Deriving Held Kashmir of status as a state violates a raft of obligations
History speaks truth; our extensive campaign on abrogated statehood of occupied Jammu and Kashmir is like beating around the bush. According to renowned Indian jurist A.G. Noorani, “The Indian government has over the past 70 years played a part in the systematic covert erosion of J&K’s protections with 47 presidential orders that extended the Indian constitution over the region without any concurrent consent of the State of J&K”. This is affirmed by Sumantra Bose who describes the 1954 Presidential Order and the ones that followed as “the end for the Article 370” deeming it “effectively… dead in letter and in spirit since that time”
The recent move to issue domicile certificates to thousands of retired Indian army personnel clearly indicates the malicious intentions of the Indian government towards Jammu and Kashmir and suggests even worse days for the residents of Jammu and Kashmir who have been under siege for more than a year now
It is important to understand the historic evolution of the issue. The State of Jammu and Kashmir acceded to India through the Instrument of Accession. According to Clause 4 of the Instrument of Accession signed on October 26, 1947, “The State of Jammu and Kashmir accedes to the Dominion on India on the assurance that if an agreement is made between the Dominion and the State of any law of Dominion Legislature shall be exercised by the State of J&K only.” Clause 5 says, “The terms of this instrument shall not be varied by any amendment unless accepted by the State of J&K.” Clause 6 of the instrument says, “Nothing shall empower the Dominion Legislature to make any law for the State of J&K authorising the compulsory acquisition of land for any purpose.” Clause 7 of the Instrument says, “Nothing shall commit in any way to acceptance of any future Constitution of India.” Clause 9 concludes the document, “Any reference in this Instrument to the Ruler of the State of J&K is to be construed as including a reference to successors.”
Hereditary State Subject Order 1927 defined the ‘Peoples of Kashmir’ as ‘State subjects’, a type of citizenship with the right to government office and land ownership. These rights were exclusively given to Kashmiri people and, thus, the differentiation was established between state subjects and non-state subjects, and the latter were excluded from such rights. The Instrument of Accession and the Delhi Agreement of 1952 granted special autonomy to the State of Jammu and Kashmir. The former gave Jammu and Kashmir autonomy except in the areas of defence, communications and foreign affairs while the latter gave the Kashmiri people of Jammu and Kashmir the exclusive rights of ‘permanent residency’, buying and selling of property as well as eligibility for jobs within the region. India’s J&K Reorganisation Order 2020 defines new domicile laws which will replace the power vested in Jammu and Kashmir.
According to scholars and legal experts, it is India’s attempt to demographically change the Muslim-majority region, amounting to a crime against humanity, a crime of aggression and a war crime under Article 8(2)(b)(viii) of the Rome Statute. Article 370 allowed the Indian Parliament to legislate only in the matters limited to the areas specified in the Instrument of Accession. All new laws would be subject to the concurrent consent of the Jammu and Kashmir Constituent Assembly. Article 35A allowed the Jammu and Kashmir legislature to define their own ‘permanent residence’, a similar legal notion as the ‘state subject’, which stood replaced in 1954 through a Presidential Order. Revoking Articles 370A and 35A is a material breach of the Instrument of Accession, Delhi Agreement 1952, the Constituent Assembly of Jammu and Kashmir, and the resolutions of UN Security Council.
India, being a so-called democracy, never recognized even democratically elected representatives of Jammu and Kashmir whenever institutional manoeuvring was the objective. They deliberately dissolved professed representative assemblies in 1957 and 2018 before institutional amendments and thus criminally denied the right of Kashmiri people by avoiding concurrent consent of even the representative assembly of Jammu and Kashmir which has intentionally replaced the Constituent Assembly of the State. Intentions and the mindset of Indian policymakers is evident by such glaring manipulations of constitutional interventions through illegal means by the dissolution of the representative assembly of the state of any kind, thus violating India’s own constitutional procedures.
Hasnain Masoodi, an Indian parliamentarian from south Kashmir and a former judge, said Delhi’s decision to revoke the status was unilateral and a “massive assault on the identity and autonomy of the state. We were an independent country 70 years ago, we have a history of 5,000 years and suddenly we have been reduced to a municipality. Everyone has a sense of bitterness. There is a sense of injustice, disillusionment and humiliation.” Syed Babar, a lawyer based in Kashmir’s main city Srinagar, said Kashmir’s transformation into a union territory reflected “a political holocaust inflicted on the people. It is political betrayal and beginning of an era where violence as an argument will have justification, which is indeed unfortunate.”
The new domicile laws introduced for Kashmir will replace the powers vested by the abrogated Article 35A for the state to define its own ‘Permanent Residence’, which is an obvious violation of the Instrument of Accession. Citizenship definition will now flow by the direction of the Indian government under the new rules upon the issuance of a ‘Domicile Certificate’ (DC), which clearly indicates mala fide of Indian government to alter the demography of Jammu and Kashmir. It is so blatant to allow everyone to apply for the DC to demographically change the Muslim majority Jammu and Kashmir. Entitlement to a DC is usually based on your birth certificate: however, the recent move to issue domicile certificates to thousands of retired Indian army personnel clearly indicates the malicious intentions of the Indian government towards Jammu and Kashmir and suggests even worse days for the residents of Jammu and Kashmir who have been under siege for more than a year now. The response of all nations around the globe is indeed tragic to resolve the decades-long human crisis of Jammu and Kashmir. Nevertheless, a poem in a recently released video does present the pain and sufferings of the people of Jammu and Kashmir:
Which story can I tell?
Which pain can I explain?
Everyday of mine is the same
For my share is only shame
Kashmir is my name
Death is my fame
Massacre again and again
Suffering here is my sight
For dignity is my fight
Torture endless torture
Kashmir is my name
Dr Abdus Sattar Abbasi
The writer is Associate Professor of Management Sciences and head, Center of Islamic Finance, COMSATS University Islamabad, Lahore Campus