Laws of occupation

Published August 6, 2019
The writer is a barrister.
The writer is a barrister.

“WHEN I think of India, I think of many things,” Jawaharlal Nehru wrote once. “Of … some mountain valley in Kashmir in the spring, covered with new flowers, and with a brook bubbling and gurgling through it.” In words that take on a new meaning today, Nehru concluded, “We make and preserve the pictures of our choice.” It suited India’s first prime minister, a Kashmiri Pandit, to preserve that picture, even if it meant occupation.

As Indian troops streamed into the Valley, Nehru feigned tears for his victims, and called for a plebiscite under UN supervision. “The people of Kashmir would decide the question of accession,” he telegrammed the Pakistani prime minister on Oct 28, 1948. “It is open to them to accede to either Dominion then.”

In the 70 years since, the people of Kashmir were never given a choice. Today, the vale is a killing field — a valley of mass graves and mass blindings, where children are raped as a weapon of war, and troops that tie civilians to jeeps are handed prizes for gallantry. But India’s brutality had long been carved in stone — as the end rather than the means. It took Narendra Modi, a man never known to flinch from the mass murder of Muslims, to take the next step.

At the core of this move lies Article 35-A, which was added to the Indian constitution via a presidential order under Article 370. These articles ensure that the suppression of millions of people warrants a ‘special status’: the prohibition of non-Kashmiris settling in the area. It was Nehru that had clinched this agreement with Sheikh Abdullah (the first of Srinagar’s puppet dynasts).

India has done away with the fig leaf of Kashmir’s sham ‘accession.’

As of yesterday, the BJP’s Amit Shah scrapped Article 370, and with it, the special status that prevailed for Kashmiris for the better part of a century.

Which is why, in the run-up to this latest presidential order, Indian journalists did their best to portray otherwise. It was Pakistan and Afghanistan and China and Trump and all manner of invisible monsters who were causing the bursts of manic Indian energy in the Valley: airlifting in thousands of troops, snapping phone lines, imposing curfew, and arresting its leaders.

They missed out on how old the Hindutva project was. Going into the 2019 polls, the BJP’s manifesto spelled it out in black and white: “We reiterate our position, since the time of the Jana Sangh, to the abrogation of Article 370.” By invoking the Jana Sangh, the cabal of saffron losers that took their cue from the proto-Nazi RSS, the party deliberately drew on a long history that stretches back to Independence.

A fresh electoral mandate has meant that intention is becoming action. In the immediate term, the impact of scrapping Article 370 will be earthshaking. In the long run, it will destroy the idea of India as a federalist democracy. But what does this change? On the ground, it opens the floodgates to Indian settlers, who can now purchase land and acquire property in Kashmir. Call it the West Bank formula: the Sangh Parivar has dreamed of altering Kashmir’s Muslim majority demographic since forever. It will now bulldoze a Hindu majority into the Valley.

It has also done away with the fig leaf of Kashmir’s sham ‘accession’, which itself was premised on the special status enshrined in Article 370. “The abrogation of Article 370 hasn’t just made accession null and void but also reduces India to an occupation force in Jammu and Kashmir,” says career quisling Mehbooba Mufti.

Ms Mufti is wrong: India has always occupied Kashmir. Scrapping Article 370 means Modi has advanced from occupation to annexation.

This also means ripping up the oldest card New Delhi has been playing since 1972: the Shimla Agreement. For decades, India froze out third-party mediation on Kashmir by invoking Shimla, which encourages bilateral cooperation, as an article of faith. But the agreement also states, “Pen­ding the final settlement of any of the problems bet­ween the two countries, neither side shall unilaterally alter the situation.” That clause is now in tatters. In any event, this dispute is rooted not in Shimla, but in hard UN resolutions.

India has also upended its own constitution: the presidential order revoking Article 370 stresses taking the consent of the India-held territory of Jammu & Kashmir. But that consent has been taken from the governor, a representative of the centre, sans the elected legislature. This is entirely unlawful.

Finally, the lotus boys have shredded more international law than imaginable: the UN Security Council Resolution of 1948 that mandates a plebiscite; the UNCIP Resolution of 1949 that guarantees freedom to return; and the Geneva Conventions that prohibit an occupation from transferring its own civilian population into held territory.

It is high time Pakistan stands up, and the world takes notice. Modi seeks to deliver a new generation of Kashmiris to an ancient agenda: the vale as a Hindutva colony. He will set fire to the Valley on his way there.

The writer is a barrister.

Published in Dawn, August 6th, 2019

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