Daily Times

This year’s August 5 was a significant day in the long history of the Kashmir movement. The “largest democracy” in the world struck down its constitution with illegal means. The articles, dealing with the disputed region of Jammu and Kashmir, were revoked and the sub-autonomous region of “Jammu and Kashmir State” was taken into the direct control of the central (Delhi) government; depriving the region of its flag, constitution and “constituent assembly.”

There has been a lot of hue and cry in the media as well as among people related to the movement of Kashmir over different legal and political perspectives of the subject. Being the native of the larger state of Jammu and Kashmir, the author, however, has a different viewpoint to offer.

In the first place, the Indian constitution must not be the concern of a pro-Kashmir movement. What India does with the Occupied Kashmir’s “illegally legal status” in its constitution does not practically matter. The Kashmir case is the case of the right to self-determination.

The international personality of the Kashmir conflict, according to the UN resolutions, must not be diluted. The resolutions of the UN are comprehensive and deal with all aspects of the Kashmir conflict. The UNSC resolutions of August 1948, January 1949, January 1951 and January 1957 respectively affirm the right of self-determination to the people of Kashmir. The said resolutions ask for a free and fair plebiscite. They indicate that no geographical or demographic changes could be made in the status of the disputed region until the UN holds a plebiscite in the region. Legally, India or Pakistan cannot unilaterally 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 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 constitution and decide for itself what additional powers should it extend to the central government. Article 370 was designed to protect those rights.

According to the constitutional scholar and advocate of Indian Supreme Court, A G Noorani, Article 370 records a “solemn compact.”

Neither India nor the “state” can unilaterally amend or abrogate the article, except following the terms of the Article. Legitimately, India needed to get prior consent from the “state’s” assembly for revoking the law.

Moreover, Article 35-A was issued in exercise of the powers conferred by Article 370 (1) of the constitution and 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 international personality of the Kashmir conflict, according to the UN resolutions, must not be diluted

In October 2015, the High Court of Occupied Kashmir had 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.

In 2018, the Supreme Court 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 the revocation of article 370 and 35-A 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 the Indian constitution, based on fake accession document. Today, it must also project clearly that no difference had been made after rescinding of article 370. In the author’s opinion, first India was “illegally legal occupational force” and now, it has changed its 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 now been almost three months of the inhumane curfew imposed by India in the occupied valley. This has resulted in severe economic, educational and precious lives lost in the valley. The international community has failed to play its due role in pressurising Modi and his advisors to uplift the curfew. Despite 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 already has cost the region more than $1.4 billion (£1.13 billion), while thousands of jobs have been lost. Vegetables and fruits have been destroyed. The curfew has made the lives of those in the valley miserable. A complete communication blockade has created chaos in the region, and violence will intensify once the curfew is lifted.

Furthermore, the first day of November has ripped the “state” in two union territories (Ladakh, Jammu and Kashmir), which are now governed by two lieutenant-governors representing the centre. This act has caused a real setback for pro-Indian politicians in the region. Now, they have been openly criticising the centre for their unpopular acts. Mehbooba Mufti, the former puppet chief minister of the “state,” even went to the extent saying, “Our forefathers have made a 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 in decisive moments for democratic struggles. These ostracised steps have, for the first time in recent history, witnessed protestors coming out in the areas of Ladakh and Jammu. New Delhi should have realised that the 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 the 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 the whole world and they know they will have to resist to exist!

The writer is a PhD scholar (International Relations) at Selcuk University, Turkey