Author interview in Srinagar, 2011.
Photo: Cornelia-Adriana Baciu
Curfewed Night: A Frontline Memoir of Life, Love and War in Kashmir, the memoir on the conflict in Kashmir by the Indian journalist Basharat Peer which won the Crossword Prize for Non-Fiction and was chosen among the Books of the Year by The Economist and The New Yorker, is the first thing to come into my mind when I think about Kashmir.
“It is human to feel fatigued. But worse than fatigue was the brutal state repression which ended previous uprisings,” were the words of one respondent from Kashmir in relation to the 2016-2017 uprising in Kashmir, in which more than 100 protesters were killed and 150,000 injured by Indian military and para-military forces, during my field research on both sides of Kashmir, in India and Pakistan in 2010 and 2011. I visited the Kashmir Valley for the first time just after the end of the riots, in November 2010, during my exchange semester at Jawaharlal Nehru University in New Delhi, and I experienced the curfews for the first time.
Kashmir has a long history of unrest, and each time “central government forces have entered and ransacked homes and beaten up residents irrespective of age and gender. This kind of brutal suppression is done with a sole objective to quell the uprising,” reported one respondent, who wanted to remain anonymous.
Previous unrests have not achieved “Azaadi” (in Kashmiri, peace), but they highlighted the Kashmir conflict globally and dismantled the Indian projection that Kashmiris are happy with the Indian rule.
Art 370. as Peace Dividend in Kashmir
One key finding of my research in Kashmir, when I conducted interviews with leaders of the Kashmiri movement on both sides (India and Pakistan) – including people like Syed Ali Gillani (who was under house arrest at the time of the interview) and Yasin Malik, the leader of the JKLF (Jammu and Kashmir Liberation Front) – was related to Article 370 of the Indian Constitution, which the Bharatiya Janata Party (BJP) government has subtly scrapped on 05 August 2019, only ten days before Indian National Day and 73 years since the independence from British colonial rulers and established of a free Indian state. The move was done amid the imposition of a state of total curfew and lockdown in Kashmir. Demilitarisation of the Kashmir Valley and implementation of Art. 370, which has been gradually eroded over time, emerged as one of the most feasible solutions to stabilise trust relations between Delhi and Srinagar.
“The demilitarisation of Kashmir or reduction of the number of security forces could bring a sense of freedom among the local population and could lay a stable basis for the consolidation of trust relations between Srinagar and Delhi,” stated one respondent. Ultimately, non-lethal crowd-control measures would better fit to a democracy like India. “India cannot claim to be the largest democracy and at the same time enact brutal oppression against Kashmiri citizens. Its human rights record in Kashmir is going to mar its reputation globally and can also become a stumbling block in the pursuit of covetous membership in Nuclear Suppliers Group and UN Security Council,” related another respondent.
The re-establishment of the conditions of semi-autonomous status of Kashmir, which was guaranteed under Art. 370 of the Indian Constitution, was believed by the majority of the respondents in the analysed sample to contribute to reduce anti-India resentments. This measure would have had the potential to increase the role of local population in the decision-making process, reassembling the meaning of self-determination and the essential aspiration of Azaadi.
The righteous and judicious implementation of Art. 370 could have constituted a feasible peace model in the region, even more sustainable than the implementation of the UN Security Council Resolution 47 of 1948, which, while can be claimed to be still valid (UN decisions are valid until they are invalidated by the organ which took it), probably from a legal perspective is in a state of desuetude. Moreover, the UN resolution had little relevance in the self-determination endeavour of the Kashmiri people, as it only offered two options, either accession to India or to Pakistan (UNSC Resolution 47, S/726, para. 7); there was no option of ‘Azaadi’.
Internal autonomy guaranteed under Art. 370 was a pre-condition for the (formerly princely state Jammu and Kashmir) accession to India at the time of Partition in 1947. Art. 370, corroborated with constitutional provisions 35a, guaranteed the Kashmiris internal autonomy, with their own parliament, government and even flag, and rights of property acquisition in the region to Kashmiris only. Although initially a temporary provision, Art. 370 was rendered permanent by India’s Supreme Court in 1957.
The chances of a revocation of the BJP government decision and re-institution of Art. 370 seem very thin, as an appeal at the Supreme Court can be made only by the Jammu and Kashmir Assembly but this is currently dissolved, and it is not clear whether the Governor can pursue such procedures.
Implications for Domestic and International Security
The BJP decision to politically align Jammu and Kashmir with the other Indian states was accompanied by a series of measures by the federal government, such as a total lockdown in the Kashmir, house arrest of previous chief ministers Omar Abdullah (National Congress) and Mehbooba Mufti (Peoples Democratic Party), and the activation of Section 144 of the Code of Criminal Procedure prohibiting gatherings of more than four people. These oppressive measures are likely to increase the sense of frustration and thus the possibility of violent unrest in Kashmir, which is boiling.
One possibility to overcome the current impasse would be international mediation, and a commission consisting of representatives of the European Union, United States, Organisation of Islamic Cooperation (OIC) and China, could assist in reconciling the issue. However, such a scenario seems rather unlikely, considering that India has explicitly asked international actors and allies not to intervene in what is considered a matter of internal affairs.
International mediation on the Kashmir issue can be a challenge for the global community, considering the Shimla Agreement of 1972, signed and ratified by India and Pakistan in 1972. According to Art. 4.II of the agreement, “[n]either side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations.” But this provision shall not whatsoever become the shield for oppression and human rights violations. The Shimla Agreement also pledges in Art. I. that “the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries [India and Pakistan].” The international community shall keep a close eye on the development in the region and not remain silent in case of violation of such fundamental principles like the UN Charter, as this will weaken its credibility.
While a potential international mediation might ameliorate the immense tensions, it would probably be illusory to believe that it could solve the decades-long dispute between India and Pakistan. Muslims in South Asia began to fear for their identity since the end of the Mughal Empire, and until a model which guarantees Muslim rights, as Art. 370 did, is found, political uprising and violent confrontation remain an extreme risk. In case of a new unrest in Kashmir, a new crisis between the two nuclear states, as it was the case during the Kargil War in 1999, cannot be completely ruled out, as Pakistan has already pledged its support for the Kashmir cause – with Prime Minister Imran Khan holding an historical speech in Azad Kashmir on 14 August, which coincided with Pakistan Independence Day.