Daily Times

There can be no denying that by revoking article 370 on August 5, 2019–the Modi Government did not only violate its own constitution but also the fundamentals enshrined in the document of the accession of 1947– India has committed serious constitutional disarray in terms of the Global Constitution upheld by the United Nations, as well the Constitution of India. The former chief minister of the state Omar Abdullah called it “a total betrayal of the trust that the people of Jammu and Kashmir had reposed in India when the State acceded to it in 1947”. While addressing the Security Council the Foreign Minister of Pakistan in 1947 sir Mohammad Zafar Ullah Khan said, “Cannot Pakistan with equal justice retort with regard to Kashmir in the very words employed by the Government of India in respect of Junagadh, that the so-called accession of Kashmir to India is in utter violation of the principles on which the partition of the country was agreed upon and effected, that it is an encroachment on Pakistan’s sovereignty and territory and that it represents an attempt to disturb the integrity of Pakistan?” It is a truism that the ultimate destiny of the Indian Occupied Kashmir will only remain decided by the will of the Kashmiris.

From granting a special Kashmir status by Nehru’s Government to Modi’s revoking article 370/35a, Kashmiris find themselves hamstrung by New Delhi’s legal brinkmanship over their rights. Initially, it was discerned that the people of Kashmir should decide its future. But subsequently, this promise was not fulfilled. The Article 370 –which was established in 1949, albeit promulgated under the Nehru Government in 1954– exempted Jammu and Kashmir State from the Indian constitution. This granted most governing powers to Kashmiri’s except critical powers such as defense, foreign affairs, currency and communication. Kashmir was given its own constitution and flag and the Kashmiri Assembly was allowed to decide which Indian laws should be applied to Kashmir.

From granting a special Kashmir status by Nehru’s Government to Modi’s revoking article 370/35A, Kashmiris find themselves hamstrung by New Delhi’s legal brinkmanship over their rights

Later in September 1957, the Security Council took up Kashmir for consideration and subsequently on November 16 rive countries, including the UK and the US, moved a resolution asking UN’s appointed arbitrator Graham Dixon to work out within three months “an early agreement on demilitarisation procedures”. But due to geopolitical tussle between the superpowers accompanied by India’s mischievous conduct, the UNSC role on the issue of plebiscite remains stooped since 1964. However, the autonomy that Kashmir enjoyed became a problem for the central government.

Traditionally put, the attitude of the Government of India on the question of accession had always been consistent, arguing there was a conflict between the ruler and the people on the issue of accession, the will of the people must ultimately prevail. That was the position taken up in Junagadh. In Kashmir, unlike Junagadh, the ruler’s decision to accede to India was supported by the premier political organization in the State – the National Conference. Lamentably over the past few decades, India has been deviating from the position– taken by it earlier regarding holding a fair plebiscite-by chauvinistically maintaining that the Kashmir dispute is not a territorial dispute between the two countries, rather, it is a conflict situation in the eye of International Law only ejected to because of Pakistan’s aggression against India. Hence, the situation could not and should not be allowed to change the legal, political and geographical status of Jammu and Kashmir which has become an integral part of India by virtue of the Accession.

Unfortunately, it became clear that India has had no intention of protecting Kashmir’s autonomy as in no time it started to act like yet another occupying imperial force and resumed the oppression of the region’s long-suffering Muslim population. Academically examining, the scrapping of Kashmir’s special status is clearly meant that pledges made under Article 370 and 35A of the Indian Constitution no longer apply and that Kashmir comes under the direct rule of New Delhi. Article 7 of the Instrument of Accession was specific that Jammu and Kashmir was not committed to the acceptance of any future Constitution of India unless specifically accepted in terms of Article 5 of the Instrument of Accession. In other words, it was clear that the treaty relationship required a modification through a supplementary instrument, detailing the modified relationship.

The provision of Article 35A provision, articulated with Article 370, allowed the state of Jammu & Kashmir including the Vale and Laddak to have its own constitution, a separate flag and independence over all matters except foreign affairs, defence and communications. Whereas, article 35A also upheld the provision that all identified residents are issued a permanent resident certificate, which entitles them to special benefits related to employment, scholarships and other privileges. But the biggest advantage for permanent residents is that only they have the right to own and, therefore, buy, property in the state. It further upheld that the state legislature can also alter the definition of a permanent resident or other aspects of the law by a two-thirds majority.

“The new law is a major departure from the earlier position of law, under Article 35A of the Indian constitution and Section 6 of J&K constitution that empowered the J&K assembly to define a permanent resident of Jammu & Kashmir,” said Mirza Saaib Beg, a Kashmiri lawyer at the Blavatnik School of Government at the University of Oxford. Article 370 of the Indian Constitution clearly endorsed that Constitutional provisions could be extended to Kashmir by the central executive only upon the ‘concurrence’ of the state. The intra vires powers of the Indian parliament would extend only to matters that come within the ambit of defence, external affairs and communication. With the central government bifurcating the former into two ‘Union Territories’ under the direct control and mandate of the latter. All this while the people of Kashmir, their voices and their representation were systematically muted, through brute force and raw power.

This was at a time when the state apparatus was restrained, the legislative assembly was superseded and the Governor’s rule was in motion-all these development are in clear violation of international law as well as India’s own domestic law. The Modi Government’s introduced new domicile rule 2020 is fundamentally unwarranted. A permanent resident has now been replaced with “domicile” with retrospective effect. It is legally questionable if such a power exists in the parent Act itself. New classes of people have been made eligible for domicile status including migrants, central government employees, Indian armed forces personnel and their children who meet the eligibility criteria. It also concocted an alternative history, twisting data and facts via fake and dubious means to turn Indian public opinion against the plight of Kashmiri Muslims.

To be continued

The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan