The conviction of nine pro-democracy campaigners in Hongkong for leading the so-called “umbrella movement” (they held yellow umbrellas as their symbol) calling for free elections confirms that from Europe to the United States and Israel to India, governments are pulling down the shutters on dissent and diversity. The Bharatiya Janata Party’s threat unilaterally to abrogate New Delhi’s contractual commitments over the state of Jammu and Kashmir is another indication of the uniformity that central governments that refuse to share authority are imposing.
Federalism faces stiff opposition in India as well as China. Hongkong and Jammu and Kashmir are both small constitutionally autonomous border units of large nation-states whose central government is jealous of the authority vested in subordinate groups. Both are legally bound to recognize and respect the smaller unit’s autonomy. Neither is anxious to do so.
Like Hongkong which was a British colony until 1997, Jammu and Kashmir also enjoyed a separate identity until 1947 when, despite Rajnath Singh’s forceful but not well-informed assertions, it came to a conditional arrangement with India. But why blame the Home Minister when the Prime Minister himself distorts facts? “Two prime ministers for Hindustan? Do you agree with it?”, Narendra Modi thundered at an election rally. He denounced as some kind of treason Omar Abdullah’s assertion that Kashmir had its own unique identity at the time of Independence with a “prime minister” whose office and designation should be restored.
Mr Modi’s outrage was thoroughly misplaced. Each of the 11 provinces of British India — Madras, Bombay, Bengal, United Provinces, Punjab, Bihar, Central Provinces and Berar, Assam, North West Frontier Province, Orissa and Sind – boasted a prime minister under the Government of India Act, 1935. A K Fazlul Haq was Bengal’s first prime minister, just as B G Kher was Bombay’s and Govind Ballabh Pant that of UP.
That continued until the republican Constitution came into force in January 1950. As a princely state, Jammu and Kashmir was in a different category. But its head of government was designated prime minister and not “dewan” as in other important states like Mysore and Baroda.
At Jawaharlal Nehru’s insistence, Maharaja Hari Singh appointed Sheikh Mohammed Abdullah as prime minister, succeeding Mehr Chand Mahajan who held the same title, at the time of merger. Today’s politicians and commentators choose to forget that Hari Singh acceded to India in respect of only the three subjects – defence, external affairs and communications – covered by the 1935 Act.
Nor does anyone seem to be aware that Clause 5 of his instrument of accession states- “The terms of this my Instrument of accession shall not be varied by any amendment of the Act or of the Indian Independence Act 1947 unless such amendment is accepted by me by an Instrument supplementary to this Instrument.” It seems to restrict New Delhi’s options regarding the state.
The Indian Constitution’s Article 163 (“There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions …”) does not apply to Jammu and Kashmir which adopted its own constitution in 1956, something that no other Indian state did. The head of government continued to be called Wazir-e-Azam (prime minister) while the head of state (governor elsewhere) was Sadr-i-Riyasat.
The state assembly changed both titles in 1965 under Delhi’s pressure. But while some symbols of Jammu and Kashmir’s historic identity were whittled away, some of the substance is enshrined in the still valid Articles 370 and 35A of India’s Constitution. The former acknowledges the autonomous status of Jammu and Kashmir while the latter empowers the state’s legislature to define “permanent resident” and provide special rights and privileges to those permanent residents from which non-permanent residents are excluded.
Hongkong, too, is battling for what it sees as its autonomous regional rights under the “one country two systems” formula China invented while the central authority is tightening its hold. The demonstrations, protests, arrests, prosecution and convictions are features of the pains of Hongkong’s integration with China after 155 years as a British colony and bustling centre of capitalist enterprise.
Being itself dedicated to vigorously unCommunist economic activity, Beijing doesn’t object to Hongkong’s commercial enterprise which it can call “socialism with Chinese characteristics”. But it will not brook the demand for universal adult suffrage or allow Hongkongers to elect their own leader instead of Beijing’s nominee.
The pro-democracy Occupy Central movement the protesters founded in 2013 joined the student-led umbrella movement a year later to block reforms that would allow Hongkong to have direct elections but only of candidates already screened by Beijing.
The convicted protesters include a 75-year-old Baptist minister, a 60-year-old sociology professor, and a law professor aged 54. They were among those found guilty of a rarely used colonial-era law (like India’s law on sedition) on creating a public nuisance for their role in the largest civil disobedience movement in the city’s history. Some of them could be sent to prison for up to seven years.
Other defendants, including two pro-democracy politicians, two former student leaders, and a female activist, were convicted of inciting others to cause a public nuisance as well as inciting others to incite. One former lawmaker was found guilty of incitement to incite others to create public nuisance.
The prosecution argued that the protests shut down parts of the city for almost three months causing “unreasonable” disruptions to public order. In a summary of the judgment, Hongkong’s presiding judge held that while civil disobedience was a recognized form of resistance, it was not a defence to a criminal charge.
Amnesty International’s Hongkong director describes the guilty verdicts as “a crushing blow for freedom of expression and peaceful protest.” He accuses the government of using “vague charges in their relentless persecution of the Umbrella Nine.” China, which is treaty-bound to retain Hongkong’s economic and political systems for 50 years after 1997 when the United Kingdom, represented by the last British governor, Chris Patten, transferred it to Chinese sovereignty in an emotional ceremony, has slowly but surely been eroding the city’s distinctive identity since then. Given the rate of encroachment, it is doubtful if much autonomy will remain beyond 2047 to distinguish Hongkong from other thriving Chinese cities like Guangzhou or Shenzhen.
There are huge differences of scale and intensity between the Indian and Chinese situations. But there would have been no Umbrella Nine revolt in Hongkong if Beijing had respected the terms of the handover. Similarly, aazadi might not have reared its head in Jammu and Kashmir if New Delhi had abided by the terms of Hari Singh’s accession. The federal principle is eroded in both cases by a political authority that thinks only in unitary terms.
Sunanda K Datta-Ray is the author of several books and a regular media columnist.
