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The Boiling Cauldron of Kashmir From a Legal Perspective (Editorial September 2019)

The Boiling Cauldron of Kashmir

From a Legal Perspective

“Time is on the side of the oppressed today, it’s against the oppressor. Truth is on the side of the oppressed today, it’s against the oppressor. You don’t need anything else.”  ― Malcolm X

A zealous Hindutva follower Narendra Damodardas Modi has shown his true face: a usurper of rights, an Islamophobe and a tyrant. In what can be called sheer obstinacy and utter disregard to United Nations resolutions, he has played a sinister move of dividing and annexing the India-occupied Kashmir (IOK). Tearing apart the constitutional rules of self-government for Kashmir, and going back on the promises his predecessors had made to the Kashmiri people, the Indian premier revoked Articles 370 and 35A of his country’s constitution ending the ‘special status’ that the Kashmiris had enjoyed since 1954, effectively annexing the occupied valley. This malicious move, as expected, has raised a lot of hue and cry in Pakistan as well as all over the world as this is a UN-recognized bilateral dispute – the oldest on the UN agenda. Hence, this is ominous for peace in South Asia, and the world for that matter since the occupied valley is a nuclear flashpoint between the two nuclear neighbours, India and Pakistan. And, any escalation in this hair-trigger confrontation between the two archrivals would also threaten the entire world.

On August 06, Indian Home Minister, Amit Shah – Modi’s alter ego – presented the Jammu and Kashmir (Reorganisation) Bill, 2019, in Lok Sabha, the lower house of Indian parliament. The bill, which was passed with 370 votes in favour and 70 against, has divided IOK into two union territories namely Jammu and Kashmir and Ladakh. However, it is more than evident that India wants to “change the demography of Kashmir through ethnic cleansing,” as Prime Minister Imran Khan has rightly pointed out. The manifesto of the ruling Bhartiya Janata Party (BJP) and the slogans it adopted for its campaign for the 2019 general elections do also affirm this assertion. The BJP made it an election pledge to change the demography of the state of Kashmir by abrogating Articles 370 and 35A of the Indian Constitution. Moreover, it aroused sentiments of nationalist and ultranationalists Hindus with slogans such as ‘Hindu Ahead Campaign – Land in Kashmir’, ‘BJP’s No to Art 35A’, ‘Easy Way to Delete Article 370 and 35A – Simply Cut them with Scissors’, ‘Campaign to Abolish Article 370 – for A Safer India, United India, Happier India’ and so on.

However, abrogation of the two articles not only contravenes India own constitution but also violates various bilateral agreements between India and Pakistan, the unanimously adopted UNSC resolutions, and above all international law.

First of all, the procedure adopted to get this amendment passed from the Indian parliament was like putting cart before the horse. According to Article 368 (2) of the Indian constitution, “… [W]hen the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill …” This very provision was violated as the Indian government rested its bill to scrap Kashmir’s special status on a presidential decree. Moreover, any such amendment required the consent of Jammu and Kashmir Assembly which was never sought as the assembly had already ceased to exist.

Besides, the amendment to abrogate Articles 370 and 35A is ultra vires the Indian constitution (Article 368). In this regard, India’s former law minister, Shanti Bhushan, opines: “Under Article 368 of the Constitution, Parliament has the power to amend the Constitution. But in view of the Supreme Court’s ruling in the Kesavananda Bharati case, Parliament can’t amend the basic structure of the Constitution.”

Secondly, this renders bilateral agreements, particularly Simla Agreement which was bilaterally signed on July 2, 1972, void and inoperative as both the states had agreed to not unilaterally alter the situation of any of the problem until its peaceful settlement. Article 2(b) of the Simla Agreement reads: “……..Pending the final settlement of any of the problem between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.”

Withdrawing Kashmir’s special status also breaches UNSC resolutions. All the UNSC resolutions recognize Kashmir as a disputed territory between India and Pakistan. UNSC resolution 47 devised a clear mechanism for the peaceful resolution of conflict which illustrates, “accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite”. Several other resolutions do also recognize the right to self-determination of the Kashmiris. Since it was the Indian government that first took the matter to UNSC; therefore, the recent manoeuvring breaches the propositions of the Council resolutions.

As regards international law, it can undoubtedly be argued that the self-determination is a legal norm of international law – some jurists even consider it a customary international law. Also, self-determination is mentioned in the UN Charter, though in a limited manner. The other relevant instruments adopted in this regard include: Declaration on the Granting of Independence to Colonial Territories and Peoples, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, and last but not the least, General Assembly Resolution 1541. Moreover, this step also violates the Fourth Geneva Convention.

Article 32 of the Geneva IV prohibits torture against civilians in the occupied territory. There are over 700,000 Indian soldiers occupying Kashmir, making it the world’s most densely-militarised zone. Moreover, before withdrawing the special status of Kashmir, the Indian government shut down all communication between the region and the outside world and placed it under curfew which has still not been lifted when these lines are being written.

India under Modi has become an epitome of brazenness, perversity, belligerence and despotism. It has made Kashmir the biggest open jail on earth and the Kashmiris are reeling under its endless oppression. The cauldron is boiling and India will have to face the retribution about which it must not complain as it is itself sowing the seeds of its destruction with the naked aggression on Kashmir.

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