Daily Times

Given the protection Article 370 has provided to the State of Jammu and Kashmir, it only required a flagrant violation of law to make such a change in the said article. On August 5, the Indian government stripped Kashmir of its autonomy and its unique regional identity by revoking Article 370 and bifurcating the state territory.

The decision to rescind the statute comes amidst an organised brutal crackdown; crippling any sign of life in the Valley and other parts of the region. In addition, to further the miseries of the long-suffering people of Kashmir, this legislation presents another impending challenge: escalation of hostilities between India and Pakistan. India’s appalling move to contravene its domestic and international commitments requires Pakistan to navigate its foreign policy options through pragmatism and dynamism. History could prove to be a great guide in this regard.

What it means for Kashmir: A careful investigation of subsequent events, which culminated in the recent legislation, suggests that BJP’s government in India has descended into an authoritarian mode–aspiring for expansion and guided by Thucydidean realism–, which will crucify legal and moral obligations to meet these ends.

The presidential order revoking Article 370 can be analysed at two different levels: in terms of its legal and political grounds and its implications for the region. Several historians and legal experts suggest this legislation is inherently in contravention of the Constitution. The way to annul this article is also suggested in this very article. For it to be revoked, prior approval and recommendation of Jammu and Kashmir Constituent Assembly, which was dissolved in 1956, are mandatory. In the absence of Constituent Assembly, the conundrum was settled down by the Jammu and Kashmir High Court in October 2015. The bench ruled in a 60-page judgement that “It (Article 370) is beyond amendment, repeal, abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its amendment or repeal.” Given the protection Article 370 has provided to the State of Jammu and Kashmir, it only required a flagrant violation of law to make such a change in the said article. In addition to this, the political stance of India has always been situated in the historical instrument of accession, which gave way to Article 370. Article 370 then provides the only legal linkage between the Union of India and the disputed state. From Nehru to Atal Bihari Vajpayee, the sanctity of Article 370 remained pertinent to the Indian strategy to deal with the Kashmir Issue. In April 2003, Atal Bihari Vajpayee, the then premier, while speaking to the parliament, quoted, “The gun can solve no problem; brotherhood can. Issues can be resolved if we move forward guided by the three principles of Insaaniyat (humanism), Jamhooriyat (democracy) and Kashmiriyat (Kashmir’s age-old legacy of amity).”

The recent legislation by the BJP Administration comes as the transgression of these core principles of the political strategy, adopted by the past administrations. Democracy has seen its lowest in India. During this event, every voice from the region, including the previous allies of the government, were forcefully silenced. Kashmiriyat has been infringed on through a proposal that included the bifurcation of the region. Lastly, this announcement marks the fulfilment of the administration’s established imperial design in Kashmir, particularly the long-held opinion of the ultra-right wing of the country. What this entails is the dark reality of the direct occupation of the state without heeding to the aspirations of people.

What is at stake for the region, as a result of this unconstitutional and brutal legislation, is the looming threat (which certainly is the agenda of Modi Administration) of a settler-colonial project; similar to what Israel is doing in Palestine. The primary objective is to populate the region with enough non-Muslim population to change the demographic distribution of the region, which favours the Muslim majority’s political aspirations of right to self-determination. In this context, the future of people of Kashmir lies with their potential to mobilise against this treachery and deception on the part of the Indian government, on the one hand, and Pakistan’s ability to trim the sails amidst the shifting global dynamics, on the other.

Kashmir and Pakistan’s Foreign Policy: The issue of Kashmir has remained at the core of bilateral relations between India and Pakistan. Historically, Pakistan’s commitment to the people of Kashmir has remained unwavering. It may be recalled that both Allama Iqbal and Muhammad Ali Jinnah had given much importance to Kashmir. Iqbal was the first Secretary-General of Kashmir Committee. Later on, he became its chairman as well. As for Jinnah, while articulating the importance of Kashmir for the country he was struggling for, he once called Kashmir the lifeline of Pakistan. From 1948 to 1958, Kashmir remained the focal point of Pakistan’s foreign relations so much so that countries supporting us on this issue were considered friends and vice versa.

As quoted by Nawabzada Nasrullah Khan, in 1962, during the Sino- Indian war, where India was defeated by the Chinese forces, an opportunity had arisen for Pakistan to liberate Kashmir. American intervention, with the assurances of meaningful and substantial negotiations over Kashmir, had veered Pakistan off-course.

In September 1965, the conflict over the question of Kashmir flared up in a full-scale war between the two countries. The war was formally brought to an end by the Tashkent Declaration. Under this agreement, both sides agreed to renounce the use of force for the resolution of outstanding disputes, especially Kashmir, between the two countries.

The recent legislation by the BJP Administration comes as the transgression of these core principles of the political strategy, adopted by the past administrations. Democracy has seen its lowest in India. During this event, every voice from the region, including the previous allies of the government, were forcefully silenced

Simla Agreement, at the end of 1971 war, once again brought to fore the status of the state of Jammu and Kashmir. The agreement maintained the value of UN obligations while emphasising the use of peaceful bilateral means to “put an end to the conflict and confrontation that have hitherto marred their relations.” Neither did it hinder the role of UN resolutions to end the conflict nor did it negate the Kashmiris’ inherent “right to self-determination.”

During the early 1990s, when Kashmiris rose against the Indian election rigging, Pakistan continued to provide political and moral support to the people of Kashmir.

Following this, the agreements reached between the two countries during Indian Premier’s visit to Lahore in February 1999 were overshadowed by a limited war fought in Kargil. Another effort to chart peace for the region was made through Agra Summit in July 2011. Despite the history of enmity between the two states, Gen Musharraf and Vajpayee were at the verge of brokering a peace deal when the Indian hawks meddled in and scuttled the joint declaration.

Between 2004 and 2005, composite dialogues provided an opportunity to end the long-held conflict. To resolve the Kashmir issue, Musharraf proposed a new format to discuss the Kashmir issue. He gave a four-point agenda that included; 1) softening of LoC; 2) self-governance/autonomy but not total independence of Kashmir; 3) demilitarisation of borders and 4) joint management and supervision by both the states. Whatever progress had been made under the composite dialogues came to a standstill owing to Samjhuta Express Bombings (2007) and Mumbai attacks (2008).

Seven years after the Mumbai attacks, efforts were made to resume the comprehensive bilateral dialogue to resolve the outstanding bilateral differences. Again, these talks were disrupted by attacks in Jammu and Kashmir. Until recently, Pakistan, under the premiership of Imran Khan, has made numerous efforts to resolve the Kashmir conflict through dialogue and negotiations. But India has remained obdurate in accepting Pakistan’s offer to build peace in the region. Now, when India has denounced any possibility of negotiations through bilateral means, Pakistan is required to mobilise all its diplomatic channels to put pressure on India.

What Pakistan could do? First and foremost, Islamabad’s immediate priority should be to step up its longstanding campaign to get the Kashmir issue on the global agenda and to get the world to condemn India’s policies. Up to now, Pakistan has largely failed to sell its case to the world. The veneer of constitutional linkage between India and disputed state, which has always been used by India to neutralise Pakistan’s efforts to internationalise the issue, is off now. India is officially an occupational power in the region. Pakistan could build its case on legal and humanitarian grounds. Worldwide press coverage of the brutal crackdown followed by the revocation of article 370 also provides the greatest opportunity to Pakistan to internationalise the issue and gather support from across the world.

Secondly, Pakistan is involved in the Afghan peace process, which is rapidly progressing and provides Pakistan with a strong bargaining position against America and other powers involved in the process. In this context, what Pakistan can do is to condition its support for the whole process with the role of the international community in terms of Kashmir Conflict. Thirdly, Pakistan is required to mobilise multi-lateral platforms to put pressure on India. UN Security Council, the Organisation of Islamic countries and the Shanghai Cooperation Organisation are important in this regard.

In addition to this, human rights organisations like Amnesty International, UN Human Rights Commission, and Human Rights Watch could also be moved to set its agenda in motion. The effort should also include the struggle for the immediate release of political prisoners in different detention centres.

Moreover, Pakistan can also consider the option of taking India into the International Court of Justice as the announcement is in direct breach of various UNSC resolutions. To conclude, one must say that the development that has, until now, proven to be a nightmare for the people of Kashmir could well be translated into an opportunity. Unity within the ranks of local political parties over the subject matter, which is unprecedented, and internationalisation of the issue (an unintended consequence of the event) can be used in favour of the people of Kashmir.

Adeel Mukhtar Mirza works from Islamabad Policy Research Institute/Younis Chugtai is a freelance writer and belongs to Kashmir