JURIST Guest Columnists Shreya Devgan, a student at Symbosis Law School, Pune, India, discusses recent political developments in Kashmir...
I believe in Amartya Sen’s idea of identity being a composition of multiple affiliations: nationality, language, religion, profession, neighborhood, social commitments, and other connections. I see myself belonging to a lot of groups by virtue of my affiliations: I am a Punjabi from West Punjab (Pakistan) with roots in Kashmir. I strongly admire the cultures of Gujarat and Kerala. I am a feminist. I am a victim of capitalism who believes in socialism. I connect with left or center-left political parties. I believe in Sufism. I am a law student. I don’t like music. I love dark chocolates. I believe that the success of civilization lies in peaceful co-existence. After having written all that, I still think these attributes don’t define my identity. I don’t belong to just one group over others and I might belong to more groups than already mentioned above. Central to my dignity and my harmonized existence with others is the exercise of choice with regard to my affiliations. This right to exercise choice and reasoning relating to one’s affiliations comes with the liberty intrinsic in all human beings. Resentment and even violence arise when we disrespect the inevitability of our plural identities when we adopt the solitarist approach of identity as is advocated by radical political leaders while they capitalize on divisive agenda so they can feed off our insecurities and gain votes. Our thoughts and actions have been to the likes of these leaders. The solution to such differences in the society also lies in ensuring that state action does not stifle aspects of our identity that can lead to insecurities and resentment (the recent domicile laws for Kashmir).
Solitarist approach to identity is an approach in which human beings are seen as members of exactly one group defined by their native civilization or religion. This approach disregards the liberty we exercise in determining our social connections, economic and cultural pursuits, and our political status which is directly manifested in Article 1 of the Charter of the United Nations as the right to self-determination. The diabolical exercise of power in Kashmir does not let the “self” develop which is detrimental to the sense of individuality, cultural diversity, and cooperative action within a community. Mill’s idea of liberty does not define “harm” but it insists that only those actions that are perceived to occasion hurt to an individual apart from the actor can be made the subject of coercion by the society. However, in the name of maintaining security and curbing terrorism, the internet clampdown in Kashmir spanned for over 6 months after the revocation of Article 370 which was the longest restriction on Internet imposed by a democracy worldwide over and it led to the loss of 500,000 jobs and 2.4 billion dollars according to Kashmir Chamber of Commerce and Industry. The Supreme Court of India in January 2020 held access to the internet a fundamental right (Article 19 (1) (a) and Article 19 (1) (g)) in consonance with the UN recommendation but in response to a petition filed by the Foundation for Media Professionals in the Supreme Court seeking restoration of 4G internet services, the government responded saying that access to the internet is not a fundamental right in itself and is only an enabler of the fundamental right.
Section 4 of the Armed Forces Special Powers Act 1950 allows even a non-commissioned officer to issue orders to their subordinates to shoot/kill someone the officer perceives as an interruption to the maintenance of public order. In recent times, public order has also been used to justify mosque closure restrictions imposed on Dargah Hazratbal, Khwaja Naqashband Sahab shrine, and Charar-i-Sharief. It was only a few months back on December 20 that Friday prayers were offered at Jama Masjid, Srinagar after a gap of 19 weeks. This wasn’t simply a violation of the right to freely profess, practice, and propagate religion under Article 25, but was also an inhumane act. Public order is an order that is characterized by the peaceful, rational, respectful, and orderly behavior of the people in a public place. However, it is extremely difficult for me to accept as public order an order imposed against the will of the people and at the cost of their fundamental rights.
The history of elections in Kashmir tells a similar tale of manipulation of the voices of Kashmir, from letting only limited legislative assembly seats to be contested, to not even allowing opposition parties to file nominations at all; ensuring democracy and building Indian nationalism seemed as incompatible goals. In the 1987 elections, the local political expression embodied by the Muslim United Front was suppressed, it lost even after it had secured a majority of votes and the leaders were imprisoned as “anti-nationals” by the new government. This was the determining factor that went on to shape the steps people adopted to pursue their political will as the ballot had clearly betrayed them, a practice as democratic as an election was vitiated by malfeasance and fraud.
The Home Minister Amit Shah very conveniently justified abrogation of Article 370, however, the argument that Article 370 is a temporary provision is not tenable as Clause 7 of the Instrument of Accession clearly lays out that the Instrument does not serve as a commitment for acceptance of the Indian constitution in the future. It might be debated that this decision is not in violation of Article 370 (3) as an amendment was made to Article 367 and not to Article 370 but we know how it is just another way of saying that Article 370 was indirectly amended. The power of the President was justified using Article 370 (1) through which Article 370 (3) was amended by adding sub-clause (4) to Article 367 (that lays down guidelines for interpretation of the Constitution) in order to replace “Constituent Assembly of the State” referred to in clause (2) of Article 370 as “Legislative Assembly of the State”. Moreover, justifying the abrogation by proving support of the Governor of J&K as a replacement to the concurrence of the state of J&K is futile as Governor is a representative of the Central Government and Centre cannot take its own permission to abrogate Article 370.
Military initiatives in Kashmir are characterized by: enforced disappearances, rapes (Kunan-Pashpora rape), killings of protestors and civilians, use of tear gas as a crowd control mechanism, and pellet gun injuries borne by youth and children. Military initiatives implemented without adequate measures to protect civilians from violence, without supplying sufficient basics of life such as food, water, electricity, medicine, communication, and internet services are not counter-productive merely for creating further hostilities within people but can at best be called inhumane. I continue to believe that it is only right to focus on improving the lives of the people instead of flaunting vigor of the state/ robustness of the army in Kashmir because the latter allows even the most peace-loving people to perceive violence as justified on grounds of self-preservation. An army can fight an army but an army cannot fight the masses. The solution lies in letting go of the vitriolic and solitarist approach we use for the Kashmiris, systemic violence as a result of resentment should not be challenged militarily but be addressed by democratic processes like elections, protests, online and offline discussions, unrestricted discourse focusing on civil paths to peace using the machinery of the judiciary, civil society, and media. We should be prepared to face the hostilities resulting from their life long struggle with oppression.
Shreya Devgan is a law student at Symbiosis Law School, Pune, India.
Suggested citation: Shreya Devgan, Impact of Divisive Politics on Kashmir, JURIST – Student Commentary, May 28, 2020, https://www.jurist.org/commentary/2020/05/shreya-devgan-divisive-politics-kashmir/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org
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