Saba Shahid 

India’s recent repeal (5th August 2019) of Article 370 of the Indian Constitution indicates the Modi government’s aggressive stance towards the issue of Kashmir and takes it several steps further away from the resolution of the conflict. India claims Kashmir as its integral part while Pakistan claims that it is a disputed territory. Historical accounts provide enough evidence to support the idea that Kashmir never did accede to any side, and continues to reserve the right for self determination as an independent state. Included in this literature is Alistair Lamb’s extraordinary book The Myth of Indian Claim to Jammu and Kashmir: A Reappraisal which provides an insightful and carefully researched study on why the Kashmir issue should be seen as a struggle for independence. By repealing the law that gave some semblance of autonomy to an occupied state, the Government of India has not only violated its own Constitution but has further wedged the Kashmir issue into the Indo-Pak rivalry paradigm. Questions over the territoriality of Kashmir must be seen as a struggle for self-determination by the Kashmiri people, instead of a source of conflict between India and Pakistan.

Article 370 of the Constitution of India granted special status to the ‘state’ of Jammu and Kashmir, the region controlled by the Indian military since the inception of the Kashmir conflict. Article 370, albeit ironic in its implications, allowed autonomy to the region in terms of governance and administration although key areas such as foreign policy and defense, finance and communications remained with the central government. Pertinently, citizenship and ownership of property also came under the domain of the Jammu and Kashmir government with Article 35-A. Activists have called Modi’s decision to abrogate Article 370 as a blatant violation of international law, including the Security Council’s Resolution 47 of 21 April 1948, which called for a “democratic method of a free and impartial plebiscite” by both the Pakistani and Indian governments—something that has not yet taken place.

Even if one were to consider The Instrument of Accession, which in India is widely accepted as the document indicating the Maharaja’s consent to join India, there is considerable debate over the Instrument’s validity. Historian Alistair Lamb provides a credible departure from what has been succinctly and successively engraved into India’s historical account of Kashmir’s status after the Subcontinent’s Independence from the British Raj. According to Lamb, after the British Raj ended, by neither committing himself to joining the newly formed countries India or Pakistan, the Maharajah of Kashmir, Hari Singh, would convert a former Princely State of British India to an independent state of Jammu and Kashmir. Thus on 15th August 1947, Kashmir, by default, became independent. India however argues that Kashmir’s independence came to an end on the 26/27th of October of the same year, when an exchange of the following four documents took place:

  1. An Instrument of Accession of Jammu and Kashmir which the Maharajah signed on 26th of October 1947,
  2. An acknowledgement and agreement to this Instrument by Lord Mountbatten, Governor General of India on 27th October 1947,
  3. A letter to Lord Mountbatten from the Maharajah on the 26th of October 1947 asking for military aid in lieu of the accession to India, and finally,
  4. A letter to the Maharajah from Lord Mountbatten on the 27th of October 1947 acknowledging these documents and stating that “the question of the State’s accession should be settled by a reference to the people” after the law and order situation had returned to normal.

Lamb concludes however, that the chronology of these sets of documents does not coincide with the events that took place simultaneously. For one, the belief the Instrument of Accession was allegedly signed on the 26th of October is unfounded because there is enough evidence to prove that the Maharajah was in fact traveling by road from Srinagar to Jammu on that date. The Prime Minister of Jammu and Kashmir, M.C. Mahajan and V.P. Menon, the concerned Indian official, were both in New Delhi on the day and did not communicate with Hari Singh until the afternoon of 27th October. Two, the Indian troops arrived at Srinagar on the 27th of October after which, Lamb argues, any such documents could only have been signed under “duress” indicating, that the date 26th of October was thus decided to avoid any such doubts. Three, the Instrument of Accession discussed in (1) was published several years later, although this too is doubtful. Lamb explains that such a document was never presented to Pakistan when Indian troops began to intervene in Jammu and Kashmir, it was not given to the United Nations Security Council during the 1948 negotiations, nor is it referred to by the Indian Government in the White Paper explaining India’s position on Kashmir, rather an unsigned version of the Accession is presented. Given the Indian intervention in Kashmir on the 27th of October 1947 and the ensuing confusion over the Maharajah’s official decision on the future of Jammu and Kashmir, Lamb therefore concludes that “India was not defending its own but interfering in a foreign State.” Writing in 1994, Lamb believed that Article 370 protected the autonomy of the state of Jammu and Kashmir and he recognized that this was something that the Indian government was not comfortable with.

Despite Lamb’s  coherent research on the Instrument of Accession, it is discomforting to point out why Pakistan’s Ministry of Foreign Affairs could not own this narrative? With hindsight it appears that the Pakistanis could have altered the debate and questioned India’s presence in Kashmir from the onset and thus could have managed to push more forcefully for a fair and timely plebiscite in Kashmir.

Pakistan has been persistent in offering its support to the Kashmiri cause, and more recently has reorganized efforts towards internationalizing the issue. Yet, a fundamental determinant of how the conflict will ensue finally does depend on what the Kashmiri people choose to do. Given the current climate in the Kashmir Valley and the imposed restrictions, it is hard to believe that Jammu and Kashmir will return to normalcy any time soon despite Modi’s claims that the region’s situation will improve.

Two expected outcomes are possible with regard to the reaction of the Kashmiri people. Once the curfew is lifted, there is a chance that they do not indicate much opposition to the Indian government; the region is heavily militarized, with the public having very little influence over a better armed, better funded and more powerful opponent. The Kashmiris also suffer from conflict exhaustion, having endured decades of systematic repression. Irregular marches or erratic sit-ins may occur, but will eventually fizzle out as the Indian government waits for things to settle and continue with business as usual.

The second outcome is that people come out to the streets and protest the abrogation of Article 370 with great force and conviction. The executive order of the Indian government implies that it rejects any form of autonomy or independence of the people as a separate territory and establishes Indian control conclusively. This in turn has several consequences for the social, economic and political well being of the Kashmiris For the protests to have a significant impact, they must be backed by mass gatherings that are willing to confront the Indian military persistently. Reversing the August 5th decision will be a central demand and if the momentum is sustained, a stronger case for a referendum can be made. Lifting the curfew is a prerequisite and the eventual response the Kashmiris give would determine the future of their land.

This article comes from an extended study on Article 370 being researched by Saba Shahid Research Fellow at the Centre for Public Policy and Governance at Forman Christian College.

Saba Shahid is Research Fellow at the Centre for Public Policy and Governance at Forman Christian College.