New York Times, the Guardian and others have clearly said all is not well in Jammu and Kashmir. India's media answer has been to say its time to talk about Pakistan controlled Kashmir. Few have pointed out that in Pakistan controlled Kashmir there aren't a million army men and para military forces, in Pakistan side of Kashmir there are no curfews and information blackouts, and in general the majority of Kashmiris on the Pakistan side are more concerned about Indian army presence across the border than anything else.

Aside from the jockeying for better narrative, there is a haunting possibility of armed conflict between India and Pakistan. Pakistan with 653,000 active members of its armed forces compared to India's 1.44 million active personnel would unlikely to take on the role of the aggressor for an all out war. Yet a limited war is highly likely in an environment where both sides ability to engage in a dialogue is rapidly being reduced with the current posturing that is going on. India's insistence that it is an internal affair and also agreeing with major powers that matters on Kashmir need to be discussed only in bilateral talks between India and Pakistan suggests that India will argue which ever side of that argument when its wishes.

The possibilities of conflict are embedded in the mentality of the Indian decision makers who have consistently refused to believe that there is an element of Indian Kashmiris who disagree with the Indian central government and would not hesitate to carry out militant actions against the 1 million strong Indian army in Kashmir who these people see as an occupying force. India's belief remains that they are at best miscreants aided and supported by Pakistan. Indeed in the past there have been Pakistan based militant organizations who have either directly carried out attacks or have assisted Indian Kashmiris to attack Indian forces within Indian Kashmir and even though in the past few years these organizations have been reined in, India's argument that all anti Indian acts in Kashmir are not home grown continues.

Herein lie the seeds of a possible conflict between Indian and Pakistan. The current curfew and lockdown in Jammu and Kashmir will stretch into the coming winter months. While there may be pockets where such measures will be relaxed and total return to normalcy will not happen till the winter. With the winter months the harsh climate does make it more difficult for protests and rallies to be organized. As the frustration of Indian Kashmiri's will grow, given that over 2000 have already been arrested in the past two weeks, the more militant elements within Indian Kashmir will realize that violence then is the only language of the unheard.

The result of any violence against Indian forces will immediately result in Delhi blaming Pakistan for such violence. What steps India would then take would depend upon the size and scale of the attack itself, but one thing is clear without bilateral channels of communication open the chances are India would more likely retaliate more to prove to its own people that it has evidence of Pakistan's involvement and hence has done a 'surgical strike'. One has to commend the Indian media machine on the spin they can make out; like insisting till even today that a Pakistan F16 was shot down in the February 2019 air action between the two countries (when US officials have clearly said they have accounted for all of Pakistan's F16 inventory).

Pakistan will retaliate to any 'surgical strike' that is done on its soil, all the more reason now with the way the Kashmir situation has been propelled into the forefront no government in Islamabad can remain quiet to any military strike. Will there be an all out war?

While some would argue that India would like an all out war and it has the numerical numbers to overwhelm Pakistan forces in a classical military conflict. Pakistan on the other hand would prefer a limited conflict, more contained to air skirmishes, with the usual shelling across the border. It cannot take on the role of the aggressor and it is something its military brass know well. However, India's main fear has been that Pakistan's possession of tactical nuclear weapons (where they are way ahead of India) and any large scale attack on Pakistan would result in the use of these weapons. (perhaps this is what Imran Khan was hinting at in his recent speech). India has developed what it calls its 'Cold Start' strategy which aims to neutralize these tactical nuclear weapons within days of the start of a conflict. However, such a strategy assumes a total air superiority over Pakistan, somewhat to the extent that the Coalition forces had over Iraq during the two Gulf wars. India simply does not possess such a superiority in the air at the moment.

Another scenario could well develop from the situation in Kashmir. Assume there are no attacks by Indian Kashmiri militants on Indian forces, but instead there are mass street protests and a public anger over India's moves on Jammu and Kashmir. This is a situation that is more difficult for India to face. It can blame Pakistan for a dozen militant Kashmiri's attacking Indian forces, but it cannot blame Pakistan it say 200,000 people come out on the streets of Srinagar. Such such protests break out and are able to sustain the momentum, as we have seen in many countries in the past, then it presents and awkward situation for the Modi government. In such a situation one cannot rule out a military adventure by the Indian armed forces with the sole aim of distracting the attention from such protests within Jammu and Kashmir.

For the moment one can only hope that some sense of sanity prevails and armed conflict is not an option. In a sense this means that if Pakistan wishes to get some traction to get world powers to focus on the situation then they need to get their public relations act together fast. The narrative that needs to come out more from Islamabad needs to more direct and less jingoistic. Side by side it must open the dialogue with India to avert any armed conflict, and this projection of leaning towards peace is a posture that would work best in the current environment. However, we all know that one cannot clap with only one hand, (unless once is slapping the other person) and it would seem that till the curfews and clamp down in Indian Kashmir is not lifted the situation will remain tense between India and Pakistan.

Kashmir: A dispute that won't go away!

Kashmir is a dispute not between India and Pakistan alone, but a dispute that concerns the people of Kashmir more than anyone else. In this sense we talk of Kashmir as the entire territory of Kashmir. India, under the Modi government, earlier this month, by revoking the special status of its side of Kashmir, while hoping to resolve the issue, actually has brought the dispute back to the center stage. So much so that after almost 50 years the UN Security Council held a closed door discussion on the issue, and while typically, closed door sessions do not end in a resolution or even a press statement, the concern of the international community over peace in the region was visibly apparent.

In the last blog I looked at the legal aspects of the Modi governments actions, now lets see the over all situation of Kashmir, (the entire Kashmir). To suddenly assert that there is no issue now that Article 370 has been modified is willful thinking on the part of India. The fact that since 1947 there is a consensus in the UN and in bilateral talks, between both India and Pakistan, that there is a dispute over Kashmir is  fact and not  fiction. The issue should not be, and in a sense is not, that who is right in either Indian held Kashmir or the Pakistan side Azad Kashmir. (Free Kashmir). The issue goes back to the basic recognition by the UN that the people of Kashmir should determine their own future.

India this week has tried to throw a curve ball by saying they are willing to speak to Pakistan on Kashmir but only the part they see as occupied by Pakistan (Azad Kashmir). This is a narrative that deflects the issue because curfews, arrests, and a lock down of the area is not on the Pakistan side of Kashmir but in Jammu and Kashmir that India occupies. From Amnesty International to Asia Watch, and independent news channels, there is no denying that India has locked down their side of Kashmir. Public assembly is forbidden, internet and phone services either totally blocked or limited coverage, and close to a million Indian troops and paramilitary forces in Jammu and Kashmir clearly testify that the discussion should be on their actions.


One of the weakest aspects of India's argument is that they ignore the fact that there is a UN military observation detachment in Srinagar with the sole purpose of ensuring that Indian and Pakistani military actions do not result in an all out war. If the region was not disputed why would such a UN presence be there in the first place. To suddenly feel that the integration of Jammu and Kashmir has been completed thus India can ignore there were was an issue is much like the proverbial ostrich with his head in the sand.

On the Pakistan side there is a need for understanding that the world community and leadership is tired of this conflict; there is a fatigue in the portals of diplomacy when it comes to discussion on Kashmir. Indeed, over the past three decades India has invested rather well in their diplomatic efforts with Pakistan's allies, even in the Muslim world, to the extent that the outcry over the Indian 'take over' of Jammu and Kashmir has been muted. Few diplomats in Washington, London, Paris, or Moscow see that India's move to remove the special status of Jammu and Kashmir is a precursor for actions that will follow and will have far reaching consequences within India's demographic set up and also on the region.

There is a valid concern that spurned by the recent actions of the Modi government a comprehensive plan of resettling mostly Hindus into the Muslim majority Jammu and Kashmir (something that was not allowed under article 370 before) will commence. To that extent Modi would take a page from the Israeli approach to Palestinian lands and kibbutz style settlements would begin to dot the Indian side of the Kashmir valley. In the long run this will increase communal tensions and reinforce the view that Modi's vision of India is really a vision of a Hindu India.

A good friend of mine from Hyderabad (India) who is a Muslim recently told me that the Modi government now is requiring Muslims (only Muslims one might emphasize) to prove that they are Indian by showing proof of their family being settled in India prior to 1951. My initial reaction was to say to him that this is perhaps fear mongering, till I researched the matter at some length myself. (https://www.independent.co.uk/news/world/asia/india-muslim-residents-citizenship-assam-modi-hindu-nationalism-a9064096.html). While currently four million Muslims in Assam and adjoining areas are affected, it is clear that Modi's government wants to expand this 'foreigner tribunals' across the nation and only to affect Muslims.

 There is little doubt that Modi's own heritage of being nurtured through the ranks of the ultra Hindu nationalist RSS and then into the leadership of the BJP is pivotal in his mind set of how he sees India. While without openly discarding India's secularism, which is enshrined in its constitution, Modi's actions in his second term in office clearly suggest his redefinition of India as mainly for Hindus is underway. This has put him in direct clash with India's Congress Party, who in a sense guided India through the formative, and difficult, years towards a secular India. The pro BJP media is quick to pounce on the Congress and vilify them as 'anti Indian' in their opposition to the way the Modi government is charting the course for India.

On the regional front there is a need for the major powers to understand that by India, or Pakistan or for that matter anyone saying there is no problem in Kashmir it does not mean the problem will go away. In the long term perhaps if Modi had not taken the action he did the Kashmir issue would have remained dormant on the pile of failed diplomacy and conflict resolution. India in that sense has reignited the ambers of a flickering dispute into a fire again. Side by side there is much noise within the BJP ranks to turn the pressure on Pakistan by questions of its own relationship with its four provinces and some political commentators have even suggested to 'again do a Bangladesh on Pakistan'.

Both India and Pakistan have played the 'division card' on each other, perhaps India more successfully. Yet India has to be careful that in projecting its current policies, as shown in Jammu and Kashmir, it can open a can of worms for itself as it is a deeply fragment country based on language, religion, and more importantly a sense of exclusion that exists in many of India's southern states. Pakistan for its side must also understand that it needs to put its own house in order, especially in respect of provinces that have felt neglected by previous governments. In addition, while Pakistan has a smaller population of minorities, in the light of the events in Jammu and Kashmir, it is all the more important that every effort be taken to protect the minorities within Pakistan. If Pakistan wishes to take the moral high ground on this dispute then it has to be more than just words.

For the moment, the worrying aspect of how Modi is shaping the face of India would suggest that 300 million Muslims within India would become more restive as they feel more cornered and boxed in. In so far as Jammu and Kashmir is concerned we will not really know how the people there have accepted or not the Modi decision only after curfews and restrictions are removed. India cannot continue to argue that its million man army presence is to 'stop miscreants' from taking advantage of the situation and causing trouble. The longer the lock down and restrictions continue the weaker the moral argument of Modi's actions becomes. But then as my friend for Hyderabad said 'Modi does not care'.

Modi's Legal pitfalls on Art 370

Beyond the politics and passionate pleadings of each side of the Kashmir issue, and the abrogation of Article 370 of the Indian constitution, there is a need to understand the legal position that PM Modi's government has taken. Watching the pro Modi media in India, there is a narrative that the change to Kashmir's special status (accorded under Art 370) has been done in a constitutional manner and 'integration' into India was long over due. Little or no effort has been made to understand why the article was there in the first place and how, if at all, it could be changed.

When the Hindu Maharajah of Kashmir (a Muslim dominant princely state) decided to accede to India it was recognized that Kashmir would have its own Constituent Assembly and its own constitution. The problem remained for India that the Instrument of Accession alone did not address the issue of the British (who ruled India till 1947) wanting a plebiscite in Jammu and Kashmir to determine the will of the people on whether they wished to join India or Pakistan. The constituent assembly in a sense gave India the legal standing to argue that by ratifying the instrument of accession the Jammu and Kashmir Constituent Assembly had removed the need for a plebiscite. So far so good; however, the Hindu Maharajah knew of the prevalent view amongst the majority Muslim population of Kashmir that the resulting accession would result in a massive migration of Indian based Hindus into Kashmir.

Thus a form of protection was sought from India to give Kashmir a special status (perhaps more so that it would be the only 'state' in India with a Muslim majority). In consequence Article 370 was enacted which gave India full authority on defense and foreign affairs, but in return recognized that Jammu and Kashmir could have its own constitution and, most importantly, guaranteed special status to Kashmir which would prevent Indians (not only Hindus) who were not domiciled Kashmiris from buying land and property in Jammu and Kashmir.

Now lets deal with the provisions of the now infamous Article 370 itself.

Indeed the Article as a whole was intended to be a temporary measure and hence was included in the section of Temporary provisions of the Indian constitution as it was envisaged that at sometime in the future the Article would be amended or removed. However, the abrogation or removal of the article in its entirety could only be done on recommendation of the Jammu and Kashmir Constituent Assembly (Article 370 (1) (d).

The Article in 370 (1)(d) states that other provisions of the Indian constitution can be made applicable to J&K with such modifications being made by a presidential order. However, such an order must have the concurrence of the J&K government and is limited to the extent of an applicability of a provision of the Indian constitution. However, to completely make Article 370 inoperative the President of India must have the recommendation of the J&K Constituent Assembly (Art 370 (1) (d).

Indeed since the Article was incorporated into the Indian constitution many modifications have been implemented with the consent of the J&K government of the time, the most notable being in 1957 and 1964. Because Kashmir was the only princely state that chose to have its own constituent assembly (all other Princely states accepted the Indian Constitution) the understanding of having this special status and right was the genesis of the Article 370.

The Constituent Assembly of J&K in 1957 dissolved itself without making any recommendation for an amendment or abrogation to Article 370. In a legal sense what the Constituent Assembly was saying that by dissolving itself it carves out a permanence to Article 370 as once dissolved there is no Assembly to recommend the abrogation of Article 370. It is interesting to note that the Indian Supreme Court has ruled numerous times that Article 370 is now a permanent part of the Indian Constitution as the only assembly that could recommend its abrogation dissolved itself without recommending its abrogation or offering an alternate mechanism.

How does the Presidential order of the Modi government violate the legal principles of the Article and the process laid out.

1. While Article 370(1)(d) allows Presidential orders to be issued to modify Article 370 (not scrap it) such modification must be recommended by the Jammu and Kashmir state government. Since J&K is currently under Presidential rule (and therefore no state elected government) the Modi government did not think it necessary to seek such a recommendation for modification.

2. Since there is a major problem that the Constituent Assembly of J&K does not exist, having dissolved itself in 1957, the Modi government has amended Article 367 of the Indian Constitution. This article refers to interpretations and definitions and a new sub clause 367(4)(d) has been inserted which says that words such as "Constituent Assembly" in Article 370(3) must 'read as Legislative Assembly of the State". Since the Presidential power does not exist to change Article 370(3) which defines the Constituent Assembly (not the government of J&K) only to recommend abrogation of Article 370, by changing the definition of the assembly the Modi government paves the way at sometime in the future to have the Legislative Assembly of J&K recommend the abrogation of Article 370.

3.Since there is no legislative assembly in J&K and the state is under Presidential rule the newly amended Article 367 applied to Article 370(3) cannot be used. Thus the Modi government decided to take the matter to the Indian Parliament and recommend the changes through the bill the majority BJP party got passed through both houses of Parliament. While political supporters of Modi and the BJP will argue in the absence of the legislative assembly of J&K and the state being under Presidential rule the Indian Parliament has the authority to pass such a bill. However, legally this is walking on thin ice as there is no provision in the Indian constitution to do this even with a Union State fully integrated into India.


The legal pitfalls of this political chicanery are plentiful, but the question remains if this matter will yet again end up in the Indian Supreme Court. Below are some glaring issues that will be put to test.


A. By modifying Article 367 and redefining Constituent Assembly as "Legislative State Assembly" there is a contradiction now in the Indian Constitution as Article 370(3) remains with the words Constituent Assembly, while Article 367 (4) (the new sub clause) calls it the Legislative State Assembly. Why has this happened? Because the President does not have the power to modify Article 370(3) and it would be clear that the change to Article 367 has been done to let the President do something indirectly which he could not do directly.

The basic structure of the Constitution does not allow the President to use his constitutional powers accorded to him to do an act which the constitution never intended for him to do.  The Supreme Court in India has ruled on this doctrine a number of times and specifically on the issue of Article 370.

B. The amendment to Article 367 with inserting a sub clause violates a basic principle of constitutional law. An interpretational provision of a constitution cannot over ride the effect of an article of the constitution. In other words by simply defining a word differently does not mean that effect of the provision of the articles of the constitution have changed.

C. The fact that since 1957, when the Constituent Assembly of Jammu and Kashmir dissolved itself no subsequent Legislative State Assembly of J&K ever raised the issue of enacting new laws within J&K allowing it the power to recommend the abrogation of Article 370 clearly shows much like its predecessor there was always the intent of the J&K legislative personalities to make Article 370 a permanent feature of their legal link with India.


On an international level there is a larger argument that in having different accords over Kashmir with Pakistan, India recognizes that its a disputed territory. However insofar as the internal legal position of the Modi move is concerned there is little doubt that the political agenda of integration has ignored the legal reality related to Jammu and Kashmir. Eventually this might well end up in the Supreme Court of India, however it remains to be seen if the lands highest court can reverse the decision of the Modi government.

India's Kashmir Move.

Indian Prime Ministers move to change the status of Indian Kashmir was no surprise. He prodded and poked on the subject through the recent elections, each prod, each poke, stoking the fires of Hindu nationalist sentiment. The abrogation of Art 370 of the Indian constitution, which gave special status of Kashmir as a semi autonomous region, and, more importantly, ensured that Hindus would not flood the disputed state to claim a majority in Kashmir, protected the Kashmir's from allowing resettlement of Hindus from elsewhere in India, raises some important issues. The impact within India and India's handling of a delicate matter concerning Kashmir will resonate across the whole of India. Further the move brings into question the argument where Mr Modi is embracing a nationalist Hindu agenda, which sits at the core of the BJP philosophy, or can the secular India still speak for whole of India. Finally there is the more volatile situation with Pakistan, who control part of Kashmir and have seen the resolution of the Kashmir issue as fundamental to better ties with India.


While supporters of PM Modi tout the fact that both houses of the Indian parliament overwhelmingly voted to remove the autonomous status of Kashmir, the fact remains that the vote was accompanied by a virtual lock down in Kashmir itself. With internet, mobile phone services suspended and selective curfews and arrests of key Muslim political figures within Kashmir  clearly suggests that barring the Hindu nationalists, like the RSS, (Modi himself having risen through their ranks) the majority Muslims within Kashmir have not welcomed the decision with open arms.

Herein lies the problem because with a huge military presence within Kashmir the language of street protest may not be possible. Various international human rights organizations have been warning in the past few years that Indian military and police behavior in Indian Kashmir has been brutal and inhumane. With the avenue of street protests closed to the people of Kashmir the more likely form of protest will be selective arson attacks on Indian forces within Kashmir. This plays into the hands of  the Muslim Kashmiris who have always argued that Indian forces in Kashmir must be expelled from Kashmir and forward their agenda of a free Kashmir.

One would therefore argue that should attacks on Indian forces increase, which given this decision by the Modi government will happen, India will be quick to blame Pakistan for sponsoring those attacks and cross border tensions between India and Pakistan will increase. Realistically I do not think given the way things are moving in Indian Kashmir the militants do not need encouragement from Pakistan or anyone to carry out their attacks. I would even doubt that with the abolition of Kashmir's autonomous status even the Pakistanis can persuade the militants to show restraint. In that sense the Modi government has created the conditions for more turmoil within Indian Kashmir rather than solve anything.

On a broader front a majority of the leadership of the ruling BJP embrace the RSS ideology of a Hindustan (India) for Hindus. To them Indian Kashmir was the only Indian state where there is a non Hindu majority and thus a non Hindu (Muslim) local government. This was for decades unacceptable to the RSS who argue that the protection to Indian Kashmiris (mostly Muslims) under Article 370 was always seen as a temporary solution which Mr Nehru had agreed to in the early 1950's to appease the pro Indian Muslims in Kashmir and to take the sting out of the United Nations insistence of a plebiscite in all of Kashmir (both Indian and Pakistani) to allow the people to determine their own fate.

Indeed for decades the UN stalemate has continued and even as the vote on abrogating Artile 370 was taking place let us not forget that in Jammu and Kashmir (Indian Kashmir) there were and are United Nations observers monitoring the situation. If the region was not a disputed territory why then have the UN presence? PM Modi basically has thrown out 70 years of UN resolutions and bilateral agreements with Pakistan with this move. The voices in India who want the slogan of India for Hindus may call Modi bold and brave, those who see the slow death of India's secular democracy and want regional peace would call Modi's move foolish and idiotic.

There is no doubt after this move settlements will crop up in Indian Kashmir for the settlement of Hindus, (much like Israel did with Palestinian lands) and with each settlement, each new home the Kashmiris will be driven into a corner. Modi's bet, along with the RSS is that the demographic balance should be titled to the BJP Hindu majority quickly enough to make an impact in the next general elections. However, as the Muslim Kashmiris get driven into a corner the actions will become more violent and desperate. Overall Indian Kashmir will move from having been an autonomous state to an Indian occupied state and herein lies the seeds for instability within the region.

India's only option then will be to blame Pakistan and the tit for tat limited military activity between India and Pakistan will  increase. While there seem to be enough sensible people to avoid an all out conflict given both have nuclear weapons, be assured that limited battles will be the order of the day.

India's bigger problem could well be that Indian Muslims, who are about 172 million (15% of the population) may  become the recruiting ground for the more militant organizations like the Taliban and perhaps new home grown movements. There is not doubt that during the Modi government hate crimes against Muslims have been increasing and given the Kashmir move the reaction from militant groups will become more acute and sharper. Indeed these groups could well be supported from overseas but in essence this is a risk that India must be aware of.

Modi government has had a reasonably good public relations presence on the world scene to not be criticized too severely what it will call and 'internal matter'. Muslim governments have not been briefed enough by say Pakistan and the Kashmiris enough to know the implications of this move, which essentially does to the Kashmiris what the Israelis did to the Palestinians. Therefore one cannot be certain of how most of the Muslim countries will react to this move, which most likely will be muted criticism at best.


In conclusion it would seem that while the move of the Modi government is not reversible, more for political reasons, it does present itself as the single more defining moment of modern India. Does this end the secular nature of India? Does this imply that Modi will appease the nationalist Hindu caucus irrespective of the consequences to India and the region? Does the Modi government understand that changing the status of Indian Kashmir creates the seeds for more violence and unrest?