The abolishment of article 35A and 370 and integration of disputed territory of Kashmir into the country by Indian parliament is not only a gross violation of international law such as UNSC resolution 39 and 47 but also the breach of bilateral Shimla agreement and the Indian constitution itself. The abolishment of article 35A which protects the inalienable right of citizenry such as “permanent residence” status of native population of Kashmir, is another direct violation of 17 separate UN resolution on “population division” and Geneva convention that protects the demography of a region and socio-political rights of the native community. All these violations of UN charter do not include the torture and other cruel, Inhuman or degrading treatment in Kashmir since India’s independence.
The RSS political wing and the ruling party of India–the BJP tried to abolish the above two articles by using the state’s pillar of judiciary in 2015 and 2018 in Jammu and Kashmir High Court and Indian Supreme Court respectively, but legally it was not possible to abolish these articles as the Indian constitution itself protects the special status of Kashmir in October 2015, the High Court of Jammu and Kashmir ruled that the Article 370 cannot be “abrogated, repealed or even amended.” It explained that the clause (3) of the Article conferred power to the State’s Constituent Assembly to recommend to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, therefore Art.370 has taken a “permanent provision” despite being titled a temporary provision in the Constitution. On 3 April 2018, the Supreme Court of India gave a similar opinion declaring that Art. 370 has acquired a permanent status. It also stated that, since the State Constituent Assembly has ceased to exist, the President of India would not be able to fulfill the mandatory provisions required for its abrogation. What this mean for Pakistan is that it’s not the whole state of India that it has to confront with but only one pillar of Indian democracy–some rough legislative members of the Indian parliament.
Therefore, the political wing of RSS—the BJP, after winning the 2019 election by threshold majority, abolished the clause (2) and clause (3) of the Article 370 by using presidential order. But legally it is also not possible to modify article 370 because the clause (1) of article 370 of Indian constitution clearly articulates that it can only be modified with “consultation of state government” of Kashmir, whereas the clause (3) of article 370 stipulates that executive order by the president of India reserves all right to ceases the article only if “provided with recommendation of the Constituent Assembly of State(JK)”. Since there is no “State Government” in Kashmir nor any “Constituent Assembly” – that was dissolved in 1957 after and presently the state in under governor rule—an entity falls under dominion of India’s federal government not the “state government” of Kashmir, so the measure of cease or modify article 370 by the Indian parliament or the president consequently becomes illegal which can be challenge in Indian Supreme Court and an effective stay order can be secure until a new constituent assembly is formed that then “recommends to the president” in order to cease the article or until State Government of Kashmir is “consulted” in order to modify Art.370.
The central point is that the representatives of Kashmiri population were not only not consulted but put under house arrests before the ceasing from their democratic rights, which Indian constitution given them. Is it not an irony for world biggest democracy? This is indeed state’s tyranny in its utmost form.
History has shown that fascist, ambitious and ideologically driven leaders never undertake international pressure into account. Never did Hitler nor did Mussolini nor will Modi. The ideology in combination with popularity drives their courage to excel. Especially, when they become significantly politically strong within their domestic environment the state institutions becomes jeopardize by their charisma and popularity. Surprisingly, Modi is becoming popular in domestic politics after annexation of disputed territory of Jammu and Kashmir into Indian union—a similar popularity did Hitler secured after the annexation of Czechoslovakia in 1938. Indeed, it is highly likely possibility that in near future the Indian Institutions will be jeopardize. The democratic coup of fascism will overthrow rationality, sanity and democratic balance from within Indian domestic socio-political environment. War becomes inevitable in such circumstances…where it ends? No one knows. Pakistan and India are two nuclear arm neighbors with having Kashmir—a nuclear flash point. It is not just the about Kashmir, it is the about of the region compromising two billion people. The window of regional stability for the world community and sane Indian leaders is closing day after a day as concurrently the BJP-fascist regime gains political prime footings in Indian socio-political environment.
It is not just the duty of Pakistanis but also of every sane world leader to prevent a fascist reborn Modi from jeopardizing peace of the whole region. A stay order from Indian Supreme Court against revoke of article 370 can add weight to halt BJP regime and possibly prevent a destained democratic breakdown from future and uphold democratic principle of division of power—otherwise the court itself maybe destained to be subjugated by the “Fuhrer of East” in near future. Consequently, UN and world powers active role to resolve the dispute of Kashmir peacefully should also be a priority—or they will still wait until two powers are at all-out war? When millions will die, and enough blood is spilled than will they come on a cavalry with high waving banner of liberal principles? To prove what exactly? Will the UN prove to be another League of Nation? It times for everyone to honour their words.
As far as Pakistan is concerned, it needs to maneuver it current foreign policy according to current scenario. For a permanent solution of Kashmir, Pakistan must engage India on every diplomatic front. Rebound, unprecedented, uninterrupted, continues diplomatic attacks on Indian govt that not only undermines Indian legitimacy in Kashmir but also cripple fascist BJP party from within—that ultimately and force them into holding plebiscite. Although Pakistan can file petition and open a trial in ICJ against the abolishment of 35A and 370 by Indian government on grounds of UN resolution 39 and 47, and for the breach of bilateral Shimla agreement. The courts reserve all rights to pass a stay order until the final judgment, just like in the case of Kalbhshan Yadev. But obviously, the ICJ does not have practical jurisdictions, as India may play its sovereignty card and that it is not bound to fallow ICJ judgment, that is why it is equally important for Pakistan is to engage BJP regime domestically—and that will be BJP be more concerned about. While falling to comply to ICJ orders, Pakistan can then use UN/OIC forum to put multiple sanction and possibly oil embargo on India.
1) Move petition in UNSC and ICJ to allow Pakistan to pass humanitarian aid supply into Kashmir, until the unrest stops, on grounds of liberal principle of “humanitarian intervention”. As per UN charter,, its the right of a recognised oppressed nation to call for international aid and its an equal duty of world community to assist them.
2) Get OIC onboard, especially KSA, Turkey and Iran to cooperate and grant special relief packages of Muslim Kashmiris.
3). Open multiple cases against each rough members of Indian parliament in domestic courts of India (through third party) and in International Criminal Court on human right abuses from Gujrat to Kashmir and on each dirty thing they have done in the past such as corruption. The point is to tirelessly engage each rough parliamentarian individually in every legal/diplomatic front and do not sleep in peace until they willingly come on table talks for Kashmir. Form legal desk in each key capital to work to ban these rough leaders from entering the host states on grounds of human rights violations in India, Modi was ban before in US, Pakistan can ban others BJP leaders by using Supreme Court of each host state. UN resolutions are international binding laws that are ment to be ratified in each state’s constitution.
4) Internationalize the issue in every NGO/INGO, fund them if
needed with the financial help from Gulf countries and China. Fund every news
agency, NGO/INGO, put a desk of “Voices of Kashmiris” in every crossroad of
each main city of OIC member states. From Taksim square to Downtown Dubai,
campaign, peaceful protests, record people say, by using their passport/ID
(basically an informal referendum in every corner of world) than use that in
UN/OIC and every other forum.
5) Pressure/convinces Trump administration to act as a mediator until plebiscite is held peacefully and in return give Americans a window from Afghanistan or they can stay at square one like people in Kashmir.
6) Make some calls to Pakistan High commission in Delhi to hire a third party to get a stay order from Indian supreme court, that can make the sentiments of Kashmiri population heard in the court room. I-e Mishaal Malik.
Fighting India a diplomatic war in combination with legal and cyber can not only get Kashmiris an immediate stay order but also possibly can liberate Kashmir from BJP’s tyrannical fascist rule.
|Zohaib Tariq Roots IVY University Islamabad BSc (Hons) IR & Politics, London School of Economics University of London SRN 170350084|