The region of Jammu and Kashmir is currently under India’s illegal occupation. The Kashmir dispute traces its roots well before the 1947 partition of the Indian Subcontinent. However, post-1947, the Kashmir region is identified as a territorial dispute between Pakistan and India. The region of IIOJ&K carries within it harrowing tales of gross human rights abuses, high militarization, extrajudicial killings, rapes, tortures, and enforced disappearances. In continuation of its oppressive polices, on 5th August 2019, the Indian State revoked the special status of IIOJ&K granted to it through Article 370 of the Indian Constitution. This move dismantled the thin autonomy granted to IIOJ&K. Following the revocation of Article 370, IIOJ&K was placed under a lockdown- composing of media blackout, increased militarization, restriction of movement, unbridled crackdowns and unchecked human rights violation. Most recently, Indian Government is seeking delimitation of IIOJK as means to suppress political rights of the local population.
The Article 370 served as the basis for IIOJ&K’s disputed accession to India. The Article came into effect in 1949, allowing IIOJ&K to draft its own laws except for in matters related to defense, communication and foreign affairs. The Article enabled IIOJ&K to establish its separate constitution along with a separate flag. Article 35-A came into effect through a Presidential order in 1954, it gave IIOJ&K the right to preserve its demography by defining its permanent residents by preventing nonresident settlements. Article 35A was introduced through a presidential order in 1954 to continue the old provisions of the territory regulations under Article 370 of the Indian constitution. A core tenant of BJP election campaigning in 2014 revolved around the revisionist notions of ‘Akhund Bharat’ and revocation of Article(s) 370 and 35-A- a move which finally materialized on 5th August,2019. The abrogation of the articles not only denies the Kashmiri’s of IIOJ&K their thin autonomy, but also enables settlers to acquire land in the region and transform the regions demography, by titling the favor against Muslim majority areas. The Article 370 offered a special status to the region of IIOJ&K under the “Temporary, Transitional and Special Provisions” of the Indian Constitution. The Constituent Assembly of IIOJ&K was given the mandate to determine what sections of the Indian Constitution would apply to IIOJ&K and determine the fate of Article 370. However, the Constituent Assembly dissolved itself in 1957- without calling for the abrogation of Article 370. Since then, the Article 370 has been seen as a permanent feature of the Indian Constitution. Pro-BJP voices claim that the abrogation of Article 370 does not require concurrence of the state constituent assembly. However, in 2015, the High Court of IIOJ&K in its ruling stated that Article 370 cannot be abrogated, repealed or amended. While in 2018, the Supreme Court of India opined that Article 370 has attained a permanent status in the Indian Constitution. These legal rulings indicate that India’s 5th August, 2019 Presidential Order to revoke Article 370 stands in violation of its own constitutional rulings. Moreover, the disputed Instrument of Accession- which India views as sacrosanct to justify its occupation of J&K, also states that the state of IIOJ&K cannot be compelled to accept the Constitution of India. The Article 370 was not meant to be revoked unilaterally especially without the consent of the people of IIOJK. Legal experts opine that the slow erosion of Article 370 was underway since 1957, as India made multiple provisions of the Constitution of India applicable to Jammu and Kashmir in the absence of the State Constituent Assembly. In August 2019, another important Act was enacted by the Indian Parliament, the Jammu and Kashmir Reorganization Act, 2019. Through this act the State of Jammu and Kashmir was divided into two union territories- The Union Territory of Jammu and Kashmir and Union Territory of Ladakh, this paved way for the recent delimitation of new constituencies in the region.
According to Indian legal expert Faizan Mustafa, the Instrument of Accession itself can be seen as a pact between two sovereign states- thereby giving the Instrument the character of an international treaty. Therefore, any unilateral changes to that treaty may well place J&K in its pre-agreement status as a sovereign state. In 1948, India referred the Kashmir dispute to United Nations, which culminated in shape of UN Security Council Resolution 47, calling for a plebiscite based on the will of the Kashmiri people. India recurrently dilutes the directives of the UN resolution by stating that as per the Simla Agreement, India and Pakistan should seek bilateral resolution of disputes. Pakistan’s concerns regarding the abject human right violations in IIOJ&K are thus shrugged off by India as ‘India’s internal matter’. However, two important factors are overlooked by India while terming its violations in IIOJK as an ‘internal matter’. The first is that right to self-determination is an established principle under International Law. International law recognizes both external and internal right to self-determination which under external situation applies to circumstances in which a community is oppressed or the central government does not legitimately represent the group of people it controls. While internal self-determination grants communities to choose their own socio-political systems. Moreover, even if India regards Kashmir as an ‘internal matter’ it is still failing on the global commitment of Responsibility to Protect, a global commitment which Indian Government shies from embracing. The Responsibility to Protect calls governments to prevent its populations from mass atrocities such as genocide, war crimes, ethnic cleansing and other crimes against humanity. Secondly, even the 1972 Simla Agreement states that both countries- Pakistan and India are to resolve their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Neither party shall unilaterally alter a situation which could be detrimental to peaceful relations. The abrogation of Article 370 thus violations the spirit of the Simla Agreement, especially since the Agreement makes a clear reference to the status of IIOJ&K and acknowledges that the dispute awaits a final settlement and that neither side should unilaterally alter the situation.
Secondly, even the 1972 Simla Agreement states that both countries- Pakistan and India are to resolve their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them.
In May 2022, the Indian Delimitation Commission finalized a new plan for the delimitation of new constituencies in IIOJ&K. In regards to the Union Territory of Jammu and Kashmir, the commission has proposed increase in seats in Jammu Division from 37 to 43. While the seats in Kashmir Valley have been increased from 46 to 47- the Hindu dominated Jammu region has received more seats relative its total population. Moreover, the new seat carved in Kashmir Valley is in frontier Kupwara district, which too is dominated by BJP ally. The seat division is indicative of BJP’s intend to empower Hindu dominated regions of IIOJ&K in order to emerge as dominant political party in the disputed region in the upcoming elections.
Since the abrogation of Article 370, Pakistan has repeatedly expressed its concerns over Indian violations in IIOJ&K and raised the issue at international platforms. However, it is imperative that the global community pay heed to the evolving situation in IIOJ&K and support Kashmiri right to self-determination in light of the UN resolution.
