Indian Supreme Court sees absorption of Held Kashmir as illegal

The Modi government is ignoring the SC

The region of Jammu and Kashmir has been marred by a history of conflict, with the issue of Indian aggression casting a long shadow over its past and present. The complex and contentious relationship between India and the people of Jammu and Kashmir has had profound consequences on the region’s political landscape, social fabric, and international relations.

The seeds of Indian aggression in Jammu and Kashmir were sown during the partition of India in 1947. As the Subcontinent gained independence from British colonial rule, the princely states were given the choice to accede to either India or Pakistan based on their geographical and demographic realities.

The princely state of Jammu and Kashmir, under Maharaja Hari Singh, was predominantly Muslim but ruled by a Hindu monarch. The decision to accede to either India or Pakistan was met with uncertainty and tension. Amidst this uncertainty, Maharaja Hari Singh signed the Instrument of Accession with India in October 1947, seeking military assistance against tribal militias and forces from Pakistan that had invaded the region.

India’s intervention, however, was met with resistance from local Kashmiri leaders who sought a more democratic and inclusive approach to determining the region’s future. The conflict escalated into the first Indo-Pakistani war over Kashmir, leading to a de facto border known as the Line of Control (LoC) dividing the region between Indian-administered Occupied Jammu and Kashmir and Pakistan-administered Azad Jammu and Kashmir. This division resulted in a complex territorial and political dispute that has persisted for decades.

Indian aggression in Jammu and Kashmir has been accompanied by human rights concerns, with allegations of extrajudicial killings, disappearances, arbitrary detentions, and excessive use of force by Indian security forces. The Armed Forces Special Powers Act (AFSPA) grants Indian security forces wide-ranging powers in the region, and it has been often criticized for enabling impunity and inhibiting accountability. These allegations have drawn international attention and criticism from human rights organizations, putting pressure on India to address these concerns and ensure the protection of civilians in the conflict zone.

The issue of Indian aggression in Jammu and Kashmir has not only strained relations between India and Pakistan but has also impacted the broader geopolitical landscape of South Asia. The two countries have fought several wars and skirmishes over the region, with the potential for armed conflict always looming. Efforts by international actors, including the UN, to mediate and find a peaceful resolution have faced challenges due to Indian stubbornness.

As the international community watches and calls for peaceful resolutions, it is clear that the issue of Jammu and Kashmir remains a critical factor in shaping the political and social dynamics of the region.

On 5 August 2019, India made a controversial decision that sent shockwaves worldwide. The Indian government, led by Prime Minister Narendra Modi, announced the abrogation of Article 370 of the Indian Constitution, revoking the special autonomous status of Jammu and Kashmir. This marked a significant turning point in the region’s political landscape, sparking debates and discussions on its implications for the people of Jammu and Kashmir, India’s federal structure, and its global relations. Article 370 was a provision in the Indian Constitution that granted a special status to the state of Jammu and Kashmir. This special status allowed it its own constitution, autonomy over internal matters except defense, foreign affairs, and communications, and a separate set of laws that governed various aspects of the state’s affairs. It was a unique arrangement aiming to respect the cultural, religious, and political diversity of the region. The abrogation was framed allegedly by the Modi government to merge Jammu and Kashmir in India. Critics saw it as a violation of the unique identity of Jammu and Kashmir and a threat to its demographic and cultural fabric.

The immediate aftermath saw significant changes. The state was reorganized into two union territories– Jammu and Kashmir, and Ladakh. The removal of Article 370 resulted in the loss of special autonomy. While the Indian government promised economic development, investment, and opportunities, there were concerns about the communication blackout, restrictions on movement, and human rights violations following the decision. These concerns sparked debates on the balance between security measures and fundamental rights. The abrogation of Article 370 had broader geopolitical implications. It led to tensions between India and Pakistan. Pakistan criticized the move, and the relations between the two nuclear-armed neighbours further deteriorated, resulting in increased military activities along the LoC.

Article 35A, a provision enshrined in the Indian Constitution, held a special place in the context of Jammu and Kashmir until its abrogation in 2019. Article 35A was added to the Indian Constitution through a Presidential Order in 1954, effectively granting the state government of Jammu and Kashmir the authority to define who qualified as a “permanent resident” of the State. These permanent residents were entitled to certain rights and privileges, including the right to own property, access government jobs, and avail of social benefits. Supporters of Article 35A argued that it was a vital safeguard for the unique identity and cultural heritage of Jammu and Kashmir. They believed that the provision protected the region’s demographics and preserved its distinct character by preventing non-residents from acquiring property or benefiting from employment opportunities. For many residents of Jammu and Kashmir, Article 35A represented a symbol of the special autonomy that the state enjoyed within the Indian Union. It was seen as a measure to protect the region’s interests in the face of integration.

The recent developments from the Indian Supreme Court are an eye opener for India and the world. India should refrain from changing the special status of Jammu and Kashmir. It’s the need of time for the world to force India to give the right of self determination to Kashmiris under UN regulations and stop violating human rights in Kashmir.

Article 35A faced challenges over the years, with petitions questioning its constitutionality. The abrogation of Article 370 in 2019, which granted special autonomy to Jammu and Kashmir, also led to the nullification of Article 35A. This move was met with a range of reactions, including support from those who believed that it would promote greater integration and equal rights across the nation, and criticism from those who saw it as an erosion of the region’s distinct identity.

The abrogation of Article 35A led to significant changes in Jammu and Kashmir’s legal and administrative landscape. The region was reorganized into two union territories – Jammu and Kashmir, and Ladakh. The decision sparked debates on the balance between integration and preservation of identity, and raised questions about the future trajectory of the region’s socio-political and economic development. Article 35A was a provision that evoked strong emotions and divergent viewpoints in the context of Jammu and Kashmir. Its abrogation marked a turning point in the region’s history, leaving a lasting impact on its relationship with the Indian Union, its identity, and its aspirations for the future.

Recently, An Indian Supreme Court bench has asked the Narendra Modi-led government about the time needed to restore statehood of occupied Jammu and Kashmir as enshrined in the country’s constitution. The court said this after the incumbent government told it the bifurcation of Indian Illegally Occupied Jammu and Kashmir into UTs was “temporary”. The Indian top court was hearing a batch of petitions that challenged the abrogation of Article 370 in the Indian Constitution in Indian-Occupied Kashmir. More than 20 petitions were filed questioning the constitutional validity of the Indian government’s August 2019 decision to abrogate Article 370.

The Modi-led government stripped Kashmiris of the special autonomy they had for seven decades in the Indian Constitution through a rushed presidential order on 5 August 2019, prompting condemnations from Pakistan and political leaders in India. Petitioners have claimed that constitutional provisions were violated while making the decision– a claim which has been denied by the ruling party members.

The repealing of Article 370 of the constitution allowed people from the rest of India to have the right to acquire property in occupied Kashmir and settle there permanently. Solicitor General of India Tushar Mehta contended that any change in the Constitution that brought everyone at par “can never be faulted”. He defended the government’s decision to revoke the special status of Held Kashmir.

The verdict said that the word “fraternity” has to be given effective meaning, Mehta added. The Indian solicitor general demanded that the law in question should be treated as permanent. “This argument came up first in the Madharao Scindia case after the government withdrew the ‘privy purses’,” he said. The central government exercised its powers, he argued and added that since ‘Princely states’ do not exist any longer the privy purses also cease to exist. Jammu and Kashmir as union territory is not a permanent feature. However, Ladakh would remain a UT. We will make a statement on this in detail and AG and I will visit the government officials and make a statement,” Mehta said.

Attorney General R Venkatramani told the court that Article 370 was “nothing but the finality of integration” of Indian-Occupied Kashmir into the union of India. Mehta informed the court that a “positive” statement on the restoration of Indian-Occupied Kashmir’s status was likely by August 31 after a meeting at the highest level. The apex court remarked that restoration of democracy was important after the arguments of the solicitor general. Chief Justice of India DY Chandrachud observed that fundamental rights of equality, liberty to practice profession in any part of the country and others were virtually taken away by enacting Article 35A.

During the hearing of the illegal revocation of the special status of Occupied Kashmir in the Indian Supreme Court, the Indian government did not give any time frame while avoiding the restoration of the statehood of Occupied Kashmir in the court. In the Supreme Court, the Indian public advocate Tushar Mehta, calling for the improvement of the situation in Occupied Kashmir, said that the government is ready to hold state elections in the occupied valley. Responding to the public prosecutor, the petitioner’s lawyer Kapil Sibal said that the government should not make a mockery of democracy, if Article 144 is implemented in Kashmir and five thousand people are detained and the internet is shut down, how can the situation improve?. A 5-member bench headed by the Chief Justice of India is hearing the case on a daily basis.

The recent developments from the Indian Supreme Court are an eye opener for India and the world. India should refrain from changing the special status of Jammu and Kashmir. It’s the need of time for the world to force India to give the right of self determination to Kashmiris under UN regulations and stop violating human rights in Kashmir.

Abdul Basit Alvi
Abdul Basit Alvi
The writer is a freelance columnist


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