To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Tuesday, November 24, 2020

New Observercast

Restoration Of Civil Liberties And The Right To A Dignified Existence In Kashmir

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BY NYLA ALI KHAN

The recent unilateral decision of Prime Minister Modi’s government to revoke Article 370 which guaranteed the autonomous status of Jammu and Kashmir, bifurcate the State, and demote it to two federally administered union territories are flagrant violations of the sovereign Constitution of India. These maneuvers jeopardize the federal structure of India. The erosion of the rights and privileges of a State is an unhealthy precedent to set in a diverse and federal country. The current curbing of political and civil rights in Jammu and Kashmir is reprehensible.

The communication and information blackout, and incarceration of a large number of people, including elected politicians, in Kashmir have relegated every stakeholder in the state to the background. In effect, dissenting voices, even those of legislators and parliamentarians of opposition parties, have been stifled. In doing so, the federal government has ignored the statute of limitations and constitutional checks and balances that should have prevented the over centralization of powers in Jammu and Kashmir [J&K].

With the suspension of the Legislative Assembly of J&K and now detention of legislators, the space for young people in Kashmir to reflect on strategies, dialogue, and accommodation, which would bring every stakeholder to the table, has been seriously conscripted.

On Oct. 26, 1947, the monarch of Kashmir signed the “Instrument of Accession” to India, officially ceding to the government of India jurisdiction over defense, foreign affairs and communications. The accession of J&K to India was accepted by the British Viceroy with the stipulation that once political stability was established in the region, a referendum would be held in which the people of the State would either validate or veto the accession.

In January 1948 India referred the Kashmir dispute to the United Nations. Prime Minister Nehru took the dispute with Pakistan over Kashmir beyond local and national boundaries by bringing it before the UN Security Council, and seeking a ratification of India’s claims over Kashmir.

The UN reinforced Nehru’s pledge of holding a plebiscite in Kashmir, and in 1948 the Security Council established the United Nations Commission for India and Pakistan [UNCIP] to play the role of mediator in the Kashmir issue. The UNCIP adopted a resolution urging the government of Pakistan to cease the infiltration of tribal mercenaries and raiders into J&K.

It also urged the government of India to demilitarize the State by “withdrawing their own forces from Jammu and Kashmir and reducing them progressively to the minimum strength required for the support of civil power in the maintenance of law and order.”

The resolution proclaimed that once these conditions were fulfilled, the government of India would be obligated to hold a plebiscite in the State in order to either ratify or veto the accession of J&K to India.

In the meantime, the government of Jammu and Kashmir negotiated with the federal government to ensure that it would be allowed to function as a fully autonomous unit within the federation. Article 370 of the Constitution of India ensured that apart from defense, foreign affairs, and communications, decisions with regard to other matters would be determined with the consent of the government of Jammu and Kashmir.

As I’ve said on other forums, the Constitution of India seeks to guarantee respect for rule of law, independence of the judiciary, and integrity of the electoral process. But time and again, provisions of the Constitution of India have been breached in Kashmir, and the ideals that it enshrines have been forgotten.

In Kashmir, rights relating to life, liberty, and freedom of expression guaranteed by the Constitution, embodied in the fundamental covenants and enforceable by courts of law, have been flouted. The revocation of our special status, without consultation with the State Legislative Assembly, makes it clear that parliamentary democracy in India has been unable to protect a genuine democratic set-up in Kashmir.

Heads of governments cannot avoid their ethical and moral responsibilities toward the peoples of States in a federal country. The lives of those people cannot be torn asunder by paramilitary forces. After all, secularism means that all people have equal rights irrespective of their faith and religious leanings, and that everybody should respect the other’s feelings.

It is my belief that in a federal set-up the best way for emotional integration and national unity is not the over-centralization of powers but its decentralization leading to the restoration of power in the hands of federating units, which have acceded to be a part of the federation. The constitution of a country provides a strong framework, but it is for those who are responsible for the smooth functioning of institutional mechanisms of government to implement constitutional provisions.

Today, I would like to see those provisions of the Constitution of India implemented in Kashmir to restore our fundamental rights. Some heads of state and government, including President Trump, have said the revocation of the autonomous status of Kashmir is India’s internal matter, but there is nothing legitimate about indefinitely curbing the civil liberties of a people.

Trust cannot be won by the display of national chauvinism and intervention of the military in democratic spaces. Militarized peacekeeping, which we seeing in Kashmir these days, isn’t much different from aggressive military interventions. It is important to seek the restoration of civil liberties, right to life, and right to dignity in Kashmir.

Nyla Ali Khan is the author of Fiction of Nationality in an Era of TransnationalismIslam, Women, and Violence in KashmirThe Life of a Kashmiri Woman, and the editor of The Parchment of Kashmir. She also has served as a guest editor working on articles from the Jammu and Kashmir region for Oxford University Press [New York], helping to identify, commission, and review articles. Nyla Khan is a Commissioner of the Oklahoma Commission on the Status of Women. She can be reached at nylakhan@aol.com.