Daily Times

Pakistan’s tragedy is that at this critical juncture does not have a master politician or diplomat like Mr. Jinnah or Sir Zafrullah Khan who has the coup d’ceil to take full view of the terrain that is laid before us. Our response to recent Indian actions in Kashmir is a knee jerk, not clearly thought out and indicative of bad foreign policy and a complete lack of clarity. The Indian game in Kashmir is well thought out and laden with traps. We are intent at walking into all of these traps.

The kakistocracy that Pakistan is under the PTI government was clearly caught unaware by the sudden Indian move. It is either that or they were on board with the plan all along. One would give them the benefit of doubt and assume that it was the former. The BJP government under Modi is merely a pawn in the longer game devised by the South Block of Indian government secretariat in Delhi. The end objective is not really to change the constitutional status of Kashmir but to get other players in the game to agree to the status quo ante. Pakistan’s position has never been to accept Article 370 in the first place and rightly so. To be sure the full implication of Article 370 is that the State of Jammu and Kashmir is an integral part of India and that Kashmiris are Indian citizens by virtue of Article 1. This is the position that Pakistan has always rejected till now. Now we are virtually fighting for its restoration. I suspect this is what the South Block wanted all along.

Pakistan government’s response has been to internationalise the issue and bring it to bear on the international community that a grave injustice has been done in Kashmir by its de facto revocation under Article 370(3) of the Indian Constitution. India has upped the ante by jailing even those pro-India politicians who were always for Kashmir’s integration into India subject to the terms of the Document of Accession signed by Hari Singh. Our historical position is – and it is borne out by fact – that the said document was obtained by fraud. One does not need to get into the history of this beyond stating that this is not the first time India has acted this way. In August of 1953, Pandit Jawaharlal Nehru had jailed Shaikh Abdullah and dismissed his government. The idea was the same as it is now. It was to browbeat Pakistan into submission on the Kashmir issue.

The end objective is not really to change the constitutional status of Kashmir but to get other players in the game to agree to the status quo ante

Here is how the script will unfold. The presidential order by which the whole sordid act has taken place is patently unconstitutional and in violation of several Indian Supreme Court judgments including the most recent one which is State Bank of India v. Santosh Gupta and Another 2017 2 SCC which holds: “However, when it comes to applying the provisions of the Constitution of India which are not so reflected in the Instrument of Accession, they cannot be so applied without the concurrence of the Government of the State, meaning thereby that they can only be applied if the State Government accepts that they ought to be so applied. Under Article 370(2), the concurrence of the Government of the State, given before the Constituent Assembly is convened, can only be given effect to if ratified by the Constituent Assembly. This legislative scheme therefore illustrates that the State of Jammu & Kashmir is to be dealt with separately owing to the special conditions that existed at the time of the Instrument of Accession.” So I wager that the Indian Supreme Court will – when the time is right- strike down the Presidential Notification as being unconstitutional and restore Kashmir’s status.

This will be touted as a great victory for the Kashmiri people. The pro-Indian Kashmiri leaders will come out and declare that they always believed in India’s constitution and democracy. Our kakistocracy will also declare victory and claim that it was because of Imran Khan’s visionary leadership that the international pressure came to bear on India as a state. Trump might even take credit for the so called mediation he offered. Indians meanwhile will claim that they are a great constitutional democracy that allows the judiciary to uphold the rights of people when the government errs. Many Kashmiri dissidents themselves will begin to accept the narrative that at least in India there is some measure of due process. A new pro-India government under Mahbooba Mufti or Omar Abdullah will sweep into power. The South Block, which is truly apolitical, will quietly savour its triumph having browbeaten Pakistanis into submission and made Kashmir’s independence movement redundant.

Pakistan’s options are extremely limited. There are some in Pakistan who might favour holding a plebiscite in GB and Azad Jammu and Kashmir as a way of upending the Indian design here. However even if India were somehow shamed into conducting a plebiscite of its own in the Indian occupied Kashmir, it would most likely be a sham. The only possible course of action is for Pakistan to declare unequivocally that special status or no special status, India holds onto Kashmir illegally and in contravention to the UN Resolutions. We should offer immediate joint plebiscite under the auspices of the UN – a proposition India would never accept. What we should not do is accept Article 370 as a panacea of all ills. Regardless of the Indian Supreme Court’s decision in favour of the Kashmiris, we should keep to our position that nothing short of immediate implementation of the UN Resolutions is acceptable.

Yasser Latif Hamdani is an Advocate of the High Courts of Pakistan and a member of the Honourable Society of Lincoln’s Inn in London