THE Supreme Court of India announced its verdict on Article 370? The decision was not unexpected for the Kashmiri people because the courts of India have always taken decisions of the will of the Government of India in the case of Kashmiris. In the recent past, be it the decision of the judicial killing of Afzal Gaur Shaheed or the pending writs of habeas corpus after August 2019, Indian courts have committed serious violations not only of international law but also of their own law and constitution. The people of Occupied Jammu and Kashmir have never recognized the Indian Constitution and sovereignty.
Their struggle is for independence and the right of self-determination from India. The main reason for the protest of the Kashmiri people against the Indian actions of 5 August 2019, and its ratification by the Supreme Court is that these measures are aimed at changing the religious and social demography of Occupied Kashmir. The statehood of Occupied Jammu and Kashmir was abolished and it was divided into two parts. India has changed the state subject law in force since 1927 to not only settle Indians in Kashmir but also bring in and adjust Indians in government jobs, businesses and industries. Kashmiri language, civilization and culture are being destroyed
The decision of the Supreme Court of India is a collection of contradictions. The whole world knows that the whole process of the Jammu and Kashmir Reorganization Act 2019 is based on malice and the Supreme Court not understanding that malice is the biggest malice. Under a systematic plan, Governor’s rule was imposed in Occupied Kashmir, the assembly was dissolved, then the presidential rule was imposed and then Article 370 was changed under the guise of this. The Supreme Court made a joke not only of the Constitution of India but also of justice. There was a case in the court to restore the statehood of Jammu and Kashmir, which also included Ladakh but the court ignored the historical and legal facts and declared the solicitor general’s assurance as a decision. The status of occupied Jammu and Kashmir was restored as a state but Ladakh was separated.
During the pendency of this case on 6 December 2023 Indian Govt, introduced two important pieces of legislation regarding Jammu and Kashmir Reorganisation (Amendment) Bill, 2023, which aims to amend the Jammu and Kashmir Reorganisation Act, 2019, and the Jammu & Kashmir Reservation (Amendment) Bill, 2023, aimed at amending the Jammu and Kashmir Reservation Act, 2004. The basic purpose of these two bills was to further disempower the people of IIOJK and divide them based on languages, areas and tribes. The timing of the bills shows that all has been planned and agreed between the executive and judiciary. There are many other contradictions and violations of the Indian Constitution in the decision.
The people of Jammu and Kashmir did not accept the actions of 5th August 2019 as well as the decision of the Supreme Court. The curfew was imposed on 5th August as well as on 11th December, political leadership, even pro-Indian, were in jails or under house arrest on both dark days. India has no interest in the people of Jammu and Kashmir, her only interest is land and resources of that area. The Indian illegal actions or decisions of the court could not change the nature of Kashmir dispute. Kashmir is oldest unresolved issue on the agenda of the United Nations. UNMOGIP is deployed on both sides of the cease-fire line. Indian actions are the violations of all United Nations resolutions on Jammu and Kashmir particularly UNSC resolutions 91 (1951) and 122 (1957.
India or even the Assembly of IIOJK has no right to decide about the status of any part of the erstwhile State of Jammu and Kashmir. Resolution 122 says, “any action that Assembly (IIOJK) may have taken or might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the Assembly, would not constitute a disposition of the State in accordance with the above principle (Right to Self Determination);”
Transfer of the Indian population in IIOJK is also a violation of article 49 of the 4th Geneva Convention of 1949, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Jammu and Kashmir is under illegal occupation of India and an occupying power cannot, under any circumstances, acquire the right to conquer, annex or gain sovereign title over any part of the territory under its occupation. According to Oppenheim, belligerent occupation does not yield so much as an atom of sovereignty in the authority of the occupant.
The international community should ask India to engage with Pakistan and make a feasible environment for the arrangement of the plebiscite under the auspices of the UN. By 1976, the sub-commission of the International Law Commission considered the principle of self-determination a jus cogens norm of international law. The unresolved Kashmir dispute is a threat to peace, security and development in this region. The solution to this dispute according to the will and wishes of the people of Kashmir will be sustainable and durable.
—The writer is Director Kashmir Policy Research Institute, Director JKLC.
Email: [email protected]
views expressed are writer’s own.
