India's recent decision on Kashmir explained

KANWAL SIBAL *
Published 02.11.2019 01:21
Indian paramilitary soldiers close a street using barbed wire in Srinagar, Kashmir, Aug. 10, 2019. AP
Indian paramilitary soldiers close a street using barbed wire in Srinagar, Kashmir, Aug. 10, 2019. AP

The nullification of Article 370 is clearly India's internal affair. The constitutional arrangements between India and Jammu and Kashmir (J&K) have always been an issue of internal political management without external obligations. The U.N. resolutions on Kashmir preceded Article 370; they did not stipulate any particular constitutional arrangement between India and the J&K state. If the United Nations 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 an 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 in the constitution of India were extended to J&K from time to time, in many core ways its autonomy remained untouched. It retained its demographic personality and its cultural identity; no one from outside the state was allowed 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 the partition were denied residency status, which meant no voting rights for state legislature, discrimination in education 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 tribal 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 and 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 rift between Kashmir and the rest of India. A section of the Muslims of the valley has nurtured "azadi" claims, though never defining the term to maintain the air of estrangement and separatist politics. Wahabism has progressively smothered the Sufi traditions of the valley, with cinemas, bars and entertainment centers closed down for the creation of an Islamic enclave in the secular country. Between 1989 and 1990, Islamic forces in the valley forced the eviction of the indigenous population of Kashmiri Pandits in a grievous act of ethnic cleansing.

Pakistan has been at the root of the Kashmir issue and its projection on the international stage. Pakistan occupied a part of the J&K state illegally in 1947 (PoJ&K), prompting India to seek redress from the U.N. It then violated the U.N. resolutions by not withdrawing from illegally occupied territory as a precondition for holding a plebiscite. By exerting military aggression against India in Kashmir in 1965 and 1971, it violated the U.N. resolutions again. Under the 1972 Simla Agreement, it committed itself to a solution to the Kashmir issue bilaterally and peacefully with India, without 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 internationalizing 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 (LoC) with PoJ&K and the Line of Actual Control (LAC) 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 was to say, given the fuss it is making over it, that the retention of Article 370 made its integration with India acceptable. This applies to Ladakh as well, unless China too were to say that with Article 370 intact China would have been willing to settle the border dispute with India in Ladakh, which is not the case.

Pakistan is mobilizing an international campaign against India's constitutional move in J&K, even though it does not disturb peace in the region or affect Pakistan's security. Pakistan is, in fact, creating tension with 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 internationalize the Kashmir issue by engineering a closed-door discussion on J&K in the U.N. Security Council in August. While no outcome statement or press release was created, 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 U.N. General Assembly session.

Pakistan is hardly in a position to project itself as a protector of human rights in J&K given its own abysmal human rights record in treating its ethnic groups and minorities, including Balochs, Shiites, Ahmadis, Christians, Sikhs and Hindus. Its blasphemy laws terrorize the minorities, while extremist organizations within the country like Sipah-e-Sahaba target Shiites. It has used air power and heavy weapons against its civilian population in frontier areas. It protects its organizations that serve as instruments for terrorist operations in India and Afghanistan. It has brought about demographic changes in PoJ&K and suppressed political freedom there.

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 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 terror in J&K over the last 30 years, its proxies operating in the state, the use of social media to instigate violence, the radicalization of a section of 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 destabilizing whole societies, incarcerated countless numbers in re-education camps to combat radicalism, interfered with religious practices of minorities and so on.

Friendly countries must avoid encouraging Pakistan's hostile campaign against India, 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 terrorist elements.

Those supporting the tension being created by Pakistan for India's constitutional changes in J&K must not resort to diplomatic equivocation by calling for a resolution of the Kashmir issue between India and Pakistan on the basis of the U.N. Charter, U.N. resolutions and the Simla Agreement. The two references to the U.N. Charter in the Simla Agreement relate to maintaining durable peace in the subcontinent and refraining from threats or use of force against each other's territorial integrity. Both have been violated by Pakistan by disturbing peace through physical aggression and terrorism. The Simla Agreement does not stipulate that the Kashmir issue has to be resolved in accordance with the U.N. Charter. It actually excludes the defunct nonbinding 1948 and 1949 U.N. Security Council resolutions on Kashmir as a solution by committing both sides to resolve the issue bilaterally, without any U.N. or third-party mediation. In any case, these resolutions to be applicable today requires 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 the terrorist presence there. China will have to transfer back the Shaksgam Valley, remove fully its civilian and military presence in PoJ&K, and rollback 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 realize that this only facilitates declared Pakistani designs in J&K and boosts Imran Khan's unsatisfactory efforts to internationalize 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 toward its own people and will not accept interference in its internal affairs in line with the provisions of the U.N. Charter.

* Former foreign secretary of India and former ambassador of India to Turkey

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