The High Court of Jammu and Kashmir (Indian occupied) in a landmark judgment recently held that article 370 of the Indian constitution was a permanent provision and could not be abrogated, repealed or even amended. It further ruled that AJ&K retained limited sovereignty and did not merge with the Dominion of India after partition in 1947. It is a very significant development that not only negates the Indian claims of Kashmir being an integral part of India but reconfirms the status of the state as a disputed territory. Article 370 of the Constitution grants special autonomous status to the state of Jammu and Kashmir. The incorporation of this article in the Indian constitution and its existence till today is an irrefutable affirmation of the fact that Kashmir was not part of the Indian union like other states.
The BJP in its election manifesto for Indian General Elections 2014 made a pledge to integrate the State of Jammu and Kashmir with the Union of India and accordingly a move was initiated by BJP in connivance with RSS to have the Article 370 of the Indian constitution repealed. It may be pertinent to mention that article 370 was added in the Indian constitution in the ‘Temporary and Transitional Provisions of the Constitution’s part XXI.
The decision of the JK High Court has effectively blocked the attempts of the Modi government to repeal article 370 of the constitution and the formal and legal incorporation of the state into the India Union. The fact that JK and India have separate constitutions is also an irrefutable testimony to the effect that India and Kashmir are two separate states, because a single state cannot have two constitutions at the same time.
The Indian stance on Kashmir being integral part of India actually has no moral, legal or constitutional basis. The people of Kashmir did not accept the so-called instrument of accession singed between the ruler of Kashmir and India and immediately revolted against it which amply demonstrated opposition to the coerced accession of the state to India. When India took the matter to UN in the wake of war between the two countries, the UN passed 23 resolutions recommending the settlement of the question of accession through a plebiscite under the auspices of the UN. Both India and Pakistan accepted these resolutions. India, though publicly accepted its obligations under the UN resolutions and Nehru in his correspondence with Jinnah repeatedly reiterated resolution of Kashmir dispute through a plebiscite but it never took necessary measures to facilitate the creation of a congenial environment for holding the plebiscite. It did not cooperate with UNICEF in regards to demilitarisation of the state and the UNICEF Chief Sir Owen Dixon resigned in protest against the Indian attitude.
Instead of fulfilling its obligation under the UN resolutions, India tried to circumvent them. It had a resolution passed by the General Council of Jammu and Kashmir and Kashmir National Conference calling for elections to the constituent assembly and settling the question of accession of Kashmir. The UN through its resolution number 91 immediately rejected the move quashing the notion that the question of accession of Kashmir could be disposed of through any arrangement other than the one provided by the UN resolutions on the issue.
However, undeterred by UN resolutions it held elections to the constituent assembly which passed a constitution for AJK and announced the accession of whole of Kashmir to India. Preamble and Article 3 of Part 2 of the Constitution of Jammu and Kashmir adopted on 17 November 1956 state that the state of Jammu and Kashmir shall be an integral part of the Union The UN again rejected the Indian move through its resolution number 122. However India refused to budge from its newly contrived stance on the issue and continued with its oppressive policies against the people of occupied Kashmir maintaining hostile posture towards Pakistan.
In the backdrop of the 1971 war the two countries signed Simla Agreement in 1972 reiterating the settlement of all disputes between them including Kashmir through bilateral negotiations. The agreement unequivocally affirmed that “The principles and purposes of the Charter of United Nations shall govern relations between the two countries”. It also bound the two sides to respect the line of control and they undertook to refrain from the threat or the use of force in violation of that line.
But contrary to the mechanism agreed under the agreement and the measures that were envisaged to resolve the disputes between them, India has failed to show sincerity in promoting the bilateral dialogue. It has been violating the ceasefire along the LOC which has intensified since the induction of Modi government. During the current year only, India committed 400 violations of LOC killing 36 Pakistanis. Indian RAW is involved in terrorist acts in Pakistan and fomenting insurgency in Balochistan. In connivance with the Afghan intelligence NDS it has been sponsoring across the border attacks by TTP operatives based in Afghanistan, particularly during Karzai regime.
Modi government has also spurned peace initiatives by the PML (N) government and opted for a confrontation-driven relations between the two countries. Under the circumstances Pakistan perforce had to sensitise the world and the US about Indian intentions, its involvement in terrorist acts in Pakistan and attempts to destabilise it. Pakistan has presented three dossiers to the UN and US about it and Prime Minister Nawaz Sharif in his dialogue with President Obama is also understood to have taken up the issue. This diplomatic offensive seems to have produced tangible results as in the Joint statement issued after Obama-Sharif dialogue, Kashmir has been acknowledged as an outstanding dispute between the two countries and a need has been stressed for them to engage in a resilient dialogue process aimed at resolving all outstanding issues including Kashmir, through dialogue and working together to address mutual concerns regarding terrorism. The mention of mutual concerns on terrorism clearly means that US is now also convinced about Indian machinations and instead of resorting to one-sided sermon to Pakistan to punish the perpetrators of Mumbai attacks, as it has been doing in the past, it has now asked both sides to allay each other’s concerns on the issue of terrorism.
Pakistan, does not want confrontation with India and firmly believes that dialogue is the only option to resolve the Kashmir issue. Prime Minister Nawaz Sharif even presented a four-point formula in his UN address as a way forward which regrettably was readily rejected by India. What the Modi government needs to realise is that peace and progress in India and Pakistan as well as the region is inextricably linked to the resolution of Kashmir dispute and normalization of relations between the two countries. The world recognises this ultimate reality. The sooner this reality sinks in minds of the Indian leadership the better.