Devious Modi’s ‘divisive lawfare’ on Kashmir?

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Syed Qamar Afzal Rizvi

ON 31 October, the Indian government has falteringly tried to make Ladakh and Jammu the part
of the Indian Union. This move or annexation via Kashmiris’ house detention holds no validity in international law totally lacks political and legal correctitude at the part of the BJP government under Narendra Modi. The world has never witnessed such a draconian process of annexation as being demonstrated by the BJP government in India as it is going to redefine the status of Jammu and Kashmir by dint of force and repression. Article 370 gave special status to the State of Jammu and Kashmir. It allowed the State to have its own Constitution. Whereas, Article 35-A, which gave special rights to the natives of the state.
The international community is currently listening to the beat of a similar drum in India in the face of the passage of a controversial resolution repealing Articles 370 and 35-A of the Indian Constitution. The resolution has terminated the special status – involving the semi-autonomy of Jammu and Kashmir (J&K) and has unlawfully placed the region directly under the Indian Union and the Indian Constitution. On October 30, The Central Government issued the order thereby dividing up the old state of Jammu and Kashmir into two union territories – one Jammu and Kashmir and the other the Buddhist-dominated high altitude region of Ladakh. Both will be directly ruled by New Delhi. While Article 35-A was promulgated with the aim to prevent significant demographic changes in the state, demographic changes occurred nonetheless. In the late 1980s, an indigenous insurgency broke out as a result of Indian malfeasance that began with the dismissal of a popularly elected state government and the subsequent conduct of a rigged election to foist into power a New Delhi stooge. .
And yet, many Indian writers are questioning the sanity of the Modi Government to send the European Parliament MEPs to Jammu and Kashmir. Was it a clever gambit that could change the discourse in the European Parliament or was it a foolish risk that has left egg splattered on many Indian faces? And yet not surprisingly, one MP, Chris Davies, a Liberal Democrat from Britain, says he was disinvited when he said he wanted to meet ordinary people without police and army security. “I am not prepared to take part in a PR stunt for the Modi government and pretend that all is well,” he said. Another British EU MP, Theresa Griffin, tweeted along similar lines. While Ladakh may be benefited from this development, the prospects for Jammu and Kashmir are highly bleak since many thinkers doubt that the change in status will deliver either economic dividends or the closer relationship between J&K and India that the BJP is aiming for. More certain, however, is that the move will do considerable damage to security and political stability within the Kashmir Valley. A constitution bench of the Supreme Court was scheduled to begin hearing on petitions challenging the Modi government’s move over Article 370. The bench deferred the matter till November 13 asking the Centre and State to file affidavits on the matter. But Modi’s fanciful annexation process has serious dangers to reap. A sense of greater alienation-cum-deprivation would develop in Kashmir—thereby adding fuel to the fear of Kashmiris — of being dominated by non-Kashmiris/outsiders. The ongoing turmoil and turbulence in Kashmir would certainly aggravate, as they would be realizing that their political power is reduced.
With respect to the content and force of Article 370 in the pre-August 2019 State of Jammu and Kashmir, the Indian government had used Article 370 to change laws in the state several times. Moreover, given the unrelenting Indian campaign of alleging Pakistan with infiltration into Kashmir, the state has been subject to a variety of legal regimes— “aid to civil” enabled by the Armed Forces Special Powers Act, Governor’s Rule and President’s Rule —all of which have been implemented on security grounds. In India, Governors are appointed by the President of India and thus represent the central government, while Chief Ministers are elected at the state level. But the appointment of two Governors for Ladakh and Jammu & Kashmir respectively remains a controversial issue. The Narendra Modi government’s Article 370 move in Jammu and Kashmir faces a constitutional test in the Supreme Court. It was expected. That the Modi government knew that it would have to defend its Article 370 move in the Supreme Court, which has fixed its hearing on November 13. China, which seems locked in a separate decades-old dispute with India over the part of Kashmir known as Ladakh, also slammed India for unilaterally changing its status. Chinese Foreign Ministry spokesman Geng Shuang said Kashmir was a dispute left from history that should be peacefully resolved. “The Indian government officially announced the establishment of so-called Jammu Kashmir territory and Ladakh Union territory which included some of China’s territory into its administrative jurisdiction,” Geng said at a news briefing.
New Delhi’s held argument— that the new administrative structures of J&K, being a union territory with legislature, and Ladakh a union territory without legislature, will turn out to be effective and efficient tools of ushering in greater progress in both the regions— loses its validity since imposition of such domestic Indian ruling has had an open clash with the spirit of international law which clearly denounces the revocability of Articles 370 and 35-A as unlawful. While there have been many arguments made on the method in which Article 370 was abrogated in its application to J&K, the Presidential Order has received scant attention. The Indian Supreme Court will have to play a crucial role in order to justifiably discern about the temporary or permanent nature of Article 370. Even if the Court’s decision— regarding the looming fate of the Article 370 in the Indian Constitution—serves the centripetal interests of the Modi government, the international applications of changing the Kashmir status will remain crucially instrumental.
—The writer, an independent ‘IR’ researcher-cum-analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.