Imagining Kashmir, hereafter
By Dr Abdul Manaan
If one has to get sense of how fast is time running, ask any Kashmiri who has witnessed it all from Balakote bombing to Pakistan and India resuming trade, and then abrupt reversal of the decision, after later illegally and unilaterally annexed Kashmir in 2019.
Let us put things in perspective and see how we are imagining Kashmir in the fast-changing geo-politics of not just South Asia but in the global power battle. It is grass that suffers when elephants fight and that is where Kashmir stands in 2021. But there are cures to mitigate the pain.
UN-designated disputed region
Meeting of the United Nations Security Council after 50 years to discuss Kashmir and India’s unilateral actions of August 5, 2019 defies any arguments Kashmir dispute is dead. It may be dormant but yet not out.
What is the dispute all about — allow Kashmiris across the Line of Control (LoC), within the Jammu and Kashmir (hereafter referred to as Kashmir) territories that existed when Pakistan and India were born as independent sovereign states at the time of British exit from South Asia, leaving behind undecided political future of Kashmir.
At least 21 proposals and resolutions passed since January 1, 1948 resolve that a fair plebiscite where people of the disputed region will decide for themselves. It has not happened and needs no rocket science to understand that India has stood a mountain of Himalayan stature in between Kashmir and end to its occupation.
I am reminded of a statement by Mevlut Cavusoglu, Turkey’s Foreign Minister, who asserted after Azerbaijan won the Nagorno-Karabagh war: “No conflict is frozen. A conflict is a conflict. What is frozen is its solution.”
What are we imagining about Kashmir?
Kashmir is on the brink of genocide, warned Dr. Gregory H. Stanton, Founding President Genocide Watch. He added: “We believe that the Indian government’s actions in Kashmir have been an extreme case of persecution and could very well lead to genocide.”
What has led him to say so about Kashmir.
On August 05, 2019, India’s Hindu radical Interior Minister Amit Shah stood in the parliament and declared the provisions under Articles 370 and 35A of Indian constitution which relate to disputed Kashmir region have been removed.
It was a direct unilateral attack on the disputed nature of the region.
Although the UNSC meetings did not elicit any formal statement in reaction to India’s move, China’s representative at the meeting confessed: UNSC members “think” India, Pakistan should refrain from unilateral action in Kashmir.
First, these provisions under Indian constitution were negotiated by India with a Hindu autocrat who was facing stiff resistance from people in Kashmir at the time of partition. Thus, the so-called Instrument of Accession that India boasts of for annexing the region raises questions than answering one.
India’s position is premised on the legality, validity and finality of this Instrument of Accession.
However, India’s claim to sovereign title over Kashmir has never been recognized and has been rejected by the United Nations (including the Security Council) since 1947, when India first brought its dispute with Pakistan over the territory of Kashmir.
When Indian envoy to UN was questioned about the August 16, 2019 UNSC meeting about Kashmir, he said India and Pakistan abide by Shimla Agreement thus itself admitting Kashmir remains a dispute.
Use of lawfare
Besides a popular resistance movement against India which has mounted a million troops in the world’s most militarized zone, these provisions under Articles 370 and 35A provided a safeguard against attack on identity of Kashmiris through demographic flooding.
But these safeguards were neither guaranteed by Pakistan nor the international community / United Nations. They were mere constitutional matters whose jurisdiction did not exceed Indian borders.
Thus, using the same so-called Instrument of Accession, India has bulldozed these provisions without removing the Articles per se but changing meaning of the content without any resistance from anywhere.
Pakistan has no jurisdiction because it is the matter about and of Indian constitution nor does UN has such an authority to mingle with Indian constitution unless UNSC members intervene.
Barrister Taimur Malik rightly pointed out last month while addressing conference hosted by Legal Forum for Kashmir that despite Indian militarily occupying Kashmir, “it took actions in Kashmir since 1947 using lawfare.”
Under the garb of same Instrument of Accession, India has utilized its own legal framework, derived from its constitution, to devoid Kashmir of features which will win it a plebiscite, if and when it is held.
Through its August 05, 2019 move, India has opened flood gate of what is termed as settler colonialists which will outnumber the natives given the pace of settling them in the disputed region.
After 1926, then autocrat and Hindu ruler Hari Singh allowed only natives of Kashmir to get citizenship, buy land, and compete for public jobs and opportunities. Thus, effectively and officially disallowing foreigners to get voting rights in Kashmir — much like what Malaysia and many Arab countries nowadays.
Despite people from Hindu-majority India making a beeline coming to Kashmir but they could not directly enter the system. Post 1947, India employed its compradors who did its bidding to legalize the military occupation.
In a civilized governing system, provinces or units of the governance structure and a State are uplifted and empowered with more powers or even given autonomous status.
India did the opposite — quite a telling example of 21st colonial power.
It revoked the so-called autonomy and removed the separate citizenship law for Kashmir. Further, it divided it into the so-called union territories of Jammu and Kashmir and Ladakh, which are now directly run from New Delhi through its point men. The two union territories are now governed separately, their resources, man power, financial and other powers have been divided.
The union territory of Jammu and Kashmir has two divisions; Kashmir Valley and Jammu, an area of over 42,000 square kilometers (16,216 square miles) with a population of 12.26 million, which comprises 8.44 million (68.8%) Muslims.
The vast territory of Ladakh, also known as the cold desert, spread over 59,000 sq km (22,780 sq mi) and comprising two districts of Kargil and Leh, houses a tiny population of 274,289. Out of this, Muslims make up 127,296 (46.4%) and Buddhists 108,761 (39.65%).
Under the new system, Kashmir will have the so-called elected assembly with truncated powers. Ladakh will have no legislature.
Unlike past, the separate constitution and the flag for Kashmir have been dissolved.
All the laws passed by Indian parliament are now de facto applicable in the disputed region. The Indian Penal Code has replaced the local Ranbir Penal Code of Jammu and Kashmir to decide criminal cases.
Under the so-called Instrument of Accession, India’s central government controlled foreign affairs, defense, finance and communications — but left other governance matters to provincial representatives. However, ever since presidential order of 1953, these powers were slowly and steadily erased.
The separate citizenship law under Article 35 (A) of the Indian constitution stands null and void.
Now, any Indian citizen from any part of the Hindu-majority country is allowed to enter Kashmir, buy property, apply for a public job and enjoy scholarships and other government benefits.
Under local education law until August 05, 2019, people in Kashmir enjoyed free education from primary to university. It ceases to exist now.
One of the most hated provisions and abused law — the so-called Jammu and Kashmir Public Safety Act 1978 under which Indian police detains Kashmiris without judicial proceedings has not been repealed.
Now the recruitment for bureaucracy is held under laws applicable to centrally administered territories across India.
The more haunting part of the new structure is the Indian forces are at ease settling in the region. Until now, they had to undergo huge bureaucratic hurdles to acquire land for their bases and camps. Those provisions stand removed or mostly eased. India’s Interior or defense Ministries are now fully eligible to allot any piece with no interference by local administration.
Need to revive demilitarization campaign
Recall, demilitarization campaign launched by Syed Ali Geelani in 2009 had figured that Indian forces were occupying more than 28 lakh kanals of land in Kashmir.
India says the new arrangement will boost the economy of the region by integrating it with the rest of the country.
“The issue [not providing land to outside industrialists] had led to unemployment in youths. This unemployment was giving them enough time to take part in activities like stone pelting and separatism movement,” India’s Interior Ministry had said.
“It [new arrangement] will also prove to be good diplomacy to deal with Pakistan over territorial disputes. It will politically give chance to all parties to rule the state and allow its development,” the statement added.
Fast forward to June 2020, India through its administrative council headed by New Delhi’s point man called Lt Governor GC Murmu cleared the proposal to amend the J&K Control of Building Operations Act, 1988 and the J&K Development Act, 1970 for notifying “strategic areas” for use by Indian armed forces and regulating construction through a soc-called “special dispensation”.
“The amendments will pave the way for notifying certain areas as strategic areas in terms of requirements of the armed forces and in such areas, the regulation of construction activity shall be through a special dispensation,” council statement said. “The move is aimed at simplifying the procedures and shall facilitate time-bound development of infrastructure of strategic importance.”
However, latest data by Indian government has showed a fall of nearly 35 million US dollars was measured between 2019 and 2020 in J&K, a period during which the region was put under lockdown after abrogation of Article 370 on August 5, 2019.
Remember India mounted her troops and out Kashmir under military lockdown and snapped all communication of the region with outside world before announcing annexation. The communication lockdown is longest anywhere in the world and termed as digital apartheid by India over Kashmir.
The Kashmir Chamber of Commerce and Industry (KCCI) last year put economic losses in the Kashmir valley since August last year at Rs 40,000 crore. The KCCI’s loss estimate is about 11% of J&K’s economic output.
On what was used as a political leverage by India’s compradors in Kashmir — the Roshni Act brought to legalize unregistered land under use of civilian locals, the Hindu radical groups raised the bogey of jihad that most of the land transferred under the Act was given to Muslims and at low rates. The regime acted but got exposed — Hindus were hit as the numbers show otherwise. Indian authorities out a halt on the move.
This all is being done to affect a demographic change in Kashmir so that result of a possible plebiscite is affected, if and when it is held.
One must of the forget that the local elections held under the military barrel are no alternate to UN sanctioned plebiscite. The latest façade of elections held in Kashmir is anything but does not show will of the people.
Nasir Qadri, who leads Legal Forum for Kashmir, recently told a conference: “To stop the demographic change in Kashmir, Pakistan has no other option than working on ‘advisory opinion’ at International Court of Justice [ICJ].”
Following this mode, said Qadri, Pakistan can raise this particular issue of alleged demographic change before P5 members of UN Security Council and “ask them to refer this issue to ICJ for an advisory opinion.”
“Ultimately, there’s little the indigenous population of Kashmir can do to push back against India’s Hindu-settler-colonial enterprise, as Indian government has essentially criminalized all dissent and seized control of the territory’s political institutions.
“Thus, leaving the fate of millions of Muslims in the hands of the international community, including Pakistan, which can’t afford to turn its back on this looming human rights catastrophe, as locals will not only be subjected to abuse from the Indian security forces but also a radicalized settler population, whose violence is likely to enjoy total impunity,” said CJ Werleman, a journalist and global voice of the oppressed communities.
Kashmir is a theater of international armed conflict. In connection with that armed conflict and in furtherance of India’s occupation and denial of the right to self-determination, Indian military and police personnel have knowingly committed various acts constituting war crimes. Those acts have been documented over the course of decades and include: willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury, extensive destruction and appropriation of property, the willful denial of the right to a fair and regular trial, unlawful confinement, rape or sexual violence and utilizing civilian as “human shields.”
Use China, Russia to win over P5
With critical support provided by China, Pakistan must not lose more time. It must use Chinese leverage and win over P5 at the UNSC to prepare them for an advisory so that the Kashmir case is pushed through the ICJ.
Remember, China singlehandedly cannot help Pakistan in this matter. Russia is an old hand that shadows Kashmir files at the UNSC.
Using the argument of Quad — an alliance of US, India, Japan and Australia against China, and broadly against Russia, Pakistan can convince and rightly so to pull Russia out of India’s influence over any UNSC decision on Kashmir. Make no mistake, it is first time, in almost two decades, Russia-India summit did not happen, courtesy India’s fall into US-led bloc.
One cannot deny had the US opposed, it would have been difficult for passage of all Kashmir-related resolutions at UN and the UNSC. Despite India being its lynchpin this time, Washington can be easily reminded of its human rights values which it teaches world especially in Hong Kong, and Xinjiang.
Diplomacy by Pakistan and its allies will have to take the center-stage along with true representatives of Kashmir as envisioned by the Organization of Islamic Cooperation at its Casablanca summit of 1994 where All Parties Hurriyat Conference was formally accepted as The True Representatives of the Kashmiri people. Time is to revive the APHC and its international stature as bilateral mechanisms have failed Kashmir and Pakistan, too.
The writer is the son of the soil and is pursuing research on Kashmir.