It is really deplorable that the “world’s largest democracy” has chosen to usurp the fundamental political and human rights of hapless Kashmiris in such a cunning way which is not only absolutely against the spirit of democracy but also devoid of constitutionalism and fair-play. Having denied Kashmiris their right to determine their political future for decades, India is now going to take over their territory unlawfully, and against their will. Moreover, India has also bifurcated the IOK in sheer violation of Article 3 of its own Constitution which clearly states that no bill in the Indian Parliament shall be introduce to alter the boundaries, area or name of a state unless such matter is referred to the President by the affected state. Therefore, the miserable Kashmiris are now feeling betrayed, and excluded. An undesirable turn of events has just downgraded the constitutional status of IOK from a semi-autonomous state to an inferior Union Territory to be controlled and governed by the Central Government of India.

As a matter of fact, India’s ‘Mission Kashmir’ has been replete with deceits, lies, trickeries and betrayals. India has been justifying its occupation on Kashmir primarily on the basis of the Instrument of Accession (IOA) of 1947, coupled with its de facto control over IOK. The IOA is, however, a flawed and controversial document. To begin with, the IOA was in serious conflict with the cardinal principle of partition of India whereunder all Muslim majority areas were to constitute part of Pakistan and the Hindu majority areas were to go to India. Secondly, the Maharaja of Kashmir’s ‘right to rule’ had severely crumbled at the time of signing IOA since the people of Kashmir had already revolted against him. He acceded to India with the aim of securing Indian support for his crumbling rule. Only a few months earlier, he had rejected a similar proposal for accession made by the Lord Mountbatten besides signing a standstill agreement with Pakistan.

Thirdly, while determined to retain his sovereignty over state of J&K, the Maharaja conditionally acceded to the dominion of India, allowing India to excise its authority with respect to only matters like defense, external affairs, communication etc. However, after a brief period during which the Maharaja remained just a titular ruler of the state, India abolished his monarchy altogether, giving rise to an absolute Indian rule in state of Jammu and Kashmir. Thus India itself violated the terms of the ‘historic legal document’ from which it has been deriving its legitimacy and justification to stay in Kashmir.

Fourthly, the Governor General of India Lord Mountbatten also conditionally accepted the IOA by remarking, “It is my Government’s wish that as soon as law and order have been restored in Jammu and Kashmir and her soil cleared of the invader the question of the State’s accession should be settled by a reference to the people.” Therefore, IOA was a provisional document which has yet not attained finality since the promised plebiscite has never been held in IOK. Moreover, a number of UNSC resolutions, calling for holding impartial plebiscite in Kashmir, nullifies altogether the legal binding force of this document.

The Supreme Court of India is currently hearing a number of petitions challenging the constitutional validity of the abrogation of special status of IOK. In April 2018, the apex court also delivered an important judgment on the issue of special status of IOK. It said that Article 370 had acquired permanent status through years of existence, making its abrogation impossible. It had already held in the famous 2017 SARFAESI case that Article 370 was “not a temporary provision”. Similarly, in 2015, the High Court in IOK has also ruled that Article 370 of the Indian Constitution, which grants the state a special status, is “permanent” and “beyond amendment, repeal or abrogation”. It further maintained that while acceding to the Dominion of India, Jammu and Kashmir did not merge with it but retained limited sovereignty. India’s August 5 unilateral action is also against the spirit of the 1972 Simla Agreement whereby India and Pakistan pledged to resolve their bilateral disputes, including the Kashmir dispute, through negotiations. Therefore, India was not supposed to unilaterally change the constitutional status quo in IOK.

In contemporary political philosophy, the consent of the individuals in any polity generally forms the basis of the authority of both the state and the government. Therefore, the very political concept of ‘consent of the governed’ provides that the legitimacy of the government and its moral right to use state power is not legal and justified unless consented to by the people over which that political power is exercised. It is the principle that has given rise to the very concept of ‘popular sovereignty’ in many modern democracies. Article 21 of the United Nation’s Universal Declaration of Human rights states that “The will of the people shall be the basis of the authority of government”. Therefore, notwithstanding India’s entire (extra)constitutional maneuvering in IOK since 1947, the volatile Himalayan state will continue to be a disputed territory unless Kashmiris duly consent to accede to India.