THE verdict of Indian Supreme Court over the abrogation of Article 370 of Indian Constitution about the special status of Indian Illegally Occupied Jammu and Kashmir (IIOJK) was a great setback for the legal community of the world from many aspects. This controversial verdict of Indian Supreme Court has four inferences: a) it has put a big question mark on the credibility of Indian Supreme Court and its judges, b) Indian Supreme Court presented itself as an unfair, biased and autocrat institution rather as a source of justice, c) it gets dictation from the Government, political parties and their militant wings like RSS and d) it has no morality and respect for the constitutional safeguards and promises, Indian leadership and constitutions made with Kashmiris at the time of passage of Article 370; a transitional, temporary, provincial measure. Besides, Indian Supreme Court violated the Constitution of IIOJK; the Constitutional Assembly of IIOJK accepted the transitional, temporary and provisional approval of Article 370 in 1956, before its dissolution.
Indeed, relegation of the statehood of IIOJK on August 5, 2019 was an illegal act of Indian Government. It was worse than Indian occupation of Jammu and Kashmir on October 27, 1947. Lowering the status of IIOJK into union territories and their annexation with India was illegal, immoral and a blatant violation of international law, UN resolutions and constitution of IIOJK. Special status of IIOJK under Article 370 of Indian Constitution was a temporary, transitional and provisional arrangement, asserting that, Kashmir was not part of India. This position was to remain effective until people of Kashmir determine their future status through a free and fair plebiscite as per UN resolutions. In last over seventy-five years, the plebiscite could not be held in Jammu and Kashmir only because of Indian perpetual reluctance through a strategy of prolonging the dispute and buying time for changing the nature of dispute. Relegating the statehood and its annexation into Indian Union was a clear violation of international covenants and UN resolutions especially two UNSC resolutions over Kashmir; Resolution no. 91 and Resolution no. 122. Indian Supreme Court could have taken into considerations about the disputed nature of IIOJK since Jammu and Kashmir is not part of Indian. It is pertinent to mention that, Article 370 was to remain valid until conduct of the plebiscite in the state as per UN resolutions. This article got a conditional acceptance from the Constitutional Assembly of IIOJK after which Assembly was dissolved in 1956/57. Undoing this Article was to be done by the Constitutional Assembly or at least Legislative Assembly of IIOJK which was not done, since India imposed Presidential Rule to implement its illegal annexation of the state through unconstitutional ways and means. By relegating the statehood of IIOJK into union territories, India humiliated the entire Kashmiri nation, Pakistan and UNO. Subsequent to this illegal act, on April 1, 2020, Indian introduced yet another law for the grant of Kashmiri citizenship to non-Kashmiris, the Indian nationals; a plan to make massive demographic changes in IOJK. Article 49 of the Fourth (4th) Geneva Convention-1949 provides adequate protection to local civil population of any occupying territory with respect to the right over their land and security against making any demographic changes in the composition of the original population. Article 49 (6) of the 4th Geneva Convention exclusively deal with the Protection of civil population in the time of war. Since 1990, the occupied state of Jammu and Kashmir has been a war zone with an overwhelming military presence of over 900,000 Indian troops. Indian security forces have been involved in massive killings of Kashmiris masses with total impunity under repressive Indian laws. Indeed, IIOJK has highest troops concentration level in the world with the status of an active war zone. This Article prohibits the transfer by an occupying power of its own civilian population in the area it occupies and stipulates that the “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”.
Indian Supreme Court did not take into consideration this Indian violation of International Law and various covenants at the time of stamping its decision about Article 370. India is a signatory state of the Geneva Convention-1949, therefore bound to observe and follow the Convention in its essence. Shifting its own population in occupied parts of the state Jammu and Kashmir clearly aims at making the demographic changes by India. Indeed, the Jammu and Kashmir Reorganization Act-2019 and Adaptation of State Laws Order-2020 are meant to make demographic changes in IIOJK.
The Jammu and Kashmir is an international dispute with over 20 UN resolutions, demanding its solution through a free and fair plebiscite. How can India devise these strategies in occupied Jammu and Kashmir which is not its part? Once Article 49(6) clearly prohibits any measure meant for demographic manipulation by any state or an occupying power, how India is manipulating all this in the occupied state of Jammu and Kashmir while degrading its centuries old status of a state.
As a key stake holder and important party to Kashmir dispute, Pakistan must challenge the decision of Indian Supreme Court at International Court of Justice and all other organs of United Nations. This has to be done sooner than later since India is constantly changing the demography of IIOJK and international community and United Nations are mysteriously quite over the verdict of Indian Supreme Court, Indian Government’s Act of August 5, 2019 and the massive human rights violations taking place in IIOJK.
— The writer is Professor of Politics and IR at International Islamic University, Islamabad.
Email: drmkedu@gmail.com
