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India’s Kashmir decision explained

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Newly recruited Indian army soldiers from the Jammu and Kashmir Light Infantry during a parade in Srinagar on Saturday. afp

India’s Kashmir decision explained

The nullification of Article 370 is clearly India’s internal affair. The constitutional arrangements between India and Jammu and Kashmir (J&K) has always been an issue of political management internal to the country, without involving any external obligation.

The UN Resolutions on Kashmir preceded Article 370; they did not stipulate any particular constitutional arrangement between India and the J&K state.

If the UN Military Observer Group in India and Pakistan (UNMOGIP) was allowed to be present in J&K for several years it was to monitor the cease-fire between India and Pakistan, not have oversight on the constitutional status of J&K.

Article 370 was merely a feature of J&K’s integration into the Indian Union, and a temporary one at that. It did not in any way give the state any external personality.

If India’s domestic politics and juridical issues prolonged the life of this article, political considerations of overriding national interest have now compelled its revision. Because the existence of Article 370 did not create any external rights on the state, its nullification does not obliterate any such rights either.

Even though many articles of the Indian Constitution were extended to J&K from time to time, in many core ways its autonomy was not touched.

It retained its demographic personality and its cultural identity; no one from outside the state was entitled to buy land or property there. The state alone had the power to determine residency rights. This resulted in many forms of injustice, which the central government overlooked.

Those from Pakistan who took refuge in J&K after partition were denied residency status, which meant no voting rights for the state legislature, discrimination in educational and employment opportunities, and so on. Denying residency and property rights to the children of J&K women who married outside their state was a glaring case of gender discrimination.

The J&K population could not benefit from the many socially oriented central schemes such as reservations for tribals and scheduled castes. The list is long.

Rather than ensuring that it continued to benefit from its autonomous status by constructively adjusting its autonomy to national requirements, making economic and social progress in rhythm with the nation as a whole, striking deeper democratic roots as a society in tune with the rest of the country, the state’s majority Muslim leadership, in control of the politics of the state, has contributed in every possible way to create a two-way alienation between Kashmir and the rest of India.

The deadly hand of Pakistan has been at the root of the Kashmir issue and its projection on the international stage. Pakistan occupied a part of J&K state illegally in 1947 (PoJ&K), prompting India to seek redress from the UN. It then violated the UN Resolutions by not withdrawing from illegally occupied territory as a pre-condition for holding a plebiscite. By committing military aggression against India in Kashmir in 1965 and in 1971, it violated the UN Resolutions again. Under the 1972 Simla Agreement it committed itself to a solution to the Kashmir issue bilaterally and peacefully with India, without any third party intervention.

With its terrorist onslaught on Kashmir in 1990 after the Soviet withdrawal from Afghanistan, which has continued since then relentlessly, with infiltration, arms supplies and proxy action, it has violated the Simla Agreement. Its military adventure in Kargil in 1999, aimed at internationalising the Kashmir issue, failed.

India’s constitutional changes in J&K by creating two separate Union Territories, comprising of J&K and Ladakh, do not affect their external boundaries, be it the Line of Control with PoJ&K and the Line of Actual Control with China in Ladakh. Both Pakistan and China have no reason to protest. Because Pakistan has never accepted J&K’s integration with India, whether Article 370 exists or not is irrelevant, as it creates no new situation, unless Pakistan were to say, given the fuss it is making over it, that the retention of Article 370 made its integration with India acceptable to it. This applies to Ladakh as well, unless China too were to say that with Article 370 in tact China would have been willing to settle the border dispute with India in Ladakh, which is not the case.

Pakistan is mobilising an international campaign against India’s constitutional move in J&K even though it does not disturb peace in the region or affects Pakistan’s security. Pakistan is, in fact, creating tensions by its shrill and unrestrained attacks on India, including personal abuse against its prime minister, and by conjuring up the threat of a nuclear war. China has backed Pakistan’s bid to internationalise the Kashmir issue by engineering a closed-door discussion on J&K in the UN Security Council in August. While no outcome statement or press release resulted, Pakistan remains undeterred by this setback and has raised the issue of human rights violations in J&K at the Human Rights Council in Geneva (and received a befitting reply from India), and intends to agitate it in the forthcoming UNGA session.

As against constitutional changes made in J&K through a democratic parliamentary process that is open to judicial scrutiny, Pakistan has brought about major unilateral changes in PoJ&K by illegally ceding the Shaksgam Valley to China, allowing China to build the Karakoram Highway through PoJ&K and now the China-Pakistan Economic Corridor (CPEC) which, in Pakistan’s own definition, is “disputed” territory. It has changed the territorial and geopolitical status quo and threatened India’s security with the CPEC with the permanent positioning of Chinese military and civilian personnel in PoJ&K.

Given the reality of Pakistan sponsored terrorism in J&K over the last thirty years, its proxies operating in the state, the use of social media to instigate violence, the radicalisation of a section of the Kashmiri Muslims, the activities of the separatists long tutored and supported by Pakistan, India has thought it fit, based on past experience and lessons learned, to impose restrictions on movement and communications in the Kashmir Valley to ensure the safety of law-abiding citizens and prevent terrorist violence. These are temporary measures, to be lifted progressively by the authorities as they monitor the situation.


Those critical of India for violating human rights In J&K are showing a disrespect for India’s democracy because the means it has deployed to prevent violence are proportionate and exposed to domestic political debate, media scrutiny and judicial oversight. Democracies too have to defend themselves from external threats, but unlike some of those who are critical, India has not intervened militarily abroad, inflicted terrible misery on millions by ousting unpalatable governments and destabilising whole societies, incarcerating countless numbers in re-education camps to combat radicalism, interfering with religious practices of minorities, and so on.

Friendly countries have to be watchful that they do not encourage Pakistan’s hostile campaign against India and encourage its verbal excesses and war-mongering hysteria, as that can only close doors for a bilateral dialogue that they recommend as a path to a solution. Equating India and Pakistan is wrong; so is placing the burden of resuming dialogue equally on both. It is not possible to resume dialogue with Pakistan unless it abjures terrorism credibly and verifiably. The international community should not obfuscate Pakistan’s terrorist affiliations.

Those pronouncing on the tensions being created by Pakistan on India’s constitutional changes in J&K must not resort to diplomatic equivocation by calling for a resolution of the Kashmir issue bilaterally by India and Pakistan on the basis of the UN Charter, UN Resolutions and the Simla Agreement. The two references to the UN Charter in the Simla Agreement relate to maintaining durable peace in the subcontinent and refraining from threat or use of force against each other’s territorial integrity. Both have been violated by Pakistan by disturbing peace through physical aggression and jihadi terrorism. The Simla Agreement says nowhere that the Kashmir issue has to be resolved in accordance with the UN Charter. It actually excludes the defunct non-binding 1948/49 UN Security Council resolutions on Kashmir as a solution by committing both sides to resolve the issue bilaterally, without any UN or third party mediation. In any case, for these resolutions to be applicable today will require the status quo ante in the erstwhile J&K state to be restored, with Pakistan withdrawing fully from PoJ&K, undoing demographic changes and totally eliminating terrorist presence there. China will have to transfer back the Shaksgam Valley, remove fully its civilian and military presence in PoJ&K, and roll-back the CPEC.

Calling India to respect human rights and restore access to services such as the internet and mobile networks and resume political engagement with local leaders and schedule the promised elections at the earliest opportunity is a very prescriptive approach, amounting to interference in India’s internal affairs. They should realise that this only facilitates declared Pakistani jihadi designs in J&K and boosts Imran Khan’s hysterical efforts to internationalise the Kashmir issue and encourage Kashmiri elements to rise against New Delhi’s decision.

India as a sovereign country and a democracy is fully conscious of its responsibilities towards its own people and will not accept interference in its internal affairs, in line with the provisions of the UN Charter.

Kanwal Sibal is a former Foreign Secretary of India.


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