Daily Times

The latest development by India over the Kashmir issue is that it has scrapped a law that grants special status to Indian-administered Kashmir amid an indefinite curfew and massive troop deployment in the disputed region. The Home Minister of India told parliament on Monday that the president had signed a decree abolishing Article 370 of the constitution, stripping the significant autonomy Kashmir had enjoyed for seven decades.

The legal position is that at the time of Partition, it was through Article 370 of the Indian Constitution that state of Jammu and Kashmir was given an autonomous status as against its other provinces. It also allows the Indian-administered region jurisdiction to make its own laws in all matters except finance, defense, foreign affairs. It established a separate constitution and a separate flag and denied property rights in the region to the outsiders. That means that the residents of the state lived under different laws from the rest of the country in matters such as property ownership and citizenship. It was also stipulated that the status of the Article 370 was provisional, and the Article could only be revoked on the recommendation of the constituent Assembly of the state. But that Assembly after framing its constitution in 1957 was dissolved without making any recommendation for revoking Art.370, perhaps because it knew fully well that such a recommendation would deprive the state of its autonomous status, beside affecting the safeguards provided to the Kashmiries under Article 35-A.

Article 35-A inserted in the constitution by a Presidential decree in 1954 permits the local legislature in Indian-administered Kashmir to define permanent residents of the region. It forbids outsiders from permanently settling, buying land, holding local government jobs or winning education scholarships in the region. The article, referred to as the Permanent Residents Law, also bars female residents of Jammu and Kashmir from property rights in the event that they marry a person from outside the state. Since this provision was included in the Indian Constitution through a Presidential decree, the present President of India has revoked this provision thus depriving the Kashmiris of their rights and special status they had enjoyed for the last seven decades.

Since its inclusion Article 35A had remained unchanged, although some aspects of Article 370 had been diluted over the decades. The critics of Article 35A say that the provision did not have any parliamentary sanction, and that it discriminates against women.

Now the present dilemma of the Indian government is that it does not have power to unilaterally revoke Article 370, which power was given to the state Assembly which was dissolved in 1957. However since 35-A was inserted by a Presidential decree, the Indian government thought it fit to play ducks and drake with it through a Presidential decree, which they have accordingly done. Through Art. 35-A any Indian citizen from any part of the country can now buy property in Jammu and Kashmir, take a state government job and enjoy scholarships and other government benefits. Thus the special status of Kashmir being a land of Kashmiris which was intended to preserve its own sanctity against the outsiders has now been taken away from the local inhabitants of Kashmir. It is a sinister design to colonize Kashmiris and to make it another Palestine as has been done by Israel.

The government, led by the Hindu nationalist Bharatiya Janata Party (BJP), also moved a bill proposing the Jammu and Kashmir state be divided into two “union territories” directly ruled by New Delhi. The Jammu and Kashmir union territory will include the Hindu-majority Jammu region and will have a legislative assembly. The Buddhist-majority Ladakh region, which has a considerable population of Shia Muslims, will also be a union territory, but it will not have an assembly.

In fact, the Indian government has not yet struck down the provision of Art.370, but they have actually dismantled the fate of Jammu and Kashmir as it existed in the Indian constitution. It now consists of union territories which are centrally governed – Ladakh and Jammu and Kashmir. This is a sort of a radical new provision, which many people say will require a constitutional amendment.

It must be kept in mind that Article 370 of the Indian constitution was the basis of Jammu and Kashmir’s accession to the Indian union at a time when erstwhile princely states had the choice to join either India or Pakistan after their independence from the British rule in 1947. The article, which came into effect in 1949, exempts Jammu and Kashmir state from the Indian constitution. Thus if this Article is done away in its entirety, then this would create grave legal complications for India to claim its raison d’eter to retain the state with the Indian Union.

If Article 370 is done away in its entirety, then this would create grave legal complications for India to claim its raison d’eter to retain the state with the Indian Union

In a joint sitting of the Pakistani Parliament on 7th August, the decision to take immediate action on five points have been generally hailed by the nation. It has been decided to (1) to downgrade diplomatic relations (2) to review and suspend mutual trade relations, (3) to sit in full military preparedness to meet any aggression, (4) To celebrate 15th of August as black day in support of showing solidarity with Kashmiris (5) and to take the Kashmir issue to the United Nations and the Security. In addition to that , it was also decided to further activate diplomatic pressures on world powers against India’s nefarious designs.

Narender Modi has with one stroke made a mockery of the promises made by its first Prime Minister Pundit Nehru for holding a plebiscite in Kashmir, has rendered ineffective numerous resolutions passed by the United Nations to resolve this Indo-Pakistan dispute, and even violated the spirit of Simla Agreement which had come into being under international guarantees and mandating that Kashmir dispute existing between the two nations must be resolved by mutual consultations between the two countries and not otherwise.

Visibly it looks that India being a sovereign nation, nothing can physically check it from proceeding ahead with its nefarious designs in its internal matters, except perhaps under very strong international pressure enough to put its own survival in danger. Such a possibility is not in sight in view of its strong political and trade alliances with major powers of the world. The only forum open to dissuade it from taking measures to stop violations of human rights is the UN, but that forum has also failed to exercise any pressure on India in the past. Earlier on, the report of commissions of enquiries ordered by the UN against human rights violations in the valley was ridiculed by India as ‘fallacious’. With May elections, the political situation in India has come under the spell of the revanchist theory of Hindutva, as evidenced by ordinary Indian’s murderous attacks on fellow citizens for ‘gaorakhsha’. However Kashmiri people’s struggle is unlikely to be suppressed. It may lose steam now and then , only to resurge when another Burhan Wani arrives.

In my opinion, Pakistan may take all options except open hostility. While it must offer its moral and diplomatic support to the Kashmiri people at all forums , it should trim its expectations from the Muslim countries who have done nothing in the past for Kashmir cause. However the United States at this particular juncture when it needs Pakistan’s help in her safe exit from Afghanistan can put sufficient pressure on Modi to at least stop genocide in Kashmir.

Meanwhile, Pakistan must concentrate on acquiring economic strength, making the polity truly democratic, confining religion to the private lives of the people, and guaranteeing justice for all. With iron will, we must hold back the fundamentalists and reactionary forces from taking any steps to morally weaken our case which is presently on very good and firm moral footing. We must not repeat our past mistakes which brought us bad name in the comity of nations.

The writer is a former member of the Provincial Civil Service, and an author of Moments in Silence