India and Dissent in Kashmir.

The Indian government and the right wing nationalist media in India has taken pains to pretend that all is well in Kashmir. Indeed in some parts of Indian administered Kashmir, where Hindus are a majority or at par with the Muslim population things seem to have a semblance of relative calm. However, the majority of Indian Kashmir is seething with dissent over India revoking the special status of the state. This dissent would normally show up in street protests but with curfews and internet and phone lockdown it would seem such protests cannot be organized with ease.

Indian military has been stating that 'terrorists' from across the border, i.e. from Pakistan, are trying to infiltrate across the Line of Control to cause trouble. Pakistan for its account has been urging the Kashmiris on its side and their Afghan and Pakistani sympathizers not to cross the border for fear that such a move would play into India's hands of blaming foreigners for its troubles in Kashmir. Given the emotion on the issue it will be a tough ask for Pakistan to contain the many on its side who want to go and fight for the Kashmiris.

In as much as there has been much attention on the organized militant groups within Pakistan these have been the focus of pressure from Pakistan to rein in their actions. What must worry India is really the disorganized tribal groups, some from Afghanistan, who are more difficult to control. As the study of the Afghan war against the Soviet Union shows that one of the reasons the Mujahideen were so successful was because they were a disorganized force without a clear and hefty command and control structure. Local leaders, usually the tribal chiefs, were free to decide on tactics and timing of attacks and selection of targets. While the Mujahideen may have lacked a coercive strategy to fighting the Soviets, it was precisely this element which always kept the element of surprise on their side and nearly impossible to defeat and disband such Mujahideen forces.

For Indian forces, to ignore that there is no element of armed resistance to their administration of Kashmir is naive. One can argue that who supports them and to what extent, but if the Afghan Mujahideen model of fighting is adopted by these Indian Kashmiri groups then history tells us that it will be virtually impossible for the Indian forces to defeat them. This is why so long as the Indian narrative insists that any armed resistance is not only foreign inspired but foreigners themselves are involved in it, (Pakistanis in their eyes) then they feel they have the moral advantage to carry out whatever tactics the Indian forces use and the extent of the force they use.

Numerous independent sources and Indian Kashmiri leaders have stated empathically that there have been human rights violations in Kashmir. Indian investigations, primarily by the army itself, have not been substantive or independent enough to lend any credibility to such show of transparency. Whenever New Delhi has been questioned about its human rights track record in Kashmir it has been quick to point out others, like Pakistan, on their human rights record. This is very Trumpian in approach as it seems pointing a finger is the best defense. The question is simply Indian human rights record especially in Kashmir and nothing else.

While New Delhi is eager to show it is restoring telephone and internet services in Jammu and Kashmir, albeit it after a 72 day black out, there is no denying that it will monitor the situation and any signs of public protests might well lead to another black out. Kashmiris may well be disheartened by the lack of immediate support on the international stage, but slowly but surely more voices from the United States, the United Kingdom, the European Union and even within India are speaking out against India's handling of the situation. While its response has been that its a domestic matter, Indian decision makers can surely not assume that its a position the world will accept especially if India fails to bring calm to the Kashmir valley.

Pakistan could take the moral high ground and suggest a plebiscite (as per the UN Security Council resolutions of past decades) but add the option for Kashmiris to choose independence rather than only the choice of joining India or Pakistan! It is highly unlikely that India would accept such a proposal given it current stance but most certainly such a move would give the Kashmiri movement an impetus that would color the voice of dissent to one of true freedom.

We will see street agitation increase over the next few months, prior to the harsh winter setting in, and one must remember in the words of Martin Luther King 'the riot is the language of the unheard.' By locking up the Kashmiri leadership, even those who have worked within the concept of Indian Kashmir being a part of the Indian Union, the is no voice that can be heard. In this vacuum the direction of street protests without a leadership can turn ugly. Reason will surrender to passion and restraint will become absent in the face of violent blow back from the Indian armed forces.

I have a fair number of Indian friends and I ask them only one question "If the people of Indian Kashmir really are happy with this decision as the Modi government tells us then why do you need a lockdown and 900,000 armed personnel in Kashmir?' Their usual answer is to deal with terrorist threats. Fair enough, but I have always believed no terrorist even from abroad can operate in a country without some local support and encouragement. Secondly the nature of a terror threat is not mitigated by curfews and lockdowns and roadblocks, they choose their timing and place of attack.

I do believe that while support and encouragement from abroad may have been there for these militant groups, (much like India has supported such groups operating in its neighbors territory) the Kashmir dissent is home grown and for him to move from throwing stones to lobbing grenades is decided by how the Indian armed forces treat the people of Kashmir.

Bangladesh 1971- Kashmir 2019. Some thoughts

The 1971 Bangladesh crisis which emerged from political chaos into a civil war leading to Indian military intervention for the liberation of East Pakistan into the new country of Bangladesh was a monumental event in the history of the South Asian sub-continent. The 1970 elections in then united Pakistan clearly were a victory for Mujib ur Rehman's Awami League in East Pakistan, and rightfully he should have been invited by the then President, General Yahya Khan to form the government. Instead political pressures and the reluctance of both Yahya and Zulfikar Ali Bhutto, the leader of the People's Party who won in West Pakistan, (but not enough to form a majority government) led to a confrontation between the Bengali people of East Pakistan and the military, which was predominantly from West Pakistan.

The resulting civil war and the killings on both sides were barbarian to say the least. The resentment within the Bengali people of East Pakistan had been brewing for decades before as they considered themselves are second class citizens and were in a sense alienated from the mainstream of Pakistan political structure. This is all the more surprising as during the period of the struggle for an Independent Pakistan, in the 1940's, it was the more politically minded Bangalis of what became East Pakistan were were staunch supporters of Mohammed Ali Jinnah, the founder of Pakistan.

India's intervention into East Pakistan was justified on the basis of helping the Bengali people achieve independence and put an end to the civil war. These were considered noble aims, and if one were to look at it independently, perhaps the right course for any neighboring country to take given the situation on the ground. As a Pakistani many of my fellow countrymen would consider me unpatriotic in admitting that the creation of Bangladesh was the result of the actions of not only the leadership of the time in West Pakistan, but also the result of years of policy, both political, social and economic, to treat East Pakistan differently to the rest of the country.


Today, in 2019, we look at the situation of Indian held Kashmir and while one cannot say there is an outright civil war, but there is no denying that there is widespread discontent with the Indian government and the presence of the Indian army. The argument that the curfews and detentions continue because there is a fear that 'miscreants' and 'terrorists' will take advantage of the lifting of the curfews to spread trouble is a false justification. With or without curfews the miscreants and terrorists will find a way to carry out what they wish. This does sound terribly close to what the Pakistan army would do in East Pakistan to justify the curfews and detentions in 1970.

It took Pakistanis time to realize that their policies and actions in what was former East Pakistan were wrong and those actions sowed the seeds of dissent upon which the independence of Bangladesh occurred. It was and is a lesson to countries that they must respect the wishes of its people from all ethnic and religious segments.

India has to accept that the executive suspension of an article of its constitution, which was done contrary to due process (see my older blog https://aqsher.blogspot.com/2019/08/modis-legal-pitfalls-on-art-370.html?m=1), does not swipe the problem away. This is a problem on which the UN has passed resolutions, its a problem on which both India and Pakistan have signed agreements, and in the end its a disputed territory. The Kashmiri leadership, which may not be the right leadership in the eyes of the ruling Indian BJP, is still the political voice of the people of Kashmir. Their detention is itself proof of India's own discomfort with their own position that the people of Kashmir have welcomed the decision that New Delhi has made.

India must learn from history; just as Pakistan thought decisions made in Islamabad would be welcomed Dhaka during the 1970's) similarly India must accept that it is the people of Kashmir themselves who have to make the determination of their own future. India has the assurance that even if the situation within Kashmir reached proportions of those akin to a civil war, Pakistan, having a smaller military would not intervene in a classical war type action. What India fears most is that as it loses it moral argument over its actions in Kashmir and the agitation against its military presence in Indian held Kashmir increases, Pakistan will have little option than to support groups within Indian Kashmir fighting to expel the Indian army. Today, unlike 1970, we have the word 'terrorist' in our political lexicon and this explains India's narrative against Pakistan that it supports terrorists. One could argue that any support from Pakistan to groups fighting the Indian army would be no different than India having supported the Mukhti Bahini who fought against the Pakistan army in Bangladesh!

There is growing international concern over India's human rights record in Kashmir and with the integration of Indian held Kashmir into India fears of a major resettlement of Hindus from India into Kashmir will be encouraged to change the demographics of Kashmir. Allegations abound that Indian forces have arrested close 6,000 people, while some sources suggest as much as 13,000 people in detention. The lock down of Indian Kashmir continues and there are genuine concerns of atrocities by the Indian army against Kashmiris. India's failure to allow human rights groups to visit the area, or indeed allow the international press free access within Indian Kashmir are all disturbing indicators that all is not well with the Indian action on Kashmir.

At the moment it would seem Pakistan is avoiding the more drastic steps it could take and concentrating on a diplomatic front to deal with the Kashmir issue. I suspect that Pakistan may also take a higher moral ground at some stage by suggesting that a referendum should be in both Indian held Kashmir and on the Pakistan side of Kashmir giving the people three choices, a) Join India, b) Join Pakistan and c) form and Independent Kashmir. While at the moment Pakistan may be less likely to consider this proposal, India would on the other hand oppose any referendum of any nature. In terms of creating a better position, albeit it politically and morally, even Pakistan proposing a three option referendum would really put the cat amongst the pigeons.

Media Attention and Kashmir.

The situation is Kashmir has had a mixed bag of media attention. Admittedly the US mainstream media is rather caught up in their own news and mention of Kashmir has been scant to negligible. Even Bernie Sander's scathing comments on what he called the appalling conditions in Indian administered Kashmir barely got a few seconds on the air waves. However, closer to the sub continent itself both Indian and Pakistani media channels have been cranking up the news on the dispute, each with its own narrative.

Sadly international media has looked at the Kashmir issue much like a dead horse that occasionally is beaten to give the semblance of coming to back to life and therefore suffers the fatigue of seventy years. During the Kargil war between India and Pakistan the focus was more on the limited war between them rather than on Kashmir itself. Whenever the leaders of India and Pakistan have mustered up the courage to be civil to each other the customary declaration to 'discuss' the Kashmir issue has been banded around in press statements. The UN for its part has been content to never really discuss the matter believing that both sides are agreeing to discuss the matter. In a sense the international media has much juicier stories from the Trumps and the marriages of royal families rather than talk of state of affairs in Kashmir.

In August of this year all this changed with Indian Prime Minister Modi changing the status of Kashmir. In a sense he not only brought the dead horse of Kashmir back to life, he even injected it with enough political fluid to hop around, perhaps on three legs, to suddenly wake up some quarters of the media to pay attention to the issue. Perhaps the gamble was that the world will not really care if a seventy year old horse lives or dies or indeed if its status is changed to some other animal; now an integrated part of India.

While the international press is slowly focusing on the situation in Indian administered Kashmir, with BBC, New York Times, Washington Post and many others beginning to write about the subject, Indian and Pakistan media have been in a media overdrive. Lets see how this looks from the outside.

India, as I have always said, has always had the louder media voice; the Bollywood effect, the larger economy, the larger country and a media entrenched in the style of Fox News. India's television is a mixture of Hindi and regional languages, with also an effective presence of a few channels largely using English as the medium of delivery. While this is also because in India perhaps English is the language of preference when addressing a wide diverse base of people some of whom only speak their regional tongue and some English (more than Hindi in some cases), this also affords Indian media to be addressing a wider international audience.

I have a number of Indian friends, and some of them are journalists and I do admire their social networking skills. Whenever I introduced an Indian journalist to someone I soon found that they had networked not only with that person so well but also three and four layers of friends around the person I had introduced them to. While this may not help the narrative it sure brings more eyeballs to the screens you want to be seen.

By and large the louder voice of Indian media, especially television is that of those who support the BJP line. Not surprising that Republic TV and Times Now would label any Indian politician disagreeing with PM Modi on Kashmir as a "Pakistan supported traitor". Yes there is also the voice within India of those who question the government and have tried to bring a reasonable debate to the issue, even if drowned by the shouting of the anchors on these channels. The story spin of Indian media is all the more remarkable that patriotism and nationalism seem to be the kingpins upon which a story revolves. Surprisingly the spin of the Indian 'brave' pilot who was shot down, captured by Pakistan and returned, is still spilled out as the hero who shot down a Pakistani F 16, when no such independent third party proof exists. (In fact the US counted the Pakistan inventory and said no F16 was lost).

Whether the arguments are right or wrong the Indian media has positioned itself better on the spin side of things. Ignore what is not in the agenda, push the narrative even if its wrong and when it becomes clear the spin is not working just quietly drop the story. The delivery of their message though is commendable; smartly presented, fluent in English the presenters have an aggressive almost bullying demeanor, but the message is consistent.


Pakistan's media on the other hand perhaps has a better and more compelling narrative, if you follow Urdu. It almost seems that the disease of years past inflicts the Pakistan media even today; the incessant urge to only convince their own people and ignore the international audience. I could not find one well presented international affairs program on any on Pakistan's TV channels. In terms of their Urdu channels I would say on content, delivery and presentation they were excellent, but then there is an audience to which India is speaking and the Pakistan media is not getting their attention. In the print media newspapers like Dawn, The News and others have had an excellent reportage and in fairness those who have criticized PM Imran Khan's handling of the Kashmir issue have not been dubbed as traitors or Indian agents.

I do believe that the situation in Indian Kashmir will not improve over night and New Delhi knows that you cannot detain 4000 people and not expect to have any repercussions in the area. For Indian media the gloss over of the situation on the ground can hold out for some time, but if international medias attention increases and the situation within Indian Kashmir does not improve they will either have to change their narrative or simply drop the story on Kashmir.

On the Pakistan side the government will have to measure its words and avoid fueling radical groups to cross the border and engage in military acts against the Indian forces in Indian controlled Kashmir. Even though home grown acts of violence against Indian forces by Indian Kashmiris will be blamed on Pakistan there is a need for Islamabad to be calm and play the media game better than India. Encouraging the likes of Reuters, CNN and BBC to actually set up field offices on the Pakistan side of Kashmir will give them a psychological victory in the media face off with India. Imran Khan's statement today that Pakistan will not start a war with India is encouraging and it needs to be supported by diplomatic efforts and a better international media presence.

For the moment while I believe India may be wining the media war, Pakistan can quickly turn the tables with some clever thinking by its media moguls and the government. A crucial step will be  to change the footprint of the TV channels in Pakistan by bringing out a couple of decent international affairs programs in English. They have the personnel to do it with comperes like Humaira Shah (Geo TV) and Hamid Mir and many others. Indian media for its part needs to tone down the Fox look alike image and have less shouting and more discussion to the air.

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?

India and Pakistan inching towards war?

After three wars in the past and over two decades of skirmishes on the Kashmir Line of Control (LOC), events of the past couple of weeks have inched the two South Asian nuclear powers closer to war. The incident of the Uri camp on the Indian side which left 18 Indian soldiers has worked Indian media and the hawks into a frenzy of war mongering. When seen in isolation India certainly would be aggrieved by the attack which was carried out by Kashmiri separatists and India's claim that they were armed and supported by Pakistan.

There are two ways to see the current crisis, a short 3 month to 3 year view, or go back to the genesis of the dispute. There cannot be any doubt that the recent protests within Indian Kashmir against the Indian government control of the area by Indian Kashmiri's has left India embarrassed about their assertion that Kashmiri's were well assimilated into the main body of the Indian Union. The fact that there were curfews and violent protests against Delhi in Srinagar and elsewhere in Indian Kashmir cannot be denied as home grown, even though pro Pakistan elements may well have fuelled the fire.

On the flip side there is also every possibility that domestic turmoil within Indian Kashmir will be exploited by both Indian Kashmiris in exile within Pakistan Kashmir and also by militant elements within Pakistan. For Pakistan the difficult situation has been that while it is combating the terrorists of Taliban, Al Qaeda and other anti Pakistan groups within their country, there is the Kashmir card that some other anti Indian militant groups play to draw support even from those terrorist groups that Pakistan army is battling within the country. Roping in this organisations is not easy and for Pakistan to train them and support them is counter productive. The military in Pakistan does not want to make the mistake they made of training and arming the Taliban for the battles within Afghanistan only to see these former allies turn on their hosts; Pakistan.

The hawks on both sides clearly are not interested in measures to de-escalate the current confrontation which is closely resembling an inching towards a limited war. India has already evacuated over a 1,000 villages on their side, supposedly as a precaution, which Pakistan could well be seeing as a precursor to the Indian army crossing the international border. For both armies it is one thing to have skirmishes on the Line of Control in Kashmir and another thing to cross the International Border. For India the attack in Uri gives them the pretext to talk about Pakistan sponsored terrorism and avoid discussion on the situation within Kashmir. For Pakistan the sabre rattling by India allows the Sharif government to try and divert attention of the opposition, led vy Imran Khan, to further besiege the government on the issue of corruption.

Sadly sensible voices are being drowned in the noise as India, unusually, has upped the ante to talk of further surgical strikes. The last time this happened there was a vicious war in the Kargil area in which neither side came out looking the better. However, the military situation has changed and the belief that Pakistan now possesses tactical nuclear weapons, whether they be depleted uranium ammunition or low yield flash nuclear weapons, gives the Pakistan army the edge that should their international border be crossed in a formal war then such weapons would be used. India's response in this sense would only have to be an escalation to deploying non tactical nuclear weapons. Washington is aware of the risks and it would be important that both sides are encouraged to rein in the war mongering as neither side will win this war.

From a Pakistan point of view to be called a sponsor or terrorism is considered absurd having lost over 54,000 personnel and 300,000 civilian losses, including injuries, over the past 17 years in fighting terrorism. There has to also been an acknowledgement that Pakistan cannot reign in each and every group just as India or the US or any country can ensure that rouge terror attacks will not happen. From India's point of view there has to be a visible effort to reduce the attacks on their territory from elements coming across the border.

Both sides should engage in serious discussions to prevent an escalation and both should consider a 3 mile wide buffer along the line of control and ask for the United Nations to administer the buffer zone. I also personally believe that the Kashmiris really do not want either side and seek an independent state of their own. Pakistani side Kashmiris in this sense have not shown an anti Paksitak bias while in contrast Indian Kashmiris have had their moments of love and hate with New Delhi. For the moment both sides have more to gain by pushing for peace rather than testing their military might in a senseless war where there will no winners.