Umair Pervez Khan
August 05 of this year was a significant day in the long history of Kashmir movement. The “largest democracy” in the world struck down its own constitution with illegal means. The articles dealing with the disputed region of Jammu and Kashmir were revoked and sub-autonomous region of “Jammu and Kashmir state” was taken into direct control of central (Delhi) government, depriving the region of its own flag, constitution and “constituent assembly”. There has been lot of hue and cry in the media as well as people related to the movement of Kashmir have been giving different legal and political perspectives on the subject. Author being the native of the larger state of Jammu and Kashmir, however has a different viewpoint to offer.
In the first-place Indian constitution must not be the concern of a pro Kashmir movement element. What India does with the Occupied Kashmir’s “illegally legal status” in its own constitution does not matter practically. Kashmir case is the case of right to self-determination and the international personality of Kashmir conflict according to United Nations resolutions must not be diluted. The resolutions of UN are comprehensive and deal with all aspects of Kashmir conflict. The UNSC resolutions of Aug 1948, Jan 1949, 1951 and 1957 respectively do affirm the right to self-determination to people of Kashmir. The said resolutions ask for free and fair plebiscite and indicates that no geographical or demographical changes could be made in the status of the disputed region until UN holds a plebiscite in the region. Legally, India or Pakistan, unilaterally cannot alter the position!
Secondly, for the sake of debate if we discuss the legality of the revocation of the said articles it is worthy to mention that the clause 7 of the instrument of accession signed by Maharaja Hari Singh declared that the “State” could not be compelled to accept any future constitution of India. The “State” was within its rights to draft its own Constitution and to decide for itself what additional powers to extend to the central Government. The Article 370 was designed to protect those rights.
According to the constitutional scholar and advocate of Indian supereme court A. G. Noorani, the Article 370 records a ‘solemn compact’. Neither India nor the “State” can unilaterally amend or abrogate the Article except in accordance with the terms of the Article. Legitimately, it was necessary for India to get prior consent from the “state’s” assembly for revoking the law.
Moreover, Article 35A was issued in exercise of the powers conferred by Article 370 (1) of the constitution, basis which the occupied state enjoyed its autonomy to some extent. These two articles were the constitutional connection between occupied Kashmir and the central government. Their revocation has made the so-called treaty of accession null and void bringing the whole state of Jammu and Kashmir to the position of “pre-accession” time 1947.
The High Court of Occupied Kashmir had in October 2015 ruled that Article 370 cannot be annulled as the clause (3) of the article bestows the power to rescind the article upon the “state” constituent assembly. But, as the constituent assembly, was dissolved in 1957, it did not take any such move to revoke the article, and the article acquired a permanent status irrespective of being designated as a temporary provision of the constitution.
The Supreme Court in 2018 had opined on the similar lines and said that since the “state constituent assembly” has been discontinued, the President of India would not be able to implement or execute the obligatory provisions required for its withdrawal.
Therefore, keeping in view all the background and analysis it is inferred that revocation of article 370 and 35A is illegal and must do nothing with the conflict of Kashmir internationally until the demographic and geographic changes are practically implemented in the region and this could only be done once the inhabitants of the state allow these changes to happen.
Furthermore, decades back, the leadership of Azad Jammu and Kashmir and Pakistan was against accepting the special status to the occupied region under Indian constitution based on fake accession document and today it must also project clearly that no difference has been made after rescinding of article 370. In authors opinion, first India was “Illegally legal occupational force” and now it has changed its own status to “blatant illegal occupational force” by changing the so-called special status of the “state” without any legal, political or moral basis.
Additionally, it has been now almost three months of the inhumane curfew imposed by India in the occupied valley. This has resulted into severe economic, educational and precious lives loss in the valley. International community has failed to play its due role in pressurizing Modi and his advisors to uplift the curfew. Despite of the curfew stone pelting, killings, abductions, and protests have been recorded in the occupational valley. According to “Kashmir Chamber of Commerce and Industry” the shutdown has already cost the region more than $1.4bn (£1.13bn), and thousands of jobs have been lost. Vegetables and fruits have been destroyed. The curfew has made the life in the valley miserable. Complete communication blockade has created chaos in the region, and violence will intensify once the curfew is lifted.
Furthermore, the 1st day of November, has ripped the “state” into two union territories (Ladakh, Jammu and Kashmir) which are now governed by two lieutenant governors representing center. This act has caused a real setback for the pro Indian politicians in the region and now they have been openly criticizing center for their unpopular acts. Mehbooba Mufti, the former puppet chief minister of the ‘State” even went to the extent saying that, “Our forefathers have made wrong choice in aligning with India rather than Pakistan during partition in 1947.” They feel betrayed and are under house arrest now for almost three months.
I see this act of Delhi as a blessing in disguise as it has created an opportunity for the leadership of the erstwhile state of Jammu and Kashmir to be united and launch a decisive campaign. Historically, such turns of the occupying forces have always resulted into decisive moments for democratic struggles. These ostracized steps have for the first time in recent history witnessed protestors coming out in the areas of Ladakh and Jammu. New Delhi should have realized that identity issue of the state is touchy irrespective of the religion of the inhabitants. It is not hard to predict that New Delhi will have to pay its price in form of increased extremism and law and order situation.
Finally, it is up to the leadership of the erstwhile state of Jammu and Kashmir (though the leadership crisis in Kashmir movement is evident) to lead the inhabitants of the state at this critical juncture giving them a clear direction. The people of Jammu and Kashmir have become a symbol of resistance in whole world and they know they will have to resist to exist!
The writer is an International Relations, PhD scholar at Selcuk University, Turkey.