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Hilal English

Challenges to Justice: The Indian Supreme Court’s Fallacy in IIOJK

February 2024

Considering the legal history of the Kashmir case, it is well settled that Kashmir is an international dispute, and the final status of the state of Jammu and Kashmir is to be determined by holding a free and impartial plebiscite in accordance with UNSC resolutions, which are binding on the parties.



Justice must satisfy the appearance of justice”, said Justice Felix Frankfurter, Supreme Court of the USA. It takes us back at least eight centuries to Magna Carta (1215) signed by the King of the United Kingdom (UK), which declared, “To no one will we sell, to no one deny or delay right or justice”. The same idea underlies the common law judicial oath, which binds a judge to “do right to all manner of people without fear or favor, affection or ill-will”. However, a simple oath cannot instill honesty, and integrity, particularly in cases where political power is involved and when the biased judges are part of a larger conspiracy aiming to achieve political objectives. 
Once Bertrand Russell said, “It seems to me fundamental dishonesty, and a fundamental treachery to intellectual integrity to hold a belief because you think it is useful and not because you think it is true”. This is exactly what the Supreme Court of India did on December 11, 2023, when it ruled in a unanimous verdict passed by five judges that the “special status” of Indian Illegally Occupied Jammu and Kashmir (IIOJK) was a temporary provision and upheld the order abrogating Article 370 of the Indian Constitution. As a result, now all provisions of the Constitution of India will apply to the IIOJK. It also directed the Election Commission of India to hold elections in the occupied territory by September 30, 2024. 


Currently, it is the election season in India and the issue of the IIOJK is being politically engineered through the election campaign promises made by the BJP. The unanimous decision of Supreme Court of India legalizing the illegal actions of the BJP has provided a new impetus to the BJP’s election campaign.


Unfortunately, in today’s India, every institution is afflicted by the Hindutva ideology. It is imperative to appreciate the difference between Hinduism and Hindutva. Hinduism is a religion, whereas Hindutva is a political propaganda. Currently, the Indian government, led by the Bharatiya Janata Party (BJP), is a product of Hindutva—an extreme ideology seeking to establish the supremacy of Hindus and the Hindu way of life in India. It is based on discrimination, radicalism, intolerance, and fascism. The Hindutva slogan invalidates India's claim of secularism and is equivalent to the annulment of their decades-old deceitful impression of the world’s largest democracy. Practically, the BJP’s Hindutva ideology means the annihilation, plunder, and subjugation of non-Hindus living in India, particularly focusing on the Muslims of the IIOJK.


In pursuit of its settlers’ colonial plan, since August 5, 2019, India has issued thousands of new domicile certificates to non-local Hindus. The Indian government has also announced Kashmiri Pandit (Hindu) settlements along with soldiers’ colonies for retired members of the armed forces in the occupied region.


On August 5, 2019, the BJP government, pursuing the Hindutva ideology, abrogated the Article 370 of the Indian constitution. It separated the IIOJK into two regions–Union territory of the Jammu and Kashmir having Legislative Assembly and the Union territory of Ladakh without the Legislative Assembly. The autonomy of IIOJK was unilaterally abolished; it lost its flag and constitution. Earlier, the aforesaid provision had limited the power of the Indian parliament to impose laws in the IIOJK. The BJP government’s action abrogating Article 370 was challenged in the Supreme Court of India by pro-India organizations and individuals, and the petitions remained pending for approximately four years. Currently, it is the election season in India and the issue of the IIOJK is being politically engineered through the election campaign promises made by the BJP. The unanimous decision of Supreme Court of India legalizing the illegal actions of the BJP has provided a new impetus to the BJP’s election campaign.
The illegal actions of the BJP government and its subsequent endorsement by the Indian Supreme Court are in violation of the International Law because the Jammu and Kashmir is an international dispute. The Indian claim of it being entirely an internal matter or integral part is in absolute violation of the United Nations Security Council (UNSC) resolutions. The UNSC, being the highest diplomatic forum of the world, has passed several resolutions on the dispute of Jammu and Kashmir, thus, these UNSC resolutions are testimonies to the fact that it is an international dispute. The final status of the State of Jammu and Kashmir is to be determined in accordance with the Charter of the United Nations (UN) and applicable Security Council resolutions. The right to self-determination is the right of the Kashmiri people to determine their own political, economic, and cultural destiny through a free and impartial plebiscite. The Supreme Court of India failed to appreciate that the conduct of elections cannot serve as a substitute to the grant of the right to self-determination of the Kashmiri people, which is guaranteed by the UNSC resolutions. 


According to the Article 42 of Hague Regulations 1907, a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”.


The abovementioned judgment discusses the internal and external sovereignty of a state and the transfer of sovereignty pursuant to the instrument of accession, or the merger agreement, and the limits of the legislative powers. However, the basic question is the confirmation by the people of the Jammu and Kashmir, which was never granted to India by the people of the Jammu and Kashmir. It is most relevant to state here that UNSC resolutions on the Kashmir dispute are still valid. The judgment of Supreme Court of India cannot invalidate those resolutions. The UNSC resolution of April 21, 1948, in respect of the State of Jammu and Kashmir, is one of the most important UN resolutions, wherein, it was resolved, “Both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.” Therefore, it was a disputed territory and it still remains disputed even after this judgment and the Kashmir dispute can only be resolved by holding a free and impartial plebiscite in accordance with the UN resolutions, whereby, the Kashmiris will exercise their right to self-determination. India is afraid of plebiscite for obvious reasons, and Indian nefarious policy is to silence the voices of freedom by the use of brutal force. 
It is pertinent to mention here that the stance of Pakistan is clear and the correct legal position on the Kashmir dispute is stipulated in Article 257 of the Constitution of Pakistan. The Article 257 states: “Provision relating to the state of Jammu and Kashmir: When the people of the state of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State”. 
It is noteworthy that with the abrogation of Article 370, Article 35A now repealed, allows non-Kashmiris to buy land/property in the IIOJK and undoubtedly, the objective is to engineer a “demographic change” in the Muslim-majority region. Currently, India’s settler colonial plan has been fast-tracked with an objective to recruit a class of non-Kashmiri Hindu settlers to become permanent residents of the disputed territory. In pursuit of its settlers’ colonial plan, since August 5, 2019, India has issued thousands of new domicile certificates to non-local Hindus. The Indian government has also announced Kashmiri Pandit (Hindu) settlements along with soldiers’ colonies for retired members of the armed forces in the occupied region. The current murky state of affairs is adversely affecting the socioeconomic life of the people of the IIOJK. It will adversely affect job and business opportunities for the local Kashmiris. It will affect the identity, culture, and lifestyle of the indigenous people living there. Indian strategy is based on violence and the aim is to create a situation where plebiscite can never take place and the use of ruthless force against peaceful protestors is to ensure that Kashmiris accept the illegal annexation of the occupied territory. This judgment does not change the fact that India has illegally occupied the Jammu and Kashmir region and the presence of more than seven hundred thousand Indian troops in the occupied region to subjugate Kashmiris says enough about the verdict of the people of Jammu and Kashmir. 


Article 49 of the Fourth Geneva Convention 1949 states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”


According to the Article 42 of Hague Regulations 1907, a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”. Therefore, Indian army is the hostile army in the occupied territory having complete control, and is bound to follow the law of occupation. Indian policy of building new settlements contravenes the fundamental rules and the International Humanitarian Law (IHL). Article 49 of the Fourth Geneva Convention 1949 states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Therefore, India cannot transfer its population in the IIOJK. Furthermore, India is only allowed a very limited use of the property in the occupied territory. The rationale behind this limitation on the occupying power is derived from the concept that occupation is temporary, which is the basic idea of the law of occupation. 
The people of IIOJK have been continuously subjected to the illegal use of force with complete disregard to the International Law. India, being an occupying power is using all types of inhumane tactics against unarmed civilians, thus, acting in sheer violation of the Universal Declaration of Human Rights (UDHR) 1948, and in particular violating Article 3, “Everyone has the right to life, liberty and security of person”; Article 5, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”; Article 9, “No one shall be subjected to arbitrary arrest, detention or exile”; and Article 10, “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. Therefore, the verdict of the Supreme Court of India cannot divert the attention of the international community from the gross and systematic human rights violations being committed by the Indian troops in the IIOJK.
It is most noteworthy that when India abrogated the special status of the IIOJK, an official statement dated August 8, 2019 was issued by the office of the UN Secretary-General, António Guterres, which states, “The Secretary-General has been following the situation in Jammu and Kashmir with concern and makes an appeal for maximum restraint. The position of the UN on this region is governed by the Charter of the UN and applicable Security Council resolutions. The Secretary-General also recalls the 1972 Agreement on bilateral relations between India and Pakistan, also known as the Simla Agreement, which states that the final status of Jammu and Kashmir is to be settled by peaceful means in accordance with the Charter of the UN. The Secretary-General is also concerned over reports of restrictions on the Indian side of Kashmir, which could exacerbate the human rights situation in the region. The Secretary-General calls on all parties to refrain from taking steps that could affect the status of Jammu and Kashmir”. 
The statement of the UN Secretary-General sets the record straight and expressly rejects the Indian claim in respect of the region of Jammu and Kashmir. India is explicitly violating the UNSC resolutions, which is tantamount to threatening the peace and stability of South Asia, and particularly in view of the fact that Kashmir dispute is a potential nuclear flashpoint between two nuclear armed countries, thus, it is a serious threat to the peace and stability of the world, hence, it is an appropriate event for initiation of sanctions and stern actions prescribed under Chapter VII (Article 39 to 51) of the UN Charter, which provides for Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression. Thus, Indian illegal actions provide an appropriate and proper circumstance to implement the International Law. 
It is the paramount responsibility of the UN to take effective measures in order to maintain international peace and security, which is the mandate of UN in terms of Article 1 of the UN Charter. Article 1 (1) and (2) of the UN Charter, Chapter I: Purposes and Principles, states some basic purposes of the UN that are relevant in understanding the dispute of Jammu and Kashmir and violations of the Charter committed by India. Hence, Article 1 (1) and (2) are reproduced hereunder:
▪   To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations, which might lead to a breach of the peace.
▪  To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.
It is noteworthy that as per Article 2 (3) of the UN Charter, the UN and its member states are under obligation to strive for the fulfilment of the purposes stipulated in aforesaid Article 1, and all member states shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. However, to date, the UN has not been successful in fulfilling its obligation towards Kashmiris. The entire world is painfully aware that since August 2019, the IIOJK has become an open prison for Kashmiris. Therefore, it is the duty of the UN to act vigorously to resolve this long-standing dispute, which is causing immense human suffering for millions of Kashmiris.
Considering the legal history of the Kashmir case, it is well established that Kashmir is an international dispute, and the final status of the state of Jammu and Kashmir is to be determined by holding a free and impartial plebiscite in accordance with UNSC resolutions, which are binding on the parties. Therefore, the judgment of the Indian Supreme Court is in clear violation of international law.


The writer is an Advocate of the Supreme Court of Pakistan. Additionally, he has taught Constitutional Law at the Secretariat Training Institute, Government of Pakistan.
E-mail: [email protected]