Book Review: The Great Repression by Chitranshul Sinha | Guest Post by Sarthak Bhardwaj

 (In this post, Sarthak Bhardwaj reviews The Great Repression: The Story of Sedition in India by Chitranshul Sinha. Sarthak is a 3^rd year law student at Vivekananda Institute of Professional Studies, Delhi). 

The Great Repression, by Chintranshul Sinha, chronicles the 150 year-old story of sedition in India. The law of sedition is a hotly contested issue and much has been said about it over the years - that it is colonial, oppressive, draconian, against free speech, and so on. One might naturally ask, how did we get here, and what is the road ahead? In answering these questions, Chintranshul Sinha takes the reader on a socio-legal history of India, starting right from the establishment of the first East India Company factory in Surat in 1613.

The book covers three spheres. It discusses sedition’s origin story, its early life during the British Raj, and then in independent India. The first part tells how the emergence of sedition (and, in fact, the entire penal code) is proximately linked to the revolt of 1857. After managing to quell the uprising, administrative control and power was transferred from the East India Company to the British Crown. 

This hastened the process of codification of Indian criminal laws. The Indian Penal Code was formulated in 1860, but Section 124A (the provision governing sedition) was inserted only in 1870. The most immediate need for this insertion, Chintranshul Sinha suggests, arose because of the Wahhabi Movement, which aimed to overthrow the British government.

The Indian Wahhabi movement, started by one Syed Ahmed, was initially against the Sikh empire in northwest India. However, when the British defeated the Sikhs, the movement took shape of a radical anti-British movement in India.  In 1863, the Britishers unearthed a conspiracy to supply money and ammunition to the Wahhabis to fight the British in the North Western Frontier Province. This led to the trials of some notable Wahhabi leaders. Thereafter, a need was felt by the British government to amend the Indian Penal Code (IPC) and provide for seditious offences.

The second section of the book enumerates how sedition evolved in its early life. Here, Chintranshul Sinha familiarises the reader with the legendary trials of Bal Gangadhar Tilak, Gandhi, Nehru, Azad, and the rest. It is observed how the Raj used sedition as a tool to stifle dissent and liberty of their subjects. Mahatma Gandhi’s trial exemplifies it best. His arrest was the result of four articles published in his magazine - Young India. The articles were considered to be incendiary by the Raj, for they supported the Khilafat Movement and exhorted Indian sepoys to quit serving in the British army.

Interestingly, Gandhi, without engaging a lawyer, pled guilty to the charge and refused to call any witnesses to testify in his defence. Gandhi, during his trial, submitted to Judge Broomfield, that he must first consider whether the law of sedition was evil and punish him with the severest penalty if he found that it was not. He called upon the judge to resign and dissociate himself from evil if he found otherwise. The offence of sedition - at that time - criminalized the mere promotion of disaffection against the government. It is known that Judge Broomfield held Gandhi in high regard, and therefore was reluctant to punish him.

However, it was accepted that Gandhi was no ordinary leader, and that his political teachings possessed a capability to spark violence amongst the masses. Thus, Gandhi was sentenced to six years of simple imprisonment. At the same time, Judge Broomfield expressed hope that the British government would reduce the sentence in the future. And, this is how Gandhi’s legendary trial came to an end. Lasting only for a glorious hundred minutes!

The third segment studies the position of sedition in modern Indian history. One would reasonably believe that an undeniably repressive law like sedition - responsible for the incarceration of the most prominent figures of the Indian independence movement - would  promptly be rejected by the framers of our Constitution. The reality, however, tells a different story. 

Leaders like Sardar Patel and C Rajagopalachari advocated for the retention of seditious speech. This inclusion was vehemently opposed by Somnath Lahiri, and finally the word ‘seditious’ from the proviso of Clause 8 of the draft interim report on fundamental rights was omitted. Despite passionate debates on freedom of speech and expression, the notorious Section 124A continued to find a place in our statute books.

There were some early attempts to decriminalise sedition by the courts, notably by the Punjab and Haryana High Court in the Tara Singh Gopi Chand case. But, in 1951, the Nehru government revalidated sedition by making it a reasonable restriction under Article 19 (2) – through the First Amendment to the Indian Constitution.

The author also succinctly discusses landmark cases like Kedar Nath Singh, Balwant Singh, and Bilal Ahmed Kaloo to reaffirm the prevailing and settled position of sedition, i.e., to attract punishment under Section 124 A of the IPC, incitement to violence or public disorder (and not merely promoting disaffection towards the government) is required. However, sedition still marks a great imbalance of power between the individual and the State, and is a tool of oppression in the hands of the government.

As Chintranshul explains, arrests under this provision are seldom in accordance with the prevailing position of law. For instance, sedition charges are slapped for celebrating a neighbouring country’s victory in a cricket match, for refusing to stand during the national anthem or for publishing satirical cartoons. It is interesting, therefore, to note that the book opens with a prescient word of caution from Justice D.Y. Chandrachud. The book, quoting Justice Chandrachud says, “the Constitution fails when a cartoonist is jailed for sedition.”

The book, thus, makes a strong case for the repeal of Section 124A - as has already been done in UK - the country of its origin. The Great Repression acts as an excellent primer in understanding the history of sedition in India. Despite its intensive legal content, the book is readable and can quite easily be understood by those outside the legal fraternity. The Great Repression is a riveting tale of where this (now) antiquated law came from, its evolution, and place (if any) in the world’s largest democracy.

The year after 5th August 2019 - Perspectives from Ladakh

While we discuss the constitutional changes made to Jammu & Kashmir on 5^th August 2019, we often tend to forget about Ladakh – which was carved out as a separate Union Territory. In this post, Nasima Abida and Stanzin Chosdon, two students who are natives of Ladakh, share their thoughts on what they feel about the abrogation of Article 370 and 35A, and the conversion of Ladakh into a separate Union Territory (UT).

Nasima Abida, who is currently pursuing law at GNLU Gandhinagar, shares her account of what she feels about the constitutional changes made last year:

“Initially, there were mixed reactions from the people with regard to the grant of a UT status - since this had been a long-standing demand of certain sections. But, within a short period of time, disappointment could be sensed among the people as the UT of Ladakh was not granted a Legislature. One year after Ladakh was envisaged as a UT, all the enthusiasm and anger has now dissolved into anguish of a bleak Ladakhi future. The unilateral declaration of Ladakh as a UT without Legislature, sans any discussion and deliberation with the locals has made them feel jettisoned.

The control of the Ladakh Autonomous Hill Development Council - which is responsible for governance at the grassroots level - has been subverted and sidelined by the UT Administration. The UT Administration now reports only to the Lieutenant Governor and the Home Ministry. The districts of Leh and Kargil have a separate Autonomous Hill Development Council. Earlier, these two councils enjoyed independence in financial matters to an extent, and now that power has been transferred to the Centre and the UT administration directly.

Apprehensions prevail among the Ladakhi youth for job security and employment. We think that the tall promises made while creating the UT have not been accomplished. Rather, it has dismayed the people, especially the Ladakhi youth, as there are limited job opportunities. For precisely this reason, there are demands being made for the creation of a separate Public Service Commission for Ladakh.

We, as Ladakhis, fear the outsourcing of employees from outside Ladakh - without incorporating sufficient safeguards for local employees. In May this year, around 100 doctors were recruited from outside Ladakh - even though these posts could be absorbed by the local doctors. Many outsiders did not join their posts, owing to which the Government had to re-issue a notification.

Furthermore, unplanned infrastructure development is severely affecting the fragile environment of Ladakh - which we cannot afford in the long run. Increase in population and urbanization are bound to happen - but this may be at the cost of Ladakh’s ecosystem. Some senior BJP leaders along with the Ladakh BJP President have resigned, as there is no room for members of the Hill Council and other public representatives to function.

Ladakhis are facing uncertainty and vulnerability in terms of constitutional safeguards. We have apprehensions with regard to job security, political representation, domicile protections, and safeguards with respect to land”.

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Stanzin Chosdon, a 2^nd year student at Delhi University, tends to agree, and shares her account below:

“It has been exactly a year since the abrogation of Article 370 and 35A - which stripped off the erstwhile State of J&K of all the special powers bestowed during J & K’s accession to India. A majority of people in Ladakh wholeheartedly welcomed the creation of a separate Union Territory. This is because we have always been less of a priority when it comes to allotment of aid, and have often been sidelined.

Personally, the news shook me to my core. I couldn’t stop myself but ponder over the disastrous consequences in the near future. After the changes made on 5^th August, land would be accessible to residents all over India, who can now purchase the land from locals.  A fragile ecosystem like Ladakh can in no way sustain and cater to a large population, if there is an influx of people from outside Ladakh.

Along with this, water shortage has always been an issue in this region. It poses a great threat to the indigenous people, and to our culture and heritage. Unlike the Union Territory of J & K, Ladakh does not have a separate Legislature. There is hence no way through which we can have our own elected representatives, who can voice our concerns.  Nobody but a person who belongs to this region can represent the people righteously and justifiably. As we don’t have a voice before the Legislature now, nobody can empathize with our needs, and give voice and credence to our opinions.

We, the people of Ladakh were promised job opportunities and elevation of Ladakh to ‘new heights of economic development’. But sadly, they couldn’t deliver on their promises. Until now, I have not witnessed any constructive change as such, post 5^th August 2019. Due to the onset of the Covid-19 pandemic in March, this may be too short a timeframe.  But, let us hope our voice is heard and our concerns are taken on board”.

As Nasima and Stanzin’s account shows us, the people of Ladakh have several unaddressed concerns, which range from safeguarding jobs for locals, to maintaining the delicate ecological balance of the region. The absence of a Legislature, and the crippling of the autonomy of the Hill Development Councils has made it extremely difficult for the residents to voice their concerns.

After a new domicile reservation policy was notified for J & K, demands were also made for a similar policy in Ladakh – which would safeguard jobs for locals. Despite multiple demands, no such policy has been notified till date. This serves as an epitome of how Ladakh has now been placed solely at the Home Ministry’s mercy. In this time of anxiety and apprehension, let us hope that along with the Jammu and Kashmir regions, the voice of Ladakh is also heard – loud and clear.

The road ahead for J & K and Ladakh - A Conversation with Zaid Deva

 In our previous two posts, we discussed the Constitutional changes made in J & K on 5^th August last year. In this post, Zaid Deva shares his thoughts with me on the road ahead for Jammu, Kashmir and Ladakh. Zaid is a 2020 graduate of GNLU Gandhinagar, and a resident of Srinagar. Our discussion has been transcribed below in a conversational format.

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Varun Kannan: What was your first reaction when you heard about the changes that were being proposed in Parliament last year? Personally speaking, it took me a lot of time to digest the magnitude of the Constitutional changes that were proposed, and the manner in which they were brought about.

Zaid Deva: 5th August 2019 was the first day of my final year at GNLU. I had arrived in Gujarat on the 4^th of August, in the midst of mounting concerns for the future of our State in light of the troop buildup and restrictions. Little could any of us flying from Srinagar airport have known that the Kashmir we were leaving would be lost and laid siege to in another few hours.

It would be too mild an expression to say that I was shocked upon hearing what had happened. As Shah Faesal later pointed out in an interview, ‘[after 1953 and 1987] it was our generation which had got a taste of betrayal from the Indian State’. For each generation now, there is a story of betrayal. People still mourn the loss of what was taken away, and fear what the future holds.

Initially, like everyone else, I thought that the Modi government had done something new in terms of the nature and magnitude of the changes that were made or the methods that it employed. But as I read more, I found that there was actually nothing novel about the move, and that Modi had only followed the footsteps of his predecessors – Article 370 was altered through Article 367 before as well, when the position of the ‘Sadar-e-Riyasat’ was changed to the office of the Governor, in 1965.

The Indian Constitution had also been applied in its entirety in 1964 through a Presidential Amendment Order (albeit retaining the modifications that were present in the Presidential Order of 1954).

The propaganda that was unleashed before 5^th August was along the lines of - ‘everything was normal’ and there was ‘no need to panic’; and on 5^th August, the narrative suddenly shifted to the ‘new era of peace, prosperity and development’ that the abrogation of Article 370 would usher in.

This was reminiscent of the events leading up to and after Sheikh Abdullah’s dismissal as Prime Minister of J & K in 1953 - when Nehru assured the general secretary of the National Conference on 8^th August 1953 that ‘there was nothing to worry’. Next day, on 9^th August 1953, in a New Delhi engineered coup, Sheikh was dismissed from office and subsequently arrested. With full backing of New Delhi, Bakshi Ghulam Mohammad announced large scale developmental programmes and economic concessions sounding the death knell for the Sheikh’s ‘self-sufficiency’ policy.

Its evident that the approach of the Indian government towards J & K has not changed. If 1953 could not resolve the Kashmir dispute, it is unlikely that 2019 will.

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Varun Kannan: Before any of the changes were made, the voice of the residents of J & K was not taken on board in any manner. Then, during the course of the year, it became very difficult for the residents to express their views because of the strict curfew, and the ban on communication networks. As some of these restrictions have been eased partially, what roadmap should be followed for the year ahead?

Zaid Deva: When we discuss the possible roadmap for Jammu, Kashmir and Ladakh post abrogation of Article 370, history has many lessons for us.  

The accession of the Princely State of Jammu & Kashmir to India in October 1947 must be seen in the correct context. Along with J & K, Mayurbhanj, Hyderabad and Junagadh had also not joined either India or Pakistan after partition. Hyderabad and Junagadh had a Hindu majority population and a Muslim ruler. On the other hand, J&K had a Muslim majority population (around 80%) with a Hindu ruler.

If we apply Muhammad Ali Jinnah’s two-nation theory, and as a logical conclusion after Hyderabad and Junagadh joined the Indian dominion - J&K should have acceded to Pakistan. But, the J & K National Conference headed by Sheikh Abdullah had rejected the two-nation theory and later on supported J&K’s accession to India. So, even though the Instrument of Accession was signed by Maharaja Hari Singh, credibility was lent by Sheikh Abdullah’s endorsement. The accession was, of course, envisaged to be ratified by way of a referendum.     

Assuming there were no infirmities with the Instrument of Accession as executed by the ruler (the J&K Plebiscite Front’s White Paper described the ruler at the time of accession as a ‘lame duck’)[1] – the Instrument of Accession only vested the Indian Government with competence to legislate on three subjects i.e. defence, communications, and foreign affairs. For all other matters, J&K was envisaged to have complete autonomy.

The final draft of Article 370, as passed by the Constituent Assembly, was in itself a dilution of this condition - as it envisaged extending the federal jurisdiction to the non-acceded subject matters as well, based on ‘concurrence’ of the state government (we have seen how this was exploited later on). This was not present in the initial drafts of Article 370 prepared by the government of J & K, which sought to restrict the Constitutional relationship to the 3 subjects mentioned in the Instrument of Accession.  

The J&K Constituent Assembly was convened in 1951 to draft a Constitution for the State and determine the federal jurisdiction, among other things. A year before, in 1950, the first presidential order was passed under Article 370 - which applied provisions of the Indian Constitution corresponding to the subjects specified in the Instrument of Accession. It is worth pointing out that citizenship provisions were not applied i.e. the people of J&K were not yet citizens of India. The customs barrier between India and J&K still remained. The 195o Order was largely in compliance with the Instrument of Accession.

The autonomous status’ erosion by abusing Article 370 (and not the provision’s erosion itself) started as soon as Sheikh Abdullah was dismissed in 1953 - beginning with the enactment of the 1954 Order which applied almost all of the entries from the Union List. The J & K Constituent Assembly adopted the Constitution in 1956 and was formally dissolved in 1957. Many members boycotted the assembly arguing that it had lost its democratic legitimacy and representative character after Sheikh’s dismissal.

Even after the dissolution of the J & K Constituent Assembly, many Presidential Amendment Orders were passed which applied almost all consequential provisions of the Indian Constitution to the State. By 1964, the entire Indian Constitution as it existed then had been applied. The Instrument of Accession, Article 370 and the Delhi Agreement of 1952 were all disregarded in this process.  By 5th August 2019, Article 370 was nothing but an empty shell, or a husk.

The reason for mentioning the historical background is to show that the Constitutional relationship of J &K with India has been shaky, if not on dubious foundations - even when we assume that the Instrument of Accession was perfectly valid. The 2019 Orders only add insult to injury – an illegality mounted on another illegality.

The future indeed is bleak. So, when we talk about what we should demand in the near future – simply stating that the pre-5th August position should be restored is not enough. The Congress has aligned with the BJP in demanding restoration of statehood – which really is no demand as this is already on the agenda of the BJP-led government.

The local political parties must form a united front against this new phase of Indian aggression and demand restoration of the autonomous status as it existed in 1950, if not the 1947 position. In the long term, steps should be taken to demilitarize Kashmir and attempts made to fulfill the long-broken promises. But, this is only possible when there is a change in policy. 1953, 1987, and 2019 are outcomes of the same mindset. As long as India views J & K as a security concern which must be dealt with militarily and by employing underhanded tactics, there will be no resolution. 

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Varun Kannan: Coming to the issue of identity – is that not the biggest fallout of the Centre’s decisions? As a resident of J & K, what would you say regarding this feeling of alienation and betrayal?

Zaid Deva: With great hopes and expectations, J & K had acceded to India. But, as Sheikh Abdullah laments in his autobiography, Aatish-e-Chinar – “instead of treating us as comrades, they [the Indian leaders] tried to dominate us and interfered in our internal affairs”. He goes on to say that ‘Nehru was influenced by Machiavelli’s doctrines and practiced them with us in Kashmir’.[2]

Somehow, everyone who’s ever supported India has been disillusioned later. From Sheikh Abdullah to even Bakshi Ghulam Mohammad. After his premiership, Bakshi is reported to have signed with his blood a certain vision document prepared by Maqbool Bhat. Like I said earlier, it is our generation’s turn for betrayal and disillusionment.

On identity, I am reminded of what one of my professors told me later in the day on 5^th August last year, that ‘a people’s identity cannot be circumscribed by an article of a Constitution’. But to answer your question, yes, there is a sense of loss of identity after abrogation of Article 370. This has been exacerbated by issuance of domicile certificates to erstwhile non-permanent residents, under the new domicile policy that was notified in April by the Home Ministry.

This feeling of a loss of identity is not restricted to J & K, but also extends to Ladakh. Recently, the President of the Ladakh Unit of the BJP had resigned, and this was not even covered in the mainstream media. The Kargil units of Congress and the National Conference have also demanded reintegration with J & K. The status of permanent resident-ship under the State Constitution and Article 35A of the erstwhile Indian Constitution as applicable to J & K substantively guaranteed better protections. The new domicile rules of course do not offer similar protections.

With each passing day, it is becoming clear that the 5^th August misadventures were aimed at appeasing BJP’s Hindu votebank and altering the demography of the erstwhile State. 

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Varun Kannan: Coming to Article 35A, do you think the Government had a strong justification to abrogate it?

Zaid Deva: There is a good amount of misconception surrounding the scope and ambit of Article 35A. Article 35A was not a power-conferring clause. The power to define permanent residents was derivable from the J & K Constitution. Article 35A merely embedded in the Constitution what was agreed to between Nehru and Sheikh Abdullah in the Delhi Agreement. The provision was under challenge before the Supreme Court as well.

Suppose it had been struck down by the Supreme Court, or if the Indian government had repealed it by way of an amendment order, the rights of permanent residents would not have disappeared automatically. The only question then, that the Supreme Court would have been called upon to answer is this: whether the rights of permanent residents emanating from the state Constitution gain precedence over the fundamental rights of Indian citizens who are non-permanent residents?

One of the justifications given for abrogating Article 35A was that it deprived West Pakistani refugees from getting the status of a ‘permanent resident’ of J & K. But, this was not due to Article 35A – as Article 35A itself does not define who a ‘permanent resident’ is, as I pointed out above. Hence, if denial of permanent residency for West Pakistani refugees was a problem, that could have been rectified without abrogating Article 35A.

Another justification was that the special laws enacted for permanent residents prevented women from marrying outside the State, as that would lead to the woman losing her permanent resident rights. But, even this was not true, as the J & K High Court had clarified in a 2003 decision that a woman marrying a non-permanent resident does not lose her permanent residency status.

I believe the debate on Article 35A was engineered in a way which would lay the groundwork for 5^th August. The petitions challenging the provision in the Supreme Court is a case in point (one of the petitions was filed by a BJP leader, another by an NGO, which one writer described as ‘RSS inspired’). That’s why doing away with the State Constitution became necessary - to obliterate notions of a distinct identity, and to allow the government to change the demography of J&K unfettered.  

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Varun Kannan: Another change made was the repealing of J & K’s separate Constitution. As per Section 147 of the erstwhile J & K Constitution, even the Legislative Assembly of J & K did not have the power to repeal this Constitution in its entirety. Parliament also did not have the power to amend this Constitution. Doesn’t that automatically make the ‘repeal’ of the separate Constitution unconstitutional?

Zaid Deva: Its unclear to me what the status of the J&K Constitution is, post the abrogation of Article 370. A Constitution which enjoys the sanction of a Constituent Assembly cannot be nullified by a Presidential Order or a statutory resolution. We must remember that this Constitution was independent of Article 370. Its presence or absence did not hinge on Article 370 - as it was framed and adopted by the Constituent Assembly of J & K. Since the Constituent Assembly did not in any way derive its authority from Article 370, linking the State Constitution to Article 370 is fallacious.

I think it is more appropriate to say that the State Constitution has been rendered irrelevant, or has been superseded by the application of the Indian Constitution. The new Article 370 states that all provisions of the Indian Constitution shall apply to J&K - ‘notwithstanding anything to the contrary in the Constitution of J & K’.

‘Abrogating’ the separate Constitution has more to do with the Government’s stated objective of “One Nation, One Constitution, One Flag”.

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Varun Kannan: Was this narrative of “One Nation, One Constitution, One Flag” meant to fit in with the Government’s claim of having ‘completely integrated’ J & K with the rest of India?

You also mentioned in the beginning that even before 5^th August 2019, Article 370 was an empty shell or a husk, and had almost been eroded in its entirety. So, in conclusion, what exactly has the Government achieved by amending Article 370?

Zaid Deva: This narrative of “One Nation, One Constitution, One Flag” represents a very regimented vision of nationhood.

In fact the promise of ‘One Constitution’ has still not been achieved. Under Section 13 of the J & K Reorganization Act, Article 239A of the Indian Constitution has been applied to J & K. Under this Article, the Parliament can make a law for establishment of the Union Territory; and even if the provisions of such a law have the effect of amending the Constitution, it shall not be treated as an amendment in terms of Article 368. If before August 2019, the Indian Constitution as applicable to J & K could be amended by an executive order, now it can be amended by an ordinary exercise of law-making.  

At least as far as Article 370 is concerned, the Government’s claims of repealing it for ‘complete integration’ of J & K were nothing more than symbolic or ideological. I think the biggest loser after the abrogation of Article 370 has been the Indian State. It is unlikely that those, however little they may be in terms of numbers, who supported J&K’s accession to India (or had largely settled with the status quo), will accept the new political realities. The ruthlessness with which Article 370 was abrogated only went on to prove what the detractors of J & K’s accession to India had been arguing for long.

The dismissal of Sheikh Abdullah’s Government in 1953 defined the course of events for the next 20 years or so. After 1953, it was a new generation in 1987 which was betrayed leading to the insurgency lasting up till the turn of the century. Those who had come to believe in the institutions of Indian democracy - their beliefs were shattered with the brazen rigging in elections. I am afraid we might be witnessing the beginning of a new phase of violence after 5^th August 2019.

I would like to thank Zaid for expressing his views so candidly. Zaid has also written a paper on this issue - where he has inter alia argued that the autonomous status of J&K inheres in the State, as the J&K Constituent Assembly designed the State’s Constitutional relationship with the Union.

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[1] A G Noorani, Article 370: A Constitutional History of Jammu & Kashmir (Oxford University Press 2011).

[2] Sheikh M Abdullah, The Blazing Chinar (Penguin India 1993) (translated by Khushwant Singh). 

The year after 5th August 2019 : Voices from J & K

It is now one year since the Modi Government altered the constitutional structure of Jammu & Kashmir (J&K). This was done by de-operationalizing Article 370, abrogating Article 35A, repealing the separate Constitution of Jammu & Kashmir, and converting the State into 2 Union Territories. While the legislative changes were passed in the Rajya Sabha on 5^th August, orders had been issued to the local Administration much earlier. 

On 4^th August itself, all communication networks - be it landlines, broadband, or mobile internet services, were shut down. While the proposed changes were being discussed in the Rajya Sabha, political leaders such as Omar Abdullah and Mehbooba Mufti were placed under house arrest. The entire region was also placed under a strict curfew and lockdown. While all other parts of India faced a lockdown only after Covid-19 hit us in mid-March, the people of Jammu and Kashmir have been embracing this situation since 5^th August.

Along with a prolonged lockdown and curfew, the blanket ban on communication networks also continued for many months after 5^th August. While landlines and basic mobile services (such as calling and SMS) were eventually restored in most parts of Jammu & Kashmir, internet services have not been fully restored even today. From January onwards, mobile internet has been available only on 2G speed, and even the Supreme Court has shied away from restoring access to 3G and 4G mobile networks.

Over the course of the last one year, the residents of Jammu & Kashmir have had to face multiple difficulties - due to the prolonged lockdown and the restrictions placed on communication networks. 

In this post, I would like to share with you the first-hand experience of two such residents – Jatin and Muazzam Nasir.

Jatin stays in Kathua District, Jammu. He has just finished his 12th Grade. He is a law aspirant, and had planned to give the CLAT entrance exam this year. However, as there was no access to 4G internet, it became impossible for him to enroll and attend coaching classes, and access study materials online. Jatin says that attending online classes and accessing study material is impossible at 2G internet speed. The absence of high-speed internet has effectively derailed his plans by a year.

Jatin also states that there cannot be any justification whatsoever for restricting internet access in the Jammu region. This is because unlike Kashmir, there are no security and militancy-related issues in Jammu. He tells me that the national media always makes the mistake of looking at the regions of Jammu and Kashmir through the same lens. In his view, this should be avoided, as both these regions have their own identity, and may have a different set of aspirations.

He also states that the people of Jammu are being denied access to 4G internet even though the mobile network operators (Vodafone, Airtel, Jio etc.) continue to charge them at 4G rates! He concludes by telling me – “When the rest of India is going for coaching classes to prepare for a competitive examination, how can I give a competitive exam without attending coaching classes? Why should I not get to attend coaching classes like everyone else?” 

In a nutshell, this is the denial of opportunity that students in Jammu & Kashmir face, as the J & K Administration continues to deprive them of access to 4G internet services. In the midst of a pandemic - when all forms of classes have moved online, what tangible option have the students of Jammu & Kashmir been left with?

Let me now share Muazzam Nasir’s experience with you. Muazzam, a resident of Srinagar, is an undergraduate law student at the Hidayatullah National Law University (HNLU), Raipur. 

He has a small message for us, which summarizes his experiences post 5th August –

"Post August 5th, 2019, Kashmir is a phrase that chronicles a series of emotions. I had freshly joined law school a week back and my fascination for the liberty of thoughts and ideas, along with the strong belief that human rights are the strongest pillar in a working democracy, drove me towards pursuing a career in law.  

I was taken aback by the sudden spate of restrictions that laced my home State with barbed wires. The mental agony was beyond punishing. Since all forms of communication were down; connecting back home suddenly became a luxury. An average conversation of three to five minutes with parents was routed through government designated call centres. 

An initial resentment to not let the state dictate conversations with my parents was overrun by the spurt of emotions to have a word with them. The rush in their tone was fermented by the long queue of other parents waiting to contact their loved ones. This emotion was further aggrandized by the constant thought that my parents were living under a siege. 

I struggled to find coherence between the fancy ideas of life and liberty under Article 21 that law school taught us and the diagonally opposite implementation of the same, as I witnessed the slow poisoning of these ideals in Kashmir. 

The past year has painted an image in our minds. It paints the thirty-years of conflict in a brush of one stroke. The paint is red, deep red. The painting is hollow, and has no sign of emotion but the deep red color, that will forever be centered in a maze of contortions". 

As Muazzam’s touching message tells us – the restrictions on communication networks and the prolonged curfew made it difficult to even keep in touch with family members. Just imagine the emotional trauma suffered by all those who were away from their families in August last year? 

After returning home in April, Muazzam had also assisted a Supreme Court lawyer on an ongoing litigation. Throughout the month of April, he had to access research tools such as Manupatra and SCC Online on 2G internet speed. This made it extremely difficult for him to research and download case laws, and he would have to try his luck by ‘refreshing’ the webpage multiple times. 

Thankfully, Muazzam managed to get hold of a broadband internet connection in the month of June, and has not faced a problem since then. At this juncture, it is important for us to remember that such broadband connections are not freely available throughout the region, and are also not as pocket-friendly as a 4G mobile connection. This makes access to 4G even more important for the residents. 

The strict curfew and the barbed wires that Muazzam mentions re-appeared in Srinagar over the last two days. As the ruling dispensation celebrated the ‘one-year anniversary’ of the de-operationalization of Article 370, barricades and barbed wires were placed at regular intervals, and all shops and markets had closed down. Is this the ‘new normal’ that was promised on the floor of Parliament a year back?

So, the next time we hear claims about how there has been ‘restoration of normalcy’ and 'development' in Jammu & Kashmir post August 5^th, the words of Jatin and Muazzam should give us a reality check.

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I am deeply grateful to Jatin and Muazzam for sharing a first-hand account of their experience, and for allowing me to document it here.

Jatin and Muazzam can be contacted on their respective Twitter handles - @dograjatin11 & @_muazzzam.

5th August 2019, and a year thereafter

 5^th August 2020 shall mark exactly one year since the Modi Government made far-reaching changes to the constitutional structure of Jammu & Kashmir (J & K) and Ladakh – by amending Article 370, abrogating Article 35A, and converting the State into 2 Union Territories.

Before recalling the changes introduced in the Rajya Sabha on 5^th August, let us go back a bit further.

The month that preceded 5^th August 2019

Throughout the month of July, there was speculation in the Kashmir Valley that some major changes were being contemplated by the Central Government. A large number of armed troops were brought in, the annual Amarnath Yatra was cancelled, and tourists were asked to leave. President’s Rule had also been in force for more than 6 months. Meanwhile, Satya Pal Malik, the Governor of J &K, tried to assuage fears by stating that there was no need to worry about any change to Article 370 or 35A.

On 4^th August, speculation and anticipation reached such a stage that all political parties in J & K (except the BJP) decided to hold a meeting at Farooq Abdullah’s residence in Gupkar Road, Srinagar. The political parties jointly issued the Gupkar Declaration, which stated that they would be united in their effort to protect J & K’s identity and autonomy. The Declaration also stated that they would not accept any unilateral changes to Article 370 and 35A, or a bifurcation of the State. On the same evening, the J & K Administration disabled access to broadband, landline and internet communication services.

The morning of 5^th August: The Rajya Sabha meets with a surprise

On the morning of Monday, 5^th August 2019, the fears of all political leaders came true, and the Governor was forced to eat his words. Home Minister Amit Shah proposed a slew of constitutional changes in the Rajya Sabha.

In fact, legislative changes began just before Parliament Assembled, as the Central Government got the President to sign an Executive Order that was issued under Article 370. This executive order effectively amended clause (3) of Article 370. Instead of the Constituent Assembly of J & K, the Legislative Assembly would now have the power to make a ‘recommendation’ to amend or abrogate Article 370.

However, as J & K was under President’s Rule, it did not have a Legislative Assembly after the split of the BJP-PDP alliance. After the Executive Order was issued, Home Minister Amit Shah moved a statutory resolution in Parliament, contending that as the Legislative Assembly was suspended, the power to amend Article 370 shall now vest with Parliament. What was left unanswered was whether Parliament could perform the task of a Legislative Assembly, which is also supreme within its own sphere.

The statutory resolution effectively achieved 3 objectives – (i) it amended Article 370 to the effect that all provisions of the Indian Constitution shall apply to J & K without any exception or modification; (ii) it abrogated Article 35A, which was an enabling provision that permitted conferment of special rights and privileges to the permanent residents of the State of J & K; (iii) it repealed the Jammu & Kashmir Constitution, which had been enacted and adopted in 1956 by an elected Constituent Assembly of J & K.

If this was not enough, Home Minister Amit Shah also moved the Jammu & Kashmir Reorganization Bill, which converted the erstwhile State of J & K to two separate Union Territories of J & K and Ladakh. This was the first time in our constitutional history that a State had been converted to a Union Territory. As President’s Rule had been imposed, the changes were made without complying with the mandate of Article 3 of the Constitution, which requires the Legislative Assembly of a State to ‘express its views’ – when there is a proposal to reorganize or bifurcate a State.

As Rajya Sabha MP Derek O’Brien points out, MP’s were not even given a copy of the statutory resolution and the Reorganization Bill in advance, as this was added to the House’s List of Business in the last minute. The resolution and the Reorganization Bill was passed by the Rajya Sabha on 5^th August itself, despite the fact that MP’s lacked sufficient time to study the proposals in detail. The unilateral manner in which the changes were made does not stop with the Rajya Sabha. The proposed changes were not even discussed with the leaders of mainstream political parties of J & K, be it Mehbooba Mufti or Omar Abdullah.

As the Government was explaining its rationale for these constitutional changes, the J & K Administration already began enforcing the orders it had received. Farooq Abdullah, Omar Abdullah, Mehbooba Mufti and other political leaders such as Sajad Lone were placed under house arrest. But before we move to these preventive detentions, let us briefly discuss the Government’s rationale for the constitutional changes it made.

The Government’s rationale and its discontents

For abrogating Article 370 and 35A, the Government gave primarily 3 reasons. First, Article 370 was being used as a tool to fuel separatism and militancy in the Kashmir Valley, and hence needed to go. In this regard, it was also argued that the de-operationalization of Article 370 shall ‘completely integrate’ J & K with India. But, Article 370 never stalled any such integration. The Constituent Assembly of India had envisaged Article 370 to be a bridge between J & K and the Government of India.

It was drafted to govern the manner in which constitutional provisions and parliamentary laws shall be applicable in J & K. The text and wording of Article 370 did not in any way stall or make J & K’s integration with India partial. Moreover, the J & K Constitution (which was also repealed through the statutory resolution) itself stated that J & K’s integration with India is final and complete.

Under Section 3 of the J & K Constitution, the State of J & K “is and shall be an integral part of the Union of India”. This provision of the J & K Constitution was simultaneously repealed, while the Government went about claiming that de-operationalizing Article 370 had ‘completely integrated’ J & K with India.

Second, they argued that abrogating Article 35A shall ensure greater investment and economic activity in J & K and Ladakh, as outsiders would now be allowed to purchase land in the newly constituted Union Territories. What the Government did not say was that outsiders were prevented from acquiring land due to State land laws such as the J & K Agrarian Reforms Act, 1976, and not because of Article 35A.

Abrogating Article 35A alone would have not allowed outsiders to purchase land, as Article 35A itself did not place any such restriction. For precisely this reason, the Fifth Schedule of the J & K Reorganization Act,2019 amended these State land laws, to permit outsiders to acquire land. These amendments were separate, and were not based on any restriction placed by Article 35A.

Third, it was argued that these would lead to ‘more rights’ for the residents of Jammu & Kashmir, as beneficial legislations such as the Right to Education Act, 2009 (RTE) shall now be applicable. What was left unsaid was that J & K had their own version of many of these beneficial legislations. For instance, it had its own version of the RTE i.e. the J & K School Education Act, 2002 – which had equally beneficial provisions. Along with this, the justification given for converting the State of J & K into two Union Territories was that this would lead to ‘better governance’, and that Statehood can be restored once militancy reduces, and the security situation of the State improves.

But, didn’t the Government also say that ‘abrogating’ Article 370 would in itself be a huge step to reduce militancy? And if these changes were indeed so beneficial, why were political leaders and the people of J & K not consulted with and taken on board?

The level of contradictions does not end here. If the Government was so confident of the benefits associated with its decision, then what was the need to keep political leaders under house arrest? And shut down all communication networks (be it internet or landlines) in advance?

The aftermath

The ‘house arrest’ of political leaders

The answer as to why political leaders were immediately placed under house arrest is quite straightforward. Keeping mainstream political leaders in house arrest, by invoking the J & K Public Safety Act, 1978 ensures that they are unable to speak out against these unilateral constitutional changes.

As Omar Abdullah and Iltija Mufti (Mehbooba Mufti’s daughter) mention in recent interviews (see here and here), many detainees were given the option of signing a bond – which would end their house arrest. But, there was a catch. The bond mentioned that they would be released, but the pre-condition was that they would have to fully agree to not speak about any of the changes brought about from 5^th August 2019. The intention was simple – stay silent about all the changes that were made on 5^th August, and you can be set free! If the changes made were indeed so good, then what was the need to ensure people stay silent about them?

If this was not sufficient, a dossier issued by the Police in February, which extended Omar Abdullah’s preventive detention one final time, had stated that he was being detained because he had the ability to ‘instigate gullible masses against the policies of the Central Government’! Yes, the masses were so gullible that there was no need to take them on board before altering the constitutional structure of a State?

A number of political leaders such as Saifuddin Soz have also been subjected to informal detention, where there would be no formal detention order, but the Police would not let the detainee leave his house. When Saifuddin Soz challenged his detention through a habeas corpus petition in the Supreme Court, the J & K Administration contended that it had not detained Soz, and that there was no detention order issued against him.

Justice Arun Misra took this claim at face value, and dismissed the petition. Shortly thereafter, when NDTV and India Today reached Soz’s house, he demonstrated how the Police officers were not letting him leave his residence, stating that they had ‘orders from above’.

Along with mainstream political leaders, even the people of J & K were effectively subjected to detention. Under the garb of preventing mass protests, the J & K Administration invoked Section 144 of the CrPC to enforce lockdowns and curfews throughout the State. Most schools also had to remain shut post 5^th August. While the rest of India faced lockdowns and curfews only after Covid-19 hit us in March, Jammu & Kashmir has been grappling with it since 5^th August. Due to such an extended lockdown and curfew, the Government’s claim regarding an increase in investment and economic activity also falls flat.

Suspension and curtailment of internet and other communication networks

Another major avenue for civil rights suppression was the suspension of internet services, along with other communication networks such as landlines. This suspension commenced on the evening of 4^th August, and has not been completely relaxed even as of today. The blanket ban on internet services continued from August to January. This is now infamously regarded as the longest communications suspension in our history.

The ban was partially relaxed only after the Supreme Court’s decision in the Anuradha Bhasin case, which held that a blanket ban on internet services was disproportionate, and directed the J & K Administration to periodically review its orders. Subsequently, internet services have been allowed at 2G Speed, and landline networks were restored.

When the Supreme Court was petitioned in May to restore 4G internet services, the J & K Administration opposed this move, and made a mutually contradictory argument. They contended that the speed had to be restricted to 2G as there was an increase in militancy and terrorism, and there was a need to pre-empt the misuse of the internet by militants and terrorists. But, they simultaneously contended that 2G speed was sufficient for students to attend online classes during the Covid-19 pandemic, and for doctors to provide telemedicine services. There is a major contradiction in this argument.

If 2G speed is sufficient to attend online classes on Google Meet and Zoom, then why is it not ‘sufficient’ for misuse by militants and terrorists? The Supreme Court failed to address this contradiction, and refused to intervene even after the petitioners presented evidence of the hardships faced by the people of J & K.

Also, while there is no direct link between access to 4G internet and militancy, militancy cannot be used as a justification for a prolonged denial of 4G internet, which is accessed in all other parts of India. This suppression of civil and socio-economic rights is only exacerbated during a pandemic – where students are forced to attend online classes, employees are forced to work from home, and when a significant number of patients can only access telemedicine facilities.

The unilateral imposition of a new domicile policy in the UT of J & K

In the first week of April, the Home Ministry notified a new domicile reservation policy for the Union Territory of J & K. This was also done without any pre-legislative consultation process. After widespread protests that the policy had severely diluted the domicile requirement, the policy was amended within 72 hours. But, how did it become possible in the first place for the Home Ministry to make the reservation policy for J & K? The answer lies in the repeated extension of President’s Rule, which has now been in place since December 2018.

Under the J & K Reorganization Act, 2019, the newly formed Union Territory of Ladakh is to be administered directly by a Lieutenant Governor appointed by the Central Government. But, on the other hand, akin to the Delhi model, the Union Territory of J & K is envisaged to have a Legislative Assembly, along with a Lieutenant Governor.

If President’s Rule had been removed, and fresh elections were held to the Legislative Assembly, then the Home Ministry’s powers to frame policy prescriptions would have been curtailed. In my view, this was precisely the reason why there was no plan to hold elections in J & K even before the onset of the coronavirus pandemic.

Also, while certain sections of the Ladakh population had welcomed the Centre’s decision to carve it out as a separate Union Territory, it was later on realized that the special rights and privileges conferred to the ‘permanent residents’ of the erstwhile State of J & K were automatically taken away, as Article 35A and the J & K Constitution has been abolished.

For this reason, several socio-religious groups in Ladakh have made demands for domicile reservation – that is similar to the special protections that were granted prior to 5^th August. Ladakh has hence also been solely left to the Home Ministry’s mercy, which now has absolute discretion in all policy matters.

The repeal of the J & K Constitution

Finally, let me conclude with the repeal of the J & K Constitution, which often gets excluded from public debate. The J & K Constitution was framed and adopted in 1956 by an elected Constituent Assembly. The purpose behind drafting a separate Constitution was to preserve and safeguard the identity and autonomy of the people of J & K – in a situation where Pakistan was leaving no stones unturned to usurp J & K away from India.

The separate Constitution did not intend to create any parallel legal system, and itself stated in Section 3 that J & K “is and shall be an integral part of the Union of India”. Moreover, Section 147 of the J & K Constitution clearly stated that even the J & K Legislature shall not have the power to amend some of its provisions, such as Section 3, Section 5 and Section 147. If even the J & K Legislature lacked the power to amend the entire Constitution, then how can Parliament abolish it as a whole?

Even if legal provisions were kept aside, there is another fundamental question that we should ask ourselves. How can Parliament unilaterally abolish a Constitution that was enacted and passed by the J & K Constituent Assembly, which consisted of the elected representatives of the people of the State? How can a Constitution, which the people of J & K adopted for themselves, be abolished without in any way taking them on board?

Shouldn’t there also be implied or inherent limitations on Parliament’s power, when Jammu & Kashmir was under President’s Rule, and the views of an elected Legislature could not be taken on board? This is precisely the constitutional betrayal that took place on 5^th August 2019.

The remedy

One year down the line, the situation is far worse than what it was at the same time last year. This can be remedied (albeit partially) only if suppression of civil and socio-economic rights ends in the near future, after full internet connectivity is restored and all political detainees are released. Urgent steps must also be taken to facilitate the return of Kashmiri Pandits - who continue to live in inhuman conditions at refugee camps in Jammu, almost two decades after their forced exile from the Valley.

The long-term goal must be to restore full statehood, and hold fresh elections. Normalcy cannot be restored until we continue to treat J & K and Ladakh in an abnormal manner, and deprive their residents of rights and freedoms that are often taken for granted, in all other parts of India.