Answering the Kashmir question

By Mohsin Raza Malik:

Living up to their dark traditions of oppression and tyranny in the occupied state, the Indian security forces open indiscriminate fire on the thousands of protesters in Srinagar following the death of young Kashmiri freedom fighter Burhan Muzaffar Wani last week.
So far, this brutal firing incident has left as many as 23 protestors dead and many other injured.
Hence the public sentiments against the occupation force have reached their zenith, sparking fierce protests and agitation across the volatile Himalayan states of Jammu and Kashmir.
As usual, the world community has kept mum over the Indian atrocities in the occupied valley.

While the Kashmir valley is continuously burning, the India PM Narendra Modi has been seen zealously beating drums abroad, somehow reminding us of the 5th Roman Emperor Nero who had been playing fiddle while Rome was burning.
Earlier, last month, the great ‘peacemaker’ delivered an impressive sermon on universal human values, democracy and individual liberty during a Joint session of the US Congress.
It is quite ironic that a country which proudly calls itself the world’s largest democracy now looks absolutely reluctant to extend the Kashmiri people the most fundamental democratic instrument- the right to decide their political future.

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The very concept of ‘consent of the governed’ essentially maintains that the legitimacy of the government and its moral right to use state power is not legal and justified unless consented to by the people over which that political power is exercised.
In contemporary political philosophy, principles like ‘consent of the governed’ and ‘will of the people’ generally form the underlying basis of authority for both the state and the government.
Giving rise to the very concept of ‘popular sovereignty’, these principles have somehow played a pivotal role in evolving and strengthening the democratic political institution in the civilised world.
Explaining the origin of the state and the legitimacy of the authority of state over the individual, the well-known social contract provides that individuals have, explicitly or implicitly, consented to surrender some of their freedoms to the state, in exchange for protections of their remaining rights.
Similarly, Article 21 of the United Nation’s Universal Declaration of Human rights states that “The will of the people shall be the basis of the authority of government”.

Over the period of time, the UK has readily incorporated the principle of ‘consent of the governed’ in its national political discourse.
The recent referendum in UK to decide county’s future in the EU is necessarily in line with this principle.
In this referendum, the majority of British people voted for the Brexit, favouring to leave the EU.
Soon after the referendum, the British Prime Minister David Cameron announced to step down, saying that the “will of British people is an instruction which must be delivered”.
The UK has also already conducted the Scottish Independence Referendum in September 2014.
Despite the fact Scotland has been the duly-acceded and undisputed part of UK for more than three centuries, the UK government allowed the Scottish people to decide their political future.
Earlier in 1922, the Republic of Ireland has willingly separated from the Union.

Pakistan was created after the partition of British India in 1947.
The principle of ‘consent of the governed’ was central to the entire plan of this partition.
The elected representatives of the provincial assemblies of Punjab, Sindh and Baluchistan formally decided to join Pakistan.
Likewise, the majority of the people of NWFP province voted in favour of Pakistan in the duly held referendum.
In accordance with this principle, at the time of partition of India, some more than five hundred princely states in British India, including the Kashmir, were allowed to either join the dominion of India or Pakistan “keeping in view their geography, people’s aspiration, culture and religion”.

It is quite unfortunate that the will of the people of Jammu and Kashmir has deliberately been ignored for a long time.
As matter of fact, the Kashmiris have yet not formally consented either to join or remain within the Union of India.
Since 1947, India’s has been trying to establish and consolidate its rule over the state of Jammu and Kashmir on the basis of a controversial Instrument of Accession, which was made in the utter violation of guiding principle of accession, ignoring altogether the aspirations of the people of Kashmir.
Calling for holding impartial plebiscite in the disputed state of Kashmir, a number of UN Security Council resolutions have further undermined India’s ‘right to rule’ over this territory.
Besides this, the article 370 of Indian constitution, by itself, acknowledges India’s flawed legal position on Kashmir.
Therefore, observably India’s very legal and moral footing to rule this territory is materially impaired.

For a long time, India has been trying to deceive the international community through its extensive electoral maneuvering by holding the periodic state and parliamentary elections in Kashmir.
It is rather a paradoxical situation that India readily offers the contemporary democratic instrument of political representation to Kashmiris but, at the same time, it forcefully infringes the political sovereignty of the part of the world where they reside.
Logically, before deciding the question who should represent them, the answer of the very question why and who should rule the Kashmiris must be sought first.
Without granting to the Kashmiris a right to decide their political future, mere holding elections in Kashmir would be a futile exercise.
Therefore, the sham electoral exercise in Kashmir can by no means offer any sustainable solution to the burning Kashmir question.
Nor can it be the substitute for the long demanded plebiscite in the disputed state.

The Kashmir issue is a major source of confrontation between India and Pakistan.
Both countries have fought four full-scale wars over this issue.
They have also been trying to settle this dispute through bilateral dialogue sine inking the Simla Agreement in 1972.
However, on account of inflexible attitude exhibited by India, this dialogue process has also failed to deliver anything good so far.
Instead of sincerely endeavouring to work out any pragmatic solution, India has deliberately used the dialogue process as an instrument to dilute the intensity of Kashmir conflict after pacifying Pakistan and international community.

India has employed its extensive military apparatus to suppress the ongoing freedom movement in Kashmir.
besides more than half a million regular Indian Army troops, presently India has delayed a large number of personnel of Border Security Force, Central Reserve Police Force and Special Operation Group in Kashmir.
Moreover, in line with Israel’s controversial policy of creating settlements in the occupied territory, now the BJP government also intends to resettle tens of thousands of Hindus in three new townships in Kashmir.
However, India’s well thought-out policy of changing the demography of Muslim-dominated Kashmir is being strongly opposed and resisted by the Kashmiri people.

It is also another BJP’s policy agenda to abrogate the Article 370 of Indian Constitution, which grants a special autonomous status to the state of Jammu and Kashmir.
However, lacking the required two third majority in the parliament, the government has yet not succeeded in enforcing BJP’s ‘Kashmir policy’.
Besides this, recently the Jammu and Kashmir High Court has also thwarted the intended plan of the BJP government through a landmark decision, ruling that India cannot abrogate, repeal or even amend the Article 370 of the constitution.

Despite fighting a number of wars and pursuing an extensive dialogue process for a long time, Pakistan and India, the two major South Asian stakeholders in Kashmir issue have failed to resolve this issue amicably so far.
Similarly, India’s entire domestic military, legal and political instruments to consolidate its illegal rule over Kashmir have also badly failed in the face of Kashmiri people’s strong aspiration for freedom and self-determination.
Therefore, under the circumstances, an impartial and independent plebiscite or referendum is the pragmatic solution for the underlying woes of the Kashmiri people, who have already paid a heavy price for their fundamental political rights.
The Kashmiris should be allowed to determine their political future in accordance with the universal principle of ‘consent of the governed’.
The will of the Kashmiri people should prevail over the wish of any regional country, making an exclusive claim over the long suffering Himalayan state.

The writer is a lawyer and columnist based in Lahore.

mohsinraza.malik@ymail.com

@MohsinRazaMalik