A little revisionism never hurt anyone.

Just as the Azadi March of Maulana Fazl-ur-Rahman was beginning to distract Pakistanis from the events of August 5, the Government of India quietly released maps of the newly constituted union territories of Ladakh, and Jammu and Kashmir. In these maps the illegally occupied northern areas of Gilgit and Baltistan were shown in Ladakh. While the reorganisation of maps has changed nothing on ground, it essentially fits a pattern emerging from the Indian side.

On August 6, Home Minister Amit Shah asserted India’s right to make laws for the entire territory of Jammu and Kashmir, including Pak-occupied Kashmir (PoK) and Aksai Chin. Defence Minister Rajnath Singh pointed out that any future parleys with Pakistan would have to be about PoK. External Affairs Minister Subrahmanyam Jaishankar insisted that PoK “is part of India and we expect one day that we will have the physical jurisdiction over it”. In essence, it was being insinuated that India was no longer content with the territorial status quo in South Asia.

It is generally believed that the peace and stability in the international system rest upon the pivot of status quo, especially the territorial status quo. Seeking territorial re-organisation amounts to revisionism, which is anathema to international peace. This is why revisionist powers, we are told, have few friends! So does India, in seeking to regain control over PoK, become a revisionist power?

For one, apprehension of revisionism betrays the Anglo-American ethnocentric bias pervasive in the field of International Relations. E. H. Carr, a prominent historian and English diplomat says that status quo undermines the moral dimension and only those states support status quo that benefit from it. As such, the moral desirability of status quo is ambiguous at best and all countries are revisionist in their own ways. Revisionism is essentially a sign of dissatisfaction with the features of the international system. ­

Secondly, the characterization of the Indian claims to PoK and Aksai Chin as “revisionism” is tenuous at best. Both territories have been on Indian official maps since 1948. The restriction on the parliamentary power to legislate for Jammu and Kashmir came from article 370 and it was self-imposed. It was by no means a surrender of Indian sovereignty over illegally occupied territories. Moreover, if India was open to converting the line of control (LoC) into the international border in the past (Swaran Singh-Bhutto talks in 1963, Simla Agreement in 1972), it is not to be construed as acquiescence to the territorial status quo. Such offers were made in discretionary exercise of India’s sovereign powers to cede territory for regional peace and stability. And if India is no longer willing to make that concession then it must be put in a proper context instead of surrendering to the Occam’s razor.

While Indians never believed in the two-nation theory, they have come to accept and even respect Pakistan’s existence. So when Kashmir was called the “unfinished business of partition” it was contentious but not incomprehensible. In the 70 years since, India has survived a Pak-sponsored separatist movement in Punjab, the exodus of Kashmiri pandits, and countless terrorist attacks, including those that targeted citizens of Israel and America. The Daesh flags in Kashmir protests were probably the final knell in the coffin for the Kashmir-is-an-unfinished-business-of-partition theory. Ghazwa-e-Hind (conquest of India), once considered the agenda of a few extremists, has made its way into the mainstream discourse through unsubtle monikers like “Endia”, used liberally even by Pakistani ministers.

While nobody wants to take the Pakistani rhetoric seriously, the stark reality of extreme radicalization can no longer be discounted as just rhetoric. The solution-to-Afghanistan-lies-in-Kashmir innuendos can no longer be overlooked. With the US renegotiation of NAFTA and Russian occupation of Crimea, revisionism seems to be the preferred strategy of almost all superpowers today. 70 years of unilateral and disproportionate revisions by Pakistan have rendered the word meaningless anyway.  So in a world that seems to be mainstreaming revisionism, India can survive the ignominy of being labelled a revisionist. After all, a little revisionism never hurt anyone.

           

The Writing on the Wall - Article 370

The virtual emasculation of article 370 has stirred up a constitutional storm. For seventy years, the issue has been trivialized as little more than a matter of insurmountable technicality - the Constituent Assembly of Jammu and Kashmir was long dissolved. The Presidential Order C.O.272, 2019 has now allowed us to construe the 'concurrence of the state government', necessary to invoke the presidential powers in clause 1(d) of article 370, as 'the concurrence of the Governor'. The constitutionality of this change is not clear in a literal sense. To make matters worse, our history is replete with pervasive misuse of the Governor’s powers under article 356. In any other state under the President's rule and a dissolved Legislative Assembly, a far-reaching reform made in consultation with the governor could have left a lingering sense of unease in the collective consciousness. But Kashmir was NOT any other state and the concept of ‘constitutionality’ has shown admirable resilience and exemplary situational awareness in the Indian context.

 Article 370 has begotten grave problems. Political expediency has thwarted delimitation leading to the neglect of the political aspirations of the people of Jammu and Ladakh. The inequity perpetuated by article 35A is only compounded by the absence of reciprocity. Both articles have fostered an atmosphere conducive to insurgency and cross-border terrorism with serious repercussions for national security and foreign relations. In the international arena, a sense of ambiguity prevails over the status of Jammu and Kashmir. The repeated offers of and requests for mediation (the most recent one from President Trump) on Kashmir originate in articles 370 and 35A, which have prevented true integration with India. Not to mention, the looming specter of the American withdrawal or drawdown from Afghanistan does not bode well for Kashmir. With this background, the overwhelming public response, as well as the support garnered by the government, in the parliament across party lines, is a stark indication that the writing has been on the wall for quite some time. A complete and meaningful integration of Jammu and Kashmir into India was a desire deeply felt by Indians.

Would it have looked better to do the changes through article 368? The point is moot, because the proposal was passed with a 2/3rd majority in Rajyasabha, yesterday. The apparent bypassing of the Legislative Assembly is now accepted as a political fait accompli by an overwhelming majority of Indians and their representatives. If bypassing the Legislative Assembly through gubernatorial assent is a fraud on the Constitution as per DC Wadhwa judgement, then the vested interests, domestic and international, holding the entire country hostage to an anachronistic provision was an even bigger fraud on it. ARTICLE 370 IS NOT AMENABLE TO AN ELEGANT SOLUTION TODAY, BECAUSE IT WAS NOT MEANT TO LAST 70 YEARS! And the people of this country don't need a constitutional expert to tell them that. The circumstances that led to its inclusion have undergone material and irreversible changes. The Constituent Assembly stands dissolved. A large chunk of the state is now under illegal occupation by Pakistan and China. The present cannot be held hostage to the past that could not have foreseen the appalling fallout of article 370 and its misuse. The ‘living tree doctrine’ of constitutional interpretation, which says that a constitution is organic and must be read in a broad and progressive manner so as to adapt to the changing times, is crucial in this respect. The Law must change with contemporary understanding of what constitutes morality, welfare and the legal duty of justice, equity and good conscience. When the Presidential Order C.O.272 of 2019 comes under judicial review, the Supreme Court will find it difficult to ignore the writing on the wall, as it were.