India crossed the Rubicon on 5th August 2019 when the President promulgated an order to de-operationalise Article 370 and its adjunct Article 35A of the Constitution of India. Contrary to common perception, this Article has not been scrapped. Ironically, provisions of the Article itself were used to defang it.
Doing away with Jammu & Kashmir’s (J&K) special status and splitting it into two Union Territories (UT) was executed in one fell swoop that left Kashmiri politicians and the separatists dumbstruck. While the process to gradually erode the special status of J&K was set in motion in 1950, de-operationalising the Article now culminated that process to fully integrate J&K into Indian Union.
Article 370 – Contextualising History
Article 370 was introduced in the Indian Constitution on 17th October 1949 as ‘temporary provision concerning the State of Jammu & Kashmir’ under Part XXI of the Constitution titled ‘Temporary, Transitory and Special Provisions’. Article 35 A, a child of Article 370, was introduced through a Presidential Order in 1954, not as part of the main body of the Constitution but in its Appendix I. While Article 370 restricted Indian parliament’s powers concerning J&K to just three subjects, namely- Defence, Communication and Foreign Affair; Article 35 A empowered the state legislature to define permanent resident-ship rights and special privileges.
On one hand, Kashmiri politicians often held out Article 370 as a non-negotiable provision of the Indian Constitution that linked J&K to India. They often warned of serious consequences if the Article was tinkered. On the other hand, a narrative was assiduously built, since the days of Jan Sangh, to vilify Pandit Jawahar Lal Nehru for inserting Article 370into the Constitution. History, they say, has many sides.
Political myths have often tended to obscure historical reality. Resisting any temptation to be drawn into a political debate, suffice to state Nehru, Patel and Gopal Swamy Iyengar were all involved in long-drawn negotiations with Sheikh Abdullah to finalise the architecture of Article 370 .
Much before they departed from India, the British had strategised future scenarios. Fearing the rise of Soviet power, Lt. Gen. Francis Tuker observed’ it was necessary to place Islam between Russian Communism and Hindustan’ that ‘… (needed) introduction of a new Muslim power supported by the science of Britain’ . Praveen Swami interprets Tuker’s views as geopolitical reality obtaining then. While West viewed India of little geopolitical significance, it realised Pakistan’s strategic value .
To quote Late B.G. Verghese, a noted journalist, ‘Literature about the beginning of the conflict is not easily available in India today and (sic) discourse and even policymaking appears to rest on mere say-so and self-serving narrative’.
Not to absolve Nehru of his share of the blame, the truth about Article 370 is complex. It was authored in the backdrop of war, great-power intrigue, bewildering intransigence of Hari Singh and blood-soaked aftermath of the partition. It is pertinent to mention that in the context of Junagarh, the Indian government had committed to Pakistan that it was prepared to ascertain the wishes of the majority in those princely states where ruler’s religion was different than that of the majority population .Further, during negotiation, Sheikh Abdullah had sought an ‘iron clad autonomy’ for J&K but that was not agreed to. Subhash Kashyap, the Constitutional expert, maintains ‘… (of) temporary, transitional, and special (provisions in our constitution) temporary (provision) is the weakest’ . It was this ‘temporary’ status that helped nullify Article 370 now.
De-operationalising Article 370 and After
Notwithstanding a clutch of petitions pending in the Supreme Court, challenging de-operationalizing of Article 370, the outcome is likely to be of academic interest alone. There seems no going back now. It is time we analyse the strategic and security implication of the move.
Besides BJP’s ideological compulsions, the emerging regional security scenario seems to have hastened this constitutional amendment. Given the US commitment to exit Afghanistan, Pakistan has re-emerged as a key player in America’s exit strategy. It would not be an overstatement to say Trump’s offer, to Imran Khan on 22 July 2019, to mediate on Kashmir expedited the Modi government’s move to virtually scrap Article 370.Further, Article 370, in its original form, offered some credibility to Pakistan’s claim of Kashmir being a dispute. De-operationalising the Article and creation of two UTs helped India effectively counter China-Pakistan narrative about the status of J&K and Ladakh.
The erstwhile undivided princely state of J&K had a unique strategic location. It shared border with China, Afghanistan, Pakistan, erstwhile USSR, and India. Today, the state is divided among India, Pakistan, and China. India holds 45% of the territory; China has 20% under its control while the balance is with Pakistan. Pakistan annexed territory under its control, called Pakistan Occupied Kashmir (POK), during 1947 Pakistani regulars led tribal invasion on J&K. China occupied its part in the Ladakh region, firstly, through a silent cartographic invasion in the 1950s to annex Aksai Chin and later during the 1962 Indo-China conflict.
Pakistan ceded part of the Gilgit-Baltistan region’s trans- Karakoram tract, comprising mainly of Shaksgam Valley, to China under the Sino-Pakistan Frontier Agreement of 1963.Shaksgam Valley links Shia dominated Gilgit and Baluchistan in POK with Xinjiang, the Muslim dominated region of China. Strategically important Karakorum highway, linking Pakistan to Xinjiang passes through this area and it is part of China Pakistan Economic Corridor (CPEC) linking China to the Arabian Sea at Gwadar Port in Baluchistan. It is a reality that India is the only country in the world today that is wedged between two hostile nuclear-armed allies.
Pakistan realizes that by scrapping Article 370, India has forced a shift in the geopolitics of the region. General Q. J. Bajwa admits so in ‘Green Book -2020’ wherein he says “the Balakot airstrike and scrapping of Article 370 and 35A by the Narinder Modi government are two significant events that will have a lasting imprint on the geopolitics of the region’ .
Geo-Strategic Implications. India’s decision to alter the status of Kashmir bears both external and internal implications.
US Pull-out from Afghanistan.
The US is fighting the longest war in its history in Afghanistan because of Pakistan. While Pakistan harbours the Taliban commanders and cadres and their command-and-control bases inside its territory, ironically, the US is hesitant to cross the Durand Line to take them on. Pakistan, through its brutal proxies – the Taliban and the Haqqani Network, has compelled the US to negotiate the terms of its surrender in Afghanistan and seek Pakistani support for a face-saving exit .With the elected government in Afghanistan side-lined, Pakistan has re-emerged as a frontline state for the US interests in the region, appropriating to itself an important role in this process and the implementation of the exit deal. Effectively, the Taliban would now catapult to a position of influence in the ruling disposition in Kabul. That would be ominous for India. With a likelihood of Pakistan- Taliban duo controlling Afghanistan, there is a distinct possibility of armed Afghan Jihadis crossing over to Kashmir to escalate violence.
Carving Ladakh out of J&K and declaring it a federally administered UT was a strategic masterstroke. Shell- shocked China protested that its territorial integrity was undermined. G. Parthasarathy, noted foreign policy expert, claims – ‘New Delhi now directly overlooks the areas connecting Tibet and the Shaksgam Valley to China’s troubled Xinjiang Province, where Beijing has treated its Muslim population brutally’ . Ladakh, critical to the security of India’s northern frontier, was so far under the administrative control of J&K’s political executive. New Delhi’s direct control over Ladakh would be a cause of serious concern for China. By this move, India has effectively de-hyphenated China-Pakistan combine from its border disputes.
The Home Minister reiterated India’s long-forgotten claim over Aksai Chin. It indicates a shift in India’s approach. That a strategic road, linking Tibet to with Xinjiang, runs through Aksai Chin could be leveraged by India as a bargaining chip in future border negotiations with China. Additionally, the fact that CPEC passes through an internationally recognized disputed region would add to China’s discomfiture.
A recent revision of foreign investment policy by India is mainly aimed at imposing an economic cost on China. Consequent to its mismanagement of the COVID-19 pandemic, China’s economic woes are likely to increase further .
China may have concern over Pakistani military cozying up to US or about murmurs of dissatisfaction in Pakistan over high rates of interests of Chinese aid for the CPEC project, yet Pakistan has no choice but to stay its most loyal client. Pakistan requires China’s security umbrella and diplomatic protection, especially at the UN. Further, it requires China’s support at the Financial Action Task Force (FATF) that has included Pakistan in the ‘Increased Monitoring (IM) List’, commonly called ‘grey list’.
Post dilution of Article 370, New Delhi has effectively forced a change in the narrative around the Kashmir dispute. With one stroke India has removed ‘India held J&K’ from the bilateral agenda with Pakistan. Rajnath Singh’s statement that future bilateral with Pakistan would only be about POK indicates focus has already shifted across Line of Control (LoC) .
Notwithstanding its dilemma, Pakistan would do all it could to frustrate Indian efforts to restore peace and tranquillity in Kashmir. Pakistani military establishment is adept at fine-tuning their Jihadi strategy to keep Kashmir on the boil. With Afghanistan virtually under its control, to escalate Jihad in Kashmir, Pakistan is bound to utilise Afghan Jihadi assets. However, FATF ‘grey list’ may preclude it from escalating beyond a point to retain deniability.
Further, the Pakistani establishment is now convinced that India’s ‘policy of restraint’ ended after the 2016 Uri attack when India responded with surgical strikes. This realisation was further reinforced with Balakot strikes when Indian Mirage 2000 not only crossed the LoC but the International Border (IB) too. India must continuously upgrade its response to forestall challenges from across the border. One way is to develop a counter-response that imposes huge costs on Pakistan. India also needs to cast aside hesitation to highlight Pakistani brutality in Baluchistan. Without building countervailing pressure points in Pakistan, it will be difficult to change strategic calculus in Rawalpindi.
Muted International Reactions.
Post stripping J&K of its special status, Pakistan went on a diplomatic overdrive but to little avail. On the bilateral level, it also downgraded diplomatic relations, stopped all trading activity and permitting India only limited access to her airspace.
For the first time after 1971, Kashmir was discussed, on the insistence of China, on 16th August 2019 in a closed-door hurdle at UNSC. The US, Russia, France, Germany, and most non-permanent members supported India at UNSC. The votes against India by duplicitous Britain and Northern Ireland counted for nothing. Except for feeble protests by Turkey, Malaysia, and Organisation of Islamic Cooperation (OIC), the rest of the world remained indifferent. Diplomatic failure drove Imran Khan to desperation to rant war and nuclear confrontation. Blunting the Pakistani diplomatic offensive with such finesse is a tribute to mature Indian diplomacy.