1.The Kashmir outreach and the Afghan storm

The Government’s J&K moves may be part of a more complex regional game involving India’s security interests

Two years after its dramatic decision to reorganise Jammu and Kashmir (J&K), the Government appears to be rethinking some of the objectives it announced then as Prime Minister Narendra Modi engages the erstwhile State’s former leadership to discuss the future of the political process there. Mr. Modi and Home Minister Amit Shah had spoken of three specific objectives in the move to amend Article 370 on August 5, 2019, apart from ending terrorism and violence in J&K: flooding the region with development initiatives and investment from other parts of the country; reclaiming those parts of the territory now occupied by Pakistan and China (Pakistan Occupied Kashmir, or PoK, and Aksai Chin), and ending the rule of political “dynasties” in J&K — that they claimed had held the progress of the State hostage — in favour of a “Naya Kashmir” polity. Above all, the Government underlined, as External Affairs Minister S. Jaishankar undertook a series of visits abroad to explain its nuances, the decision was purely an “internal” one, and did not affect India’s ties with any other country.

Objectives and reality

While two years may not be long enough to truly judge the success of its intentions, particularly given the impact of the novel coronavirus pandemic, it is certainly fair to say the Government has failed to make headway with most of those objectives. Incidents of terrorism and violence have no doubt decreased since 2019, but that has come at the cost of massive privations to the people in the name of security. More than 5,000 people were arrested, the longest Internet shutdown in any democracy was instituted for 213 days, and the deployment of troops still remains at peacetime highs. The plight of the ordinary Kashmiri, battling daily intimidations from security forces, the closure of schools and online education for their children, and diminishing sources of income, can only be imagined. Attempts to convince investors that this is a lasting peace have floundered thus far, and while the Government claims it has more than 400 memorandaof understanding from businesses nationwide promising to invest in the Union Territory, this can only be tested once the money actually comes in, given the state of the national economy, even prior to the pandemic.

Border situation

Mr. Shah’s claim in Parliament that his government was willing to “sacrifice lives” to ensure the return of Pakistan Occupied Kashmir and Aksai Chin, appears a much more difficult proposition in the face of the Chinese aggression at the Line of Actual Control (LAC) since April 2020. Chinese actions, and the failure of military and diplomatic talks to ensure the restoration of status quo ante have been coupled with the growing threat perception, articulated by the Indian Army Chief, that any future conflict at the LAC would need to account for a two-front “situation” with Pakistan at the Line of Control as well, and vice versa. Even the United States is unlikely to countenance any military manoeuvre involving PoK now, given its proximity to the Afghanistan theatre, and the U.S.’s pullout and the increasing strength of the Taliban will add to the risk calculus in Delhi against such actions.

Finally, the outreach to 14 leaders from J&K, many of whom were arrested for months, indicates that the Government’s plan for a “Naya Kashmir” polity is not drastically different from the previous polity — that the Home Minister referred to derisively as the “Gupkar Gang” — despite intervening attempts at building a new party (Apni Party), sidelining the main parties during consultations and even promoting “District Development Councillors” as the new Kashmiri leadership during meetings with foreign diplomats.

Hardly an ‘internal’ issue

The Government’s repeated assertion that its August 5 decision on J&K was an “internal one” has also been put to a rigorous test. Despite considerable exertions by the Ministry of External Affairs and its missions worldwide, J&K has now been discussed in more capitals, including the U.S. Congress, Parliaments in the United Kingdom, the European Union (EU) and the Nordic countries, than ever before, while several delegations of EU parliamentarians, Ambassadors and United Nations diplomats have been escorted to the valley to elicit their approval for the situation there. It is ironic that countries which were openly supportive of the Modi government’s military action in PoK in 2016 after the Uri attack, and of the Balakot strikes by the Indian Air Force in Pakistan after the Pulwama attack in 2019, have even so, chosen to be so critical of a political and internal move. In addition, the J&K dispute has been discussed at least three times at the UN Security Council, which had not touched the issue since 1971.

Dialogue with Pakistan

What is more galling is the notion that the decision to engage the previous leadership, to discuss the restart of a political process and the reversal of the August 5 decision to downgrade the State to a Union Territory, comes not from domestic considerations alone. In the past few months, it has been made clear that a backchannel dialogue between India and Pakistan is discussing assurances on J&K that would enable a broader bilateral dialogue. Pakistan too has climbed down considerably from its previous demands of plebiscite and UN resolutions, to Pakistan Prime Minister Imran Khan’s more recent statements that he would be willing to talk if there was a reversal in some of the August 5 steps, or if the Modi government proffers a “roadmap” on J&K. Even Pakistan’s insistence on the restoration of Article 370 was a turnaround from the days when it rejected the Article’s validity. Both the downturn in Pakistan-backed violence in Jammu-Kashmir as well the softening of rhetoric suggest a flexibility borne out of international pressure as well as the sustained threat of a (Pakistan) blacklisting by the Financial Action Task Force.

Such compromises by hawkish establishments in Delhi and Islamabad (and Rawalpindi) do not come from an internal rethink by themselves, and it would seem obvious that external prompting from the U.S., keen to complete its Afghanistan pullout and its negotiations with the Taliban, as well as nudges from Saudi Arabia, Qatar and the United Arab Emirates, of the kind publicly referred to by the UAE envoy as “mediation”,have been at work as well. The recent disclosure by the Qatari special envoy that Indian officials have engaged the Taliban leadership in Doha is also part of that matrix. The Government’s decision to shut down operations at two of its Afghanistan consulates, in Jalalabad and Herat, which was earlier described as a temporary move due to the novel coronavirus pandemic, is clearly linked to safety concerns in the phase after the U.S. pullout.

The U.S. factor

In the broader geopolitical context, as the drumbeats to a U.S.-China confrontation grow louder, India’s global strategies will be further put to test. The U.S.’s expectations of cooperation from India to its East, on China and the Indo-Pacific, have clearly not been commensurate with New Delhi’s expectations that America would reduce India’s threats to its west, from Afghanistan and Pakistan. Instead, it would seem, the Government’s attempts to sever the Gordian knot in Jammu and Kashmir with its moves two years ago, are being drawn into a more complex game of regional dominoes, where India’s security interests are increasingly in play.

On 5th August 2019, President of India in the exercise of the powers conferred by Clause (1) of Article 370 of the Constitution had issued the Constitution (Application to Jammu and Kashmir) Order, 2019. Through this, Government of India has made modifications in Article 370 itself (not revoked it).

With this, the Government of India has dramatically altered the relationship between the state of Jammu and Kashmir and the Indian Union.

Background

• On October 17, 1949, Article 370 was added to the Indian constitution, as a ‘temporary provision’, which exempted Jammu & Kashmir, permitting it to draft its own Constitution and restricting the Indian Parliament’s legislative powers in the state.
  • It was introduced into the draft constitution by N Gopalaswami Ayyangar as Article 306 A.
• Under Article 370: The Constituent Assembly of Jammu & Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state,
  
  
  • The J&K Constituent Assembly was dissolved after it drafted the state’s constitution. Clause 3 of the article 370 gives the President of India the power to amend its provisions and scope.
• Article 35A stems from Article 370 and was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly.
  • Article 35A empowers the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.
  • It appears in Appendix I of the Constitution.

Key Changes

• The Constitution (Application to Jammu and Kashmir) Order, 2019 has replaced Presidential Order of 1954.
• Subsequently, the Jammu and Kashmir Reorganisation Bill, 2019, passed by Parliament divides the state of Jammu and Kashmir into two new Union Territories (UTs): Jammu & Kashmir, and Ladakh.
  • This is the first time that a state has been converted into a UT.
  • Of the six Lok Sabha seats currently with the state of Jammu and Kashmir, five will remain with the union territory of Jammu and Kashmir, while one will be allotted to Ladakh.
  • The UT of Jammu and Kashmir will have an Assembly, like in Delhi and Puducherry.
  • Instead of 29, India will now have 28 states. Kashmir will no longer have a Governor, rather a Lieutenant Governor like in Delhi or Puducherry.
• Status of J&K Union Territory
  • J&K Assembly will have a five-year term, not six, as was the earlier case.
  • Section 32 of the J&K 2019 Bill proposes that the Assembly can make laws on any subjects in the State and Concurrent lists except on state subjects relating to “public order” and “police”.
    • This is similar to Article 239 A of the Constitution that is applicable to Union Territories of Puducherry and Delhi.
    • However, by insertion of Article 239AA and by virtue of the 69th Constitutional Amendment, the Delhi Assembly cannot legislate on matters in entry 18 of the State List, i.e. land.
    • In the case of J&K, the Assembly can make laws on land.
• The special status provided to J&K under Article 370 will be abolished.
  
  
  • Jammu & Kashmir will no longer have the separate constitution, flag or anthem.
  • The citizens of Jammu and Kashmir will not have dual citizenship.
  • As the new union territory of Jammu and Kashmir will be subject to the Indian Constitution, its citizens will now have the Fundamental Rights enshrined in the Indian constitution.
  • Article 360, which can be used to declare a Financial Emergency, will now also be applicable.
  • All laws passed by Parliament will be applicable in Jammu and Kashmir, including the Right to Information Act and the Right to Education Act.
  • The Indian Penal Code will replace the Ranbir Penal Code of Jammu and Kashmir.
  • Article 35A, which originates from the provisions of Article 370 stands null and void.
    • Since Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights, the discriminatory provisions under Article 35A will now be unconstitutional.

The Need for Changes

• Article 370 was added in the Indian constitution to provide autonomy to J&K.
  • However, it failed to address the well-being of Kashmiris who have now endured two generations of insurgency and violence.
  • It contributed to the gap between Kashmir and the rest of the nation.
• International events
  • The situation emerging in the western neighbourhood and the possible re-ascendance of the Taliban in Afghanistan call for greater attention and care.
  • More so, the emerging geopolitical dynamics in Afghanistan and the resultant United States-Pakistan rapprochement could have potentially led to more heat on the Kashmir situation in the months ahead.

Challenges

• Constitutional challenges
  • Presidential order that sought to abrogate of Jammu and Kashmir’s special status, according to Article 370 (3) the President would require the recommendation of the constituent assembly of Jammu and Kashmir to make such a change.
  • However, the 2019 Presidential order adds a sub-clause to Article 367, replacing the terms:
    • “Constituent Assembly of Jammu and Kashmir” to mean “legislative Assembly of Jammu and Kashmir”.
    • “Government of Jammu and Kashmir” to mean “Governor of Jammu and Kashmir acting on the aid and advice of the council of ministers”.
  • The government sought to dilute the autonomy under Article 370 without bringing a Constitutional Amendment that would require a two-thirds majority in the Parliament.
    • This provision is currently under challenge in the Supreme Court on the ground that it added article 35A in the Indian Constitution only through a Presidential Order.
• Conversion of Jammu and Kashmir into a Union Territory is in violation of Article 3, as the Bill was not referred to the President by the State Assembly.
  • In the reorganisation of the state, the Presidential order also requires the concurrence of the government of the state. However, since Jammu & Kashmir is currently under Governor’s rule, the Governor’s concurrence is deemed to be the government’s concurrence.
• Federalism issue:
  • The Instrument of Accession was like a treaty between two sovereign countries that had decided to work together.
    • The maxim of pacta sunt servanda in international law, which governs contracts or treaties between states, asks that promises must be honoured.
  • In Santosh Kumar v. State of J&K & ors (2017), the SC said that due to historical reasons, Jammu and Kashmir had a special status.
  • In SBI v Zaffar Ullah Nehru (2016), the SC held that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir.

Possible Consequences

• Rise in Militancy: Article 370 was seen by Kashmiris as a marker of their separate identity and autonomy.
  • There is a possibility of widespread protests and violence as a reaction to the dilution of Article 370.
  • Terror elements in Pakistan would find Kashmir to be the most fertile ground for breeding terrorism.
  • The unrest can affect the democratic progress that has been made so far.
• Out-maneuvering Pakistan: Pakistan used 370 to wage a proxy war, internationalise Kashmir, supporting terrorism, all that is gone now.

2.The ‘Union government’ has a unifying effect

The term ‘Centre’ is absent in the Constitution as the Constituent Assembly did not want to centralise power

The Tamil Nadu government’s decision to shun the usage of the term ‘Central government’ in its official communications and replace it with ‘Union government’ is a major step towards regaining the consciousness of our Constitution. Seventy-one years since we adopted the Constitution, it is time we regained the original intent of our founding fathers beautifully etched in the parchment as Article 1: “India, that is Bharat, shall be a Union of States”. If a student of Indian polity attempts to trace the origin of the term ‘Central government’, the Constitution will disappoint him, for the Constituent Assembly did not use the term ‘Centre’ or ‘Central government’ in all of its 395 Articles in 22 Parts and eight Schedules in the original Constitution. What we have are the ‘Union’ and the ‘States’ with the executive powers of the Union wielded by the President acting on the aid and advice of the Council of Ministers headed by the Prime Minister. Then, why did the courts, the media and even the States refer to the Union government as the ‘Centre’?

Even though we have no reference to the ‘Central government’ in the Constitution, the General Clauses Act, 1897 gives a definition for it. The ‘Central government’ for all practical purposes is the President after the commencement of the Constitution. Therefore, the real question is whether such definition for ‘Central government’ is constitutional as the Constitution itself does not approve of centralising power.

Intent of Constituent Assembly

On December 13, 1946, Jawaharlal Nehru introduced the aims and objects of the Assembly by resolving that India shall be a Union of territories willing to join the “Independent Sovereign Republic”. The emphasis was on the consolidation and confluence of various provinces and territories to form a strong united country.

Many members of the Constituent Assembly were of the opinion that the principles of the British Cabinet Mission Plan (1946) be adopted, which contemplated a Central government with very limited powers whereas the provinces had substantial autonomy. The Partition and the violence of 1947 in Kashmir forced the Constituent Assembly to revise its approach and it resolved in favour of a strong Centre. The possibility of the secession of States from the Union weighed on the minds of the drafters of the Constitution and ensured that the Indian Union is “indestructible”. In the Constituent Assembly, B.R Ambedkar, the Chairman of the Drafting Committee, observed that the word ‘Union’ was advisedly used in order to negative the right of secession of States by emphasising, after all, that “India shall be a Union of States”. Ambedkar justified the usage of ‘Union of States’ saying that the Drafting Committee wanted to make it clear that though India was to be a federation, it was not the result of an agreement and that therefore, no State has the right to secede from it. “The federation is a Union because it is indestructible,” Ambedkar said.

The usage of ‘Union of States’ by Ambedkar was not approved by all and faced criticisms from Maulana Hasrat Mohani who argued that Ambedkar was changing the very nature of the Constitution. Mohani made a fiery speech in the Assembly on September 18, 1949 where he vehemently contended that the usage of the words ‘Union of States’ would obscure the word ‘Republic’. Mohani went to the extent of saying that Ambedkar wanted the ‘Union’ to be “something like the Union proposed by Prince Bismarck in Germany, and after him adopted by Kaiser William and after him by Adolf Hitler”. Mohani continued, “He (Ambedkar) wants all the States to come under one rule and that is what we call Notification of the Constitution. I think Dr. Ambedkar is also of that view, and he wants to have that kind of Union. He wants to bring all the units, the provinces and the groups of States, everything under the thumb of the Centre.” However, Ambedkar clarified that “the Union is not a league of States, united in a loose relationship; nor are the States the agencies of the Union, deriving powers from it. Both the Union and the States are created by the Constitution, both derive their respective authority from the Constitution. The one is not subordinate to the other in its own field… the authority of one is coordinate with that of the other”.

The sharing of powers between the Union and the States is not restricted to the executive organ of the government. The judiciary is designed in the Constitution to ensure that the Supreme Court, the tallest court in the country, has no superintendence over the High Courts. Though the Supreme Court has appellate jurisdiction — not only over High Courts but also over other courts and tribunals — they are not declared to be subordinate to it. In fact, the High Courts have wider powers to issue prerogative writs despite having the power of superintendence over the district and subordinate courts. Parliament and Assemblies identify their boundaries and are circumspect to not cross their boundaries when it comes to the subject matter on which laws are made. However, the Union Parliament will prevail if there is a conflict.

Word play

The members of the Constituent Assembly were very cautious of not using the word ‘Centre’ or ‘Central government’ in the Constitution as they intended to keep away the tendency of centralising of powers in one unit. The ‘Union government’ or the ‘Government of India’ has a unifying effect as the message sought to be given is that the government is of all. Even though the federal nature of the Constitution is its basic feature and cannot be altered, what remains to be seen is whether the actors wielding power intend to protect the federal feature of our Constitution. As Nani Palkhivala famously said, “The only satisfactory and lasting solution of the vexed problem is to be found not in the statute-book but in the conscience of men in power”.

3.Jaishankar flags ‘close up deployments’

They are to prevent encroachment of territory, says Beijing in a sharp reaction

Continuing “close up deployments” and questions about whether China would “live up to its written commitments” on not deploying a large number of forces were two issues at the heart of the recent tensions along the Line of Actual Control (LAC), External Affairs Minister S. Jaishankar has said.

The Minister was speaking at the Qatar Economic Forum on Tuesday, where he was asked about the boundary situation. The Chinese Foreign Ministry on Wednesday reacted sharply to a question on his comments, telling reporters that China’s deployments were “aimed at preventing and responding to encroachment and threat on China’s territory by relevant country”.

The comments from both sides underlined the continuing tensions, and stalemate, along the LAC, with military-level talks failing to make headway following an agreement to disengage at Pangong Lake in February. Talks on continuing stand-offs have been slow-moving, with unresolved issues in Depsang, Demchok, Gogra and Hot Springs areas in Ladakh.

Asked about what role the Quad — the informal India, U.S., Australia, Japan grouping — grouping could play in India’s response to the border situation, Mr. Jaishankar said, “I think when it comes to Quad and the India-China border issue, we’re talking apples and oranges. I’m not quite sure I’d really see a tight connection.” While the Quad had “come together on a common agenda” that included maritime security, connectivity and even working on vaccines, the border issue, he said, “has pre-existed upon, in many ways, it’s a challenge, a problem, which is quite independent of the Quad”.

He said there were “two big issues”. “One of course is that the close up deployments still continue, especially in Ladakh. The issue there is whether China will live up to the written commitments which are made about both countries not deploying a large armed force at the border. And the larger issue really, whether we can build this relationship on the basis of mutual sensitivity, mutual respect and mutual interest. So I do see why you’re interested in both the issues, but I would urge you to look at them, somewhat independent of each other,” he said.

In Beijing, China’s Foreign Ministry spokesperson Zhao Lijian told reporters, “China’s military deployment along the western section of the China-India border is a normal defence arrangement.” He said it was “aimed at preventing and responding to encroachment and threat on China’s territory by relevant country”.

“For a long time, the Indian side has been increasing its military deployment along the China-India border and encroaching on China’s territory,” he said, adding this was “the root cause of tension along the China-India border.”

• Background:
  • In the previous two rounds, India sought restoration of the status quo as it existed before the standoff began in May 2020.
    • Indian and Chinese troops scuffled at Pangong Tso in Ladakh on 5/6^th May.
  • After the first round of talks on 6^th June, 2020,clashes occurred in Galwan Valley (Ladakh) that claimed 20 Indian soldiers’ lives and an unknown number of casualties on the Chinese side.
  • While faceoffs and standoffs keep occurring on the LAC due to differences in perception on the alignment, there has been no instance of firing on the LAC since 1975.
    • India and China fought a war in 1962.
• India’s Response:
  • Military:
    • India has moved in additional divisions, tanks and artillery across the LAC to match Chinese deployments.
    • Further, India has approved the purchase of 33 Russian fighter jets and upgrades to 59 war planes at a cost of Rs. 18,148 crore.
  • Economic:
    • Citing the “emergent nature of threats” from mobile applications, including popular ones of Chinese origin such as TikTok, ShareIt, UCBrowser, and Weibo, the government has banned 59 apps.
    • Further, India’s trade deficit with China fell to $48.66 billion in 2019-20 on account of the decline in imports. The trade deficit stood at $53.56 billion in 2018-19 and $63 billion in 2017-18.
      
      
      • However, the tensions on the border, as well as the Covid-19 pandemic, have thrown light on India’s economic dependencies on China.
      • India remains reliant on Chinese products in several critical and strategically sensitive sectors, from semiconductors and active pharmaceutical ingredients to the telecom sector, where Chinese vendors are involved not only in India’s 4G network but in on-going 5G trials as well.
    • Foreign Direct Investment (FDI) from China in India has dipped to $163.78 million in 2019-20 from $229 million in 2018-19.
      • In April 2020, the Indian government tightened FDI norms coming from the countries which share land borders with India. Government approval has been made mandatory.
• China’s Reaction:
  • It has described the app ban action as “a deliberate interference in practical cooperation” between the two countries. China’s State media has warned of economic repercussions, such as affecting outbound Chinese investment into India.

Possible Reasons Behind Increased China’s Deployment at the LAC

• India’s decision to strengthen its border infrastructure (Darbuk-Shyok-Daulat Beg Oldie road).
• India’s United States tilt (e.g. Quad) amid US-China tensions.
• China views India’s assertions regarding Gilgit-Baltistan, as an implicit attack on the China-Pakistan Economic Corridor (CPEC),China’s flagship programme.
• China’s growing assertiveness over the South China Sea.
• Political and economic tensions within China due to Covid-19 pandemic.
• India being a growing power in Asian region.

Line of Actual Control

• Demarcation Line: The Line of Actual Control (LAC) is the demarcation that separates Indian-controlled territory from Chinese-controlled territory.
• LAC is different from the Line of Control (LoC) with Pakistan:
  • The LoC emerged from the 1948 ceasefire line negotiated by the United Nations (UN) after the Kashmir War.
  • It was designated as the LoC in 1972, following the Shimla Agreement between the two countries. It is delineated on a map signed by the Director General of Military Operations (DGMO) of both armies and has the international sanctity of a legal agreement.
  • The LAC, in contrast, is only a concept – it is not agreed upon by the two countries, neither delineated on a map or demarcated on the ground.
• Length of the LAC: India considers the LAC to be 3,488 km long, while the Chinese consider it to be only around 2,000 km.

• Sectors Across the LAC:
  • It is divided into three sectors: the eastern sector which spans Arunachal Pradesh and Sikkim (1346 km), the middle sector in Uttarakhand and Himachal Pradesh (545 km), and the western sector in Ladakh (1597 km).
    • The alignment of the LAC in the eastern sector is along the 1914 McMahon Line.
    • The McMohan line marked out previously unclaimed/undefined borders between Britain and Tibet.
  • The middle sector is the least disputed sector, while the western sector witnesses the highest transgressions between the two sides.
• Disagreements:
  • India’s claim line is different from that of the LAC. It is the line seen in the official boundary marked on the maps as released by the Survey of India, including Aksai Chin (occupied by China).
  • In China’s case, LAC corresponds mostly to its claim line, but in the eastern sector, it claims the entire Arunachal Pradesh as South Tibet.
  • The claim lines come into question when a discussion on the final international boundaries takes place, and not when the conversation is about a working border i.e. LAC.
• Border Negotiations:
  • Indian Prime Minister’s visit to China in 2003 led to the agreement on appointing Special Representatives (SRs) and, in April 2005, there was agreement on the political parameters and principles that would underpin negotiations.
    • The aim was a comprehensive solution encompassing all three sectors. The agreed boundary would follow well-defined geographical features and respect the interests of the settled populations.
  • During Indian Prime Minister’s visit to China in May 2015, the proposal to clarify the LAC was rejected by the Chinese.
  • However, in the Wuhan (2018) and Mahabalipuram (2019) summits, both China and India had reaffirmed that they will make efforts to “ensure peace and tranquility in the border areas”.

Relevance of Pangong Tso Lake

• Location: It is a long narrow, deep, endorheic (landlocked) lake situated at a height of more than 13,000 ft in the Ladakh Himalayas.
• Significance: It lies in the path of the Chushul approach, one of the main approaches that China can use for an offensive into Indian-held territory.
• Governance: It is overlooked by the Finger Area – a set of eight cliffs extending out of the Sirijap range (on the northern bank of Lake).
  • India claims that the LAC is coterminous with Finger 8 but it physically controls area only upto Finger 4.
  • Chinese border posts are at Finger 8, while it believes that the LAC passes through Finger 2.