Understanding the Kashmir dispute

August 19, 2019

For the last three decades, the mayhem in Indian-held Kashmir continues to define Indo-Pak policies and our perception of regional politics in South Asia. The Kashmiri people have continued to...

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For the last three decades, the mayhem in Indian-held Kashmir (IHK) continues to define Indo-Pak policies and our perception of regional politics in South Asia. The Kashmiri people have continued to suffer due to the conflict.

Indo-Pak talks over the Kashmir dispute could never come to fruition as they lacked political will, vision and ownership without the involvement of the people of Kashmir as key stakeholders in the resolution of the dispute. The repression of the Kashmiris has now reached another extreme with India moving to revoke the special status of Jammu and Kashmir under its control.

On August 5, 2019, Indian Home Minister Amit Shah submitted a bill in the Rajya Sabha which proposed to divide IHK into two separate union territories – Jammu and Kashmir, and Ladakh. Acting upon the bill through a unanimous agreement, India President Ram Nath Kovind issued a constitutional order on the same day, which not only revoked the 1954 order but pronounced that all the provisions of the Indian constitution would be applicable to Jammu and Kashmir as an integral part of the Indian union. When the order was passed in both houses of the Indian parliament, the president of India then issued an additional order on August 6 with the proclamation that all the clauses of Article 370 would no longer exist. Subsequently, the Jammu and Kashmir Reorganization Bill was also passed in parliament.

Article 370 of the Indian constitution gave a special status to Jammu and Kashmir, which included allowing the state to have a separate constitution, a unique official flag and internal autonomy over the administration of state affairs. Article 370 in Part XXI of the Indian constitution outlined the legal framework of temporary, transitional and special provisions to the territory till the resolution of the dispute. Under this constitutional provision, the Constituent Assembly of Jammu and Kashmir was fully empowered to recommend the relevant articles of the Indian constitution that it deemed fit to be applicable in governing the autonomous state or to abrogate Article 370 altogether.

In 1954, a presidential order was issued in consultation with the then Constituent Assembly of Jammu and Kashmir which specified the articles of the Indian constitution which were relevant and applicable to the state. However the Constituent Assembly of the state of Jammu and Kashmir ceased to exist without making any recommendations for the abrogation of Article 370; the article was, therefore, considered to have become a permanent feature of the Indian constitution.

Article 370, in combination with Article 35-A of the Indian constitution, defined that the residents or subjects of the state of Jammu and Kashmir would be governed through a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, in contradistinction to the mainstream laws applicable to a citizen of other Indian states. As a result of this provision, Indian citizens from other states could not purchase land or property in Jammu and Kashmir.

Much before granting the special status in 1954, Jawaharlal Nehru had made at least 14 commitments, stating that the future of Kashmir was going to be decided finally by the goodwill and pleasure of its people. In one of her comprehensive articles on IHK in 'The Hindu', on Nov 28, 2010 Arundhati Roy quoted former Nehru’s telegrams to his Pakistani counterpart, his addresses to the nation and statements in parliament and the UN Security Council.

These quotes are important to understand the interpretation of the Kashmir dispute by the early political leadership in India. In his telegram to the then prime minister of Pakistan on October 27, 1947 Nehru said, “I should like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the state to accede to India. Our view, which we have repeatedly made public, is that the question of accession in any disputed territory or state must be decided in accordance with [the] wishes of [the] people and we adhere to this view.”

In his broadcast to the nation over All India Radio on November 2, 1947, Nehru said, “We are anxious not to finalize anything in a moment of crisis and without the fullest opportunity to be given to the people of Kashmir to have their say. It is for them ultimately to decide – and let me make it clear that it has been our policy that where there is a dispute about the accession of a state to either Dominion, the accession must be made by the people of that state. It is in accordance with this policy that we have added a proviso to the Instrument of Accession of Kashmir.”

In another broadcast to the nation on November 3, 1947, Nehru said, “We have declared that the fate of Kashmir is ultimately to be decided by the people. That pledge we have given not only to the people of Kashmir and to the world. We will not and cannot back out of it.”

In his press conference in London on January 16, 1951, as reported by the daily ‘Statesman’ on January 18, 1951, Nehru stated, “India has repeatedly offered to work with the United Nations reasonable safeguards to enable the people of Kashmir to express their will and is always ready to do so. We have always right from the beginning accepted the idea of the Kashmir people deciding their fate by referendum or plebiscite. In fact, this was our proposal long before the United Nations came into the picture. Ultimately, the final decision of the settlement, which must come, has first of all to be made basically by the people of Kashmir and secondly, as between Pakistan and India directly. Of course it must be remembered that we (India and Pakistan) have reached a great deal of agreement already. What I mean is that many basic features have been thrashed out. We all agreed that it is the people of Kashmir who must decide for themselves about their future externally or internally. It is an obvious fact that even without our agreement no country is going to hold on to Kashmir against the will of the Kashmiris.”

The Modi government has to erase the whole history of Kashmir dispute to create a fascist political version of the dispute which will be the last nail in the coffin of India's so-called secular democracy.

The writer is a social development and policy adviser, and a freelance columnist based in Islamabad.

Email: ahnihalyahoo.com

Twitter: AmirHussain76

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