BJP led government of India on Monday scrapped the special status of its only Muslim majority province Jammu and Kashmir through series of presidential orders and bifurcated the state into two union territories after ensuring complete lockdown in the valley by sending thousands of troops, imposing curfews, arresting civil and political leaders, suspending all modes of communications and by creating an atmosphere of unprecedented fear, chaos and confusion firmly indicating that the consent of the governed is missing in this brazen exercise. While many mainstream Indian leaders hailed the decision as historic for the territorial integrity of India but many Kashmiri Muslims feel betrayed and cheated and are wondering if they made a historic blunder by rejecting the two-nation theory. It is unfortunate that a nation that once fought so vigorously against British attempt to divide its provinces such as Bengal on religious lines is playing the same evil game with its own people who have allegedly lost faith in it due to incessant betrayals ranging from deliberate rigging of elections to toppling of democratically elected governments. In the words of an eminent academician PB Mehta– “Even if Article 370 were to be scrapped, the proposal to alter Jammu and Kashmir’s status to Union Territory, even if temporarily, is designed to humiliate an already subjugated population. How dare a Muslim dominated state exists in India? Kashmir can now not even be trusted to be a state. The optics of this measure is not integration, it is humiliation, of a piece with subtle and unsubtle reminders to minorities of their place in India.”
Since the authorities at whose behest all this was done constitute the government of India, they have done not only an irreparable damage to the honor of this republic but have also portrayed it as a nation that relishes in breaking promises made to its own people. All this should not come as a surprise given that the people who took this drastic decision come from a class of Hindu Upper Castes who have been historically adept at taking decisions ill-intentioned at best and inegalitarian at worst. Though these bloodline based cliche castes constitute only 10-15% of the Indian population but have been dominating and exploiting the riches of the sub-continent since long by manipulating public opinion using vicious tactics of communal hatred, Islamophobia, jingoism, etc and through their cowardly hate speeches bring shame and disrepute to the whole nation. If one were to analyse the forces behind all controversial, insensitive and communal decisions taken in India over the last two centuries, almost all would invariably come out to have been taken or engineered by someone from this rigidly over-pampered and notorious tiny class. (to have a better understanding of their historic injustices, one is advised to read the writings of Dr. Bhimrao Ambedkar). And now they have wreaked havoc on Kashmir. They seem to forget that while governments come and go but certain injustices have tendencies to torn apart nations.
The genesis of the Kashmir Dispute-
India got independence from British rule in 1947 but unfortunately was partitioned into two nations namely India and Pakistan. Under the partition plan, Hindu majority areas of British India were to constitute India and the Muslim majority areas were to constitute Pakistan. Hundreds of princely states of the subcontinent were given the choice of either acceding to any of these two dominions or remain independent but were advised to keep in mind their people’s wishes and geographical circumstances. Kashmir was a Muslim majority state, (as per 1941 census) but it had a Hindu Upper Caste Maharaja who initially wanted to remain independent. But sensing a pro-India tilt in the ruler’s attitude, Pakistan allegedly staged an invasion by tribal militias who soon captured vast territories which are now termed as Pakistan occupied Kashmir. The panic-stricken King asked for India’s help which assured him of military help but on the condition that he accede to the Indian dominion. After he agreed, Indian troops were hurriedly air-lifted to the province and the fall of the capital Srinagar was prevented but skirmishes between Indian forces and Pakistan backed militias continued for few months until India sought the intervention of United Nations.
A resolution (47) dated 21 April 1948 passed by UN Commission for India and Pakistan called for immediate ceasefire and demilitarization of the province so that a plebiscite might take place to determine the will of Kashmiri people. The withdrawal of the forces by both sides however never happened and nor the plebiscite because India wanted an asymmetric withdrawal of forces under which Pakistan had to withdraw first on the reason that it was an aggressor. Pakistan did not agree to this and demanded a parity in treatment which of course was rejected by India.
Since then various proposals by subsequent UN supervisors including those by McNaughton and Dixon have been rejected by India and Pakistan under various excuses. Quite ironically India also abhors proposals of arbitration and mediation in this dispute even though it endorses arbitration as a method for settlement of all international disputes in its constitution (Article 51). After imprisoning Sheikh Abdullah (the Prime Minister of Kashmir) in 1953, Indian government fortified the Kashmir Valley to an extent that today it has become the most militarized zone in the world with its streets being under the constant vigil of the armed forces. India Government also equipped its armed forces with such vast and draconian powers (under different legislations like AFSPA etc) not exercised even by the British Army stationed in India during the colonial rule. There have also been allegations by Kashmiri watchdogs that India has deliberately rigged elections in Kashmir and by doing so has denied Kashmiris their democratic rights. Though Kashmir was allowed until now to have its own constitution and flag but the constant intervention by the Central government in the legislative affairs of Jammu and Kashmir is no hidden fact. Time and again State governments in Kashmir have been dismissed at whims and fancies of the central government under varied excuses. Re-elections for the dissolved assemblies have also been delayed for a prolonged time. And now it has been made a Union Territory and will be governed directly by the central government in which Kashmiris will have little say if no say. One should wonder if such a system is unable to work in NCT of Delhi (where there is a face-off between the legislature and Central Government almost on a daily basis) then how it will work in Kashmir where public opinion is already beset with disaffection.
Whether there exists demand of self-determination in Kashmir?
There is no doubt that since 1947, Kashmir has been embroiled in a great unrest with hundreds of civilians and insurgents getting killed annually during face-off with the armed forces stationed there. Separatist movements have also been active in the Kashmir Valley since long and as per official estimates, violence emanating from these movements has killed thousands of individuals. The recent suicide attack in Pulwama which killed over 50 military personals was one amongst series of other such events showing that all is not well in Kashmir as has been claimed by successive governments. Many popular Indian leaders like Jaiprakash Narayan have openly acknowledged the Valley’s disaffection towards India. In the words of Jaiprakash Narayan–
“From all the information I have, 95 percent of Kashmir Muslims do not wish to be or remain Indian citizens. I doubt therefore the wisdom of trying to keep people by force where they do not wish to stay. This cannot but have serious long-term political consequences, though immediately it may suit policy and please public opinion.”
Quite recently even the Indian Governor of Kashmir Satyapal Malik acknowledged that Kashmiris have lost faith in the democratic process as elections in Kashmir have been rigged. Apart from this, various reports of the UN and Human Rights Commissions on forced disappearances, mass executions, rapes and abuses in Kashmir lay bare the claims of normalcy. All these facts strengthen the argument that there is a demand for self-determination in Kashmir through its intensity and scope cannot be ascertained in absence of wider polls to that effect. Moreover, Kashmir has been promised plebiscite by none other than the United Nations.
Whether Kashmir satisfies the parameters of self-determination under International Law?
Self-determination under International law has become a contentious issue these days with great difference between the written law and the practices of the states. Whereas various international agreements and conventions including UN Charter, ICCPR and ICESCR recognise the right to self determination as an invaluable right but in practice states have rarely honoured this commitment on their sweet will and generally frown upon any attempt of self-determination especially external self-determination (also known as extreme/violent self-determination) by any entity under their effective control and dominance. Various international charters and conventions talk about the right of self-determination and recognized it as a customary norm like right erga omnes (right owed to all). Article 1 of the UN Charter envisages Self-Determination as an objective of the United Nations for the strengthening World Peace. Several resolutions of UN including Resolution 1514 of 1960 and Friendly Relations Declarations of 1970 uphold the right of self-determination of people. Friendly Relations Declaration has by far been the most comprehensive articulation of the concept of Self-Determination and casts a positive obligation on every state to promote the principle of self-determination of people. It also casts a negative obligation on every state to refrain from those actions which deprive the people of their right to Self-Determination and freedom. Similarly, two other important international conventions namely ICCPR and ICESCR also talk about this right and provide that all people have the right to self-determination and states which are parties to the covenant have a duty to promote it. Though India is a party to these covenants, it made certain reservations and upheld self-determination only in the decolonization paradigm and also declared that it supports the self-determination of only those people who are under foreign domination and not of a section of people living under sovereign independent states. It is believed that India made these reservations keeping in mind the various secessionist movements on its own soil and especially with regards to the Kashmir issue.
Subjective and Objective analysis- This provides that a group to constitute people must subjectively feel that it is different from the rest of the inhabitants of the mother state and it should also satisfy the objective criteria of uniqueness in terms of its territory, ethnicity, language, culture, language, religion, etc. As is evident from various reports and studies, majority of Kashmiris do feel subjectively different from the rest of India and uniqueness of Kashmir has been recognized officially by the Indian government so much so that Kashmir was allowed until now to have a separate constitution and flag and given greater autonomy than other Indian states. Objectively also the uniqueness of Kashmir in terms of its territory (mountainous terrain), ethnicity (Kashmiri), language (Kashmiri), culture (Kashmiri), religion (pre-dominantly Muslim) is not a disputed fact. Therefore Kashmiris can be said to be fulfilling the subjective and objective criterion of people who can exercise the right to self-determination.
Decolonization Perspective– Under International law demand of self-determination is justified only in the case of decolonization paradigm and in some cases delayed decolonization paradigm. To prove that India is a colonizing power in Kashmir is a difficult task and more so when Kashmiris enjoy same rights and liabilities as rest of the Indians under the law of the land notwithstanding ground realities. Though it is widely believed that Kashmiris don’t want to remain in India or that they want to join Pakistan but in absence of any polling, plebiscite or referendum to that effect it is difficult to ascertain the opinion of the majority. However, there is no denying that many Kashmiris regard India as an occupying force and same can be witnesses in the daily strikes, hartals, bundhs, anti-India sloganeering and stone-pelting on Indian forces stationed in Kashmir all of which has become a routine affair now. Another important fact that raises eyebrows is the deployment of over 600000 Indian Military personals in Kashmir with vast draconian powers. Had public opinion in Kashmir been affectionate towards India, it would not have resorted to these extreme steps and excessive measures.
Territorial Integrity- Uti Possidetis is a Jus Cozens norm in International law and countries value their territorial integrity more than anything else but the moot question here is can a country make the argument of territorial integrity regarding a internationally disputed territory. Can all questions regarding the other most important Jus Cozens norms like Human rights, civil and political liberty be shunted off by the mere claim of Uti-Possidetis? This certainly is not in tune with the spirit of United Nations and various International covenants including ICCPR and ICESCR that majestically uphold the cherished principles of Universal civil and political rights in accordance with the principles of Human Rights and the will of the people. Kashmir is undoubtedly a disputed territory under the annuls of International law and neither India nor Pakistan can ward off the question of its self-determination by the arguments of Uti-Possidetis or territorial integrity. Also, it seems too farcical to claim in this modern liberal and post-modern world that Uti-Possidetis is above Human Rights.
Whether there exists any possibility of the exercise of the right of self-determination in Kashmir?
Now with the abrogation of the special status and internal autonomy of India held Kashmir, there is little hope of anything of that sort happening in the current scenario given that India has time and again refused to budge on its stand that Kashmir is its integral part. And its a ravishing truth of the world history that smaller and weaker political entities under a more powerful and colossal polity have been rarely allowed to secede or broke away from the latter unilaterally even if the latter has been established to be an occupying force. It has also been observed that in many such scenarios, International law fails and hardcore realism takes over the mantle of the International Order as has been seen in the secessionist movements in powerful nations like Russia and China where they have been brutally suppressed and the world community could do little except raising eyebrows. India is also a growing economic and military power with a majoritarian government whose realist and jingoist tendencies are on ascendance and in such scenario there is little hope that it will deal benevolently with those Kashmiris who are disaffectionate towards it. Therefore any attempt by Kashmiris which is perceived hostile by the ruling dispensation would necessarily be rendered futile unless there is a drastic change in the sociopolitical structure of the sub-continent or of Kashmir.
Undoubtedly, it is one of the biggest ironies and hypocrisies of the 20th century that some people who had fought for their freedom with so much fanfare and dramebaazi spared no time in playing with Kashmir’s freedom, unity and dignity once they had purchased their own from their colonial masters. Kashmir deserves better and not just Kashmir, the whole subcontinent needs freedom from rampant socio-economic injustice, subordination, discrimination, exploitation, and corruption and slavery of a few elite castes and classes who have since long held hostage its resources and have mercilessly trampled upon the rights and dignity of others. But given that external self-determination is rarely successful in international arena and almost impossible without the consent of the mother entity that is powerful and brutal, Kashmiris should rather try to secure an effective internal self-determination within the current constitutional framework that benefits all other stakeholders of this dispute rather than making it a zero-sum game. Fragmentation or Balkanisation of this majestic sub-continent will only lead to interference from other foreign powers who can prove more pernicious and hostile as can be witnessed in Afghanistan and the Middle East. They should keep in mind that historically the Indian sub-continent has always clamoured for consolidation under one powerful entity for stability, power, fame, and prosperity. Whenever there has been division, disunity, and discord, it has plunged into deep crisis and a third power has taken the advantage and given nightmares to everyone as was the case during the British occupation. Hence Kashmir or any other entity of the subcontinent with secessionist ambitions should reflect deeply on the totality of circumstances and their viability as an independent nation before taking any extreme step. They should rather try to secure their rights and dignity within the current constitutional dynamics of the sub-continent by collaborating and cooperating with other affected groups and by collectively asserting control over the central authority in case they dislike the ruling dispensation. And in a vast subcontinent like this which is full of great diversity, they would definitely find a lot of sympathizers and hoards of people on their sides if they honestly try and persevere to march together for collective justice and not for fulfillment of narrow self-interests. And this would be much easier for them than seeking clandestine ways to secede and run away from positions of power and responsibility and then plunge into chaos and perpetual conflict. By choosing the narrower approach, they would be achieving no independence but on the contrary inviting other pernicious powers to interfere and meddle into the sub-continental affairs and squeeze its riches, honor, and dignity. And this a time tested old saying that “United we stand and divided we fall.”
As for those who are mad under the inebriating influence of stately/regal power, they should know that this world is but an illusion and is ephemeral as is evident in the demise of one of their own former minister who was so desperate to see this Kashmir moment. And that they shall be held accountable for whatever they do either in this world or in the hereafter or in both- God knows the best. And that there is a difference between the justice of fallible man and that of the infallible Almighty who is all knowing, ever watchful and swift in reckoning.
Blameworthy are those who oppress people and tyrannize upon the land without right. They will have a painful punishment.Al-Quran 42:42