New Delhi, After a delegation from Jammu and Kashmir met Home Minister Amit Shah on Tuesday and on the eve of the Eastern Economic Forum in Vladivostok where Prime Minister Narendra Modi is the chief guest, the government released a position paper on J&K and the developments since the August 5 revocation of Article 370 and 35A.
The position paper highlights how Article 370 actually impeded greater development within the state, as also hindered social equity and allowed festering of anti national sentiment.
It debunks the creation of the faux state called “Azad J&K” and throws into stark relief how sequential steps taken by Pakistan on the eve of the accession by sending marauding Kabalis and Afridi raiders to capture Kashmir Valley and subsequently not removing troops and people from the original state of J&K rendered the so-called plebiscite ‘hors de combat’.
1. Ongoing measures being undertaken by the Government to restore normalcy in J&K
– Full focus is on returning situation to normalcy. Some restrictions on communications and preventive detentions have been made at local administration level based on the ground situation with a view to maintain public law and order. These are being reviewed continuously by them and being eased based on the ground situation.
– There has been no incident of major violence. Not even a single live bullet has been fired. There has been no loss of life. Some small protests have been handled by local police while exercising full restraint.
– Essential supplies, including 24�7 electricity, water supply and sanitation are being ensured.
– Hospitals and medical facilities are functioning normally. There is no shortage of medicines. All 376 notified medicines and 62 essential medicines are available in adequate quantity. In Srinagar, 1,165 out of 1,666 chemists shops are open. In Kashmir valley, 65 per cent of the 7,630 retail chemists and 4,331 wholesale chemists are open. Over the last fortnight, nearly 250,000 people visited different district hospitals.
– Telecom connectivity is being restored gradually, keeping in mind the threat posed by terrorist organizations in using mobile connectivity to organize terror actions. 73,000 of the 93,000 landline telephones made operation by third week of August. 76 out of the 95 telephone exchanges in Kashmir are now functional. All landlines and mobile phones are fully functional in Jammu and Ladakh regions.
– A Media Centre with communication facilities is operational in J&K to enable the media to cover events in the J&K. Regular press briefings are being held by the J&K administration. Over 400 passes have been issued, majority to local journalists to facilitate reporting. All mainstream newspapers are being printed. Satellite channels and cable TV networks are operational.
– Movement restrictions had been imposed by local administration in some parts by local administration to prevent miscreants from fomenting trouble. Prolonged relaxations in movement restrictions were made in most parts of J&K and Ladakh during Friday prayers; pre-Eid Shopping (10-11 August); Eid Prayers (12 August). Some restrictions were required around Independence Day (15 August) for which terror threat perception was greater, particularly in the light of statements from across the border. Gradually these restrictions are being removed.
– Pilgrims going on Haj and returning from Haj are specifically facilitated. 83 more Hajis of Srinagar district returned home on 23 August 2019;
– 91 per cent of the Kashmir Valley free from any day time restrictions. Jammu and Ladakh regions are completely free from any day-time restrictions.
– Vehicular movement in many parts of J&K and Ladakh is normal. Transportation of local fruit produce has increased with 300 trucks plying on daily basis and with over 150,000 metric tonnes of fruit produce has been sent to various sale points outside the valley.
– Government offices have been made fully functional from 16 August.
– Schools are being gradually opened. Primary (till class 5) and Middle schools (till class 8) were reopened on 19 August and secondary schools reopened on 26 August.
– Banking and ATM facilities operating normally and cash is regularly loaded so that public do not face any difficulty;
– Examinations in Government Medical College Srinagar to be held 05-12 September and 24 Sep -12 October 2019. Arrangements made for the students to reach college for the examination.
– The Supreme Court of India has observed that Government needs to be given more time in its sincere efforts to bring normalcy in the situation.
– India has an independent judiciary and independent State and National level Human Rights Commissions to address grievances of any nature faced by Indian citizens.
2. Abrogation of Article 370
-Article 370 is not mandated by any multilateral body or agreement. Nor does it spring out of any bilateral agreement. It is entirely an internal decision concerning the Constitution of India, and its modification or repeal is therefore the sovereign right of India.
– Article 370 post-dates the UNSC resolutions. At the time it was included in India’s Constitution as a ‘temporary’ provision, as well as when it was subsequently modified, Pakistan had no say in the matter. Therefore, Pakistan’s current position is inexplicable.
– The existence of Article 370 guaranteed neither economic development and social justice, nor security and law and order in Jammu & Kashmir. Revoking Article 370 will ensure effective governance and delivery of services to the citizens.
– India has taken no retrograde step to affect its bilateral relations with Pakistan nor threaten international peace and security. Pakistan, to the contrary, has taken a series of steps including, inter alia, recall of envoys, suspension of trade, suspension of bus and rail links, etc.
– India has an independent judiciary which is capable to look into the constitutionality of any amendments made to the Constitution of India.
3. Prime Minister Narendra Modi’s statement on abrogation
“New era has begun in Jammu and Kashmir, and Ladakh. Article 370 and Article 35A have only encouraged terrorism, sluggish development, family-based politics and corruption in Jammu and Kashmir.
The old arrangement in Jammu, Kashmir and Ladakh encouraged corruption, nepotism but there was injustice when it came to rights of women, children, Dalits, tribal communities. I want to make it clear; your representative will be elected by you; your representative will come from amongst you… I have complete faith, under this new system, we all will be able to free Jammu and Kashmir of terrorism and separatism.”
4. International reactions on the abrogation of Article 370
– The Maldives, Russia, Bangladesh, France, the US all have come out with statements to the effect that Kashmir is a bilateral issue between India and Pakistan and it is for the the two countries, under the framework of their bilateral political dialogue, to resolve this dispute so as to establish lasting peace.
5. Kashmir must not be seen in the prism of Hindu Muslim issues
– The statement below by Sheikh Abdullah holds even more truth now as it did in 1951 when he delivered it as part of his speech to the Jammu and Kashmir Constituent Assembly:
“The real character of a State is revealed in its Constitution. The Indian Constitution has set before the country the goal of secular democracy based upon justice, freedom and equality for all, without distinction. This is the bedrock of modern democracy.
“This should meet the argument that the Muslims of Kashmir cannot have security in India, where the large majority of the population are Hindus. Any unnatural cleavage between religious groups is the legacy of Imperialism, and no modern State can afford to encourage artificial divisions if it is to achieve progress and prosperity. The Indian Constitution has amply and finally repudiated the concept of a religious State, which is a throwback to medievalism, by guaranteeing the equality of rights of all citizens irrespective of their religion, colour, caste and class.”
6. Accession of J&K to India:
– Jammu and Kashmir acceded to India through the signing of the Instrument of Accession on October 26, 1947 which was legal, as per the Government of India Act 1935, Indian Independence Act 1947 and International Law.
– The Accession was termed as legal and irrevocable and endorsed by democratically elected Constituent Assembly of J&K convened in 1951.
– There were no special Terms of Agreement with the accession. The Instrument of Accession signed was the same as with other 560 princely states in India.
– The consent of the people ascertained through the support to the Accession by the largest political party in J&K, the National Conference.
– The leader of the National Conference, Sheikh Abdullah headed the interim government post Accession.
– Lord Mountbatten (1st Governor General of India) accepted the Accession as unconditional and complete.
7. Bilateralism in India-Pakistan resolution of issues:
– Resolution of all outstanding issues, including Jammu and Kashmir, between India and Pakistan is premised on the last major bilateral agreement signed between the two countries.
– On 2 July 1972, India and Pakistan signed the Simla Agreement with a resolve that thus onwards all issues including Jammu and Kashmir to be discussed through a bilateral dialogue process. This has been endorsed by the Lahore Declaration (February 1999) in both letter and spirit.
– On UNSC Resolutions itself, Pakistan has failed till date to fulfil its own obligations.
UNSCR # 47 clearly laid down sequential steps for resolving the Kashmir issue. The steps included ceasefire, Pakistan withdrawing its troops entirely from Kashmir and using its best endeavours to secure the withdrawal from the state of Jammu and Kashmir of “tribesmen” and “Pakistani nationals not normally resident therein who have entered the state for the purpose of fighting.”
– Furthermore, Pakistan has changed the status quo with the continued presence of its regular Army in Pakistan-occupied Kashmir (including Gilgit-Baltistan or G-B); the passage of enactments such as the Interim Constitution Act, 1974; the Gilgit- Baltistan (Empowerment & Self-governance) Order, 2009 (as amended in 2018); separation of G-B from occupied parts of J&K and abolishment of the ‘state-subject’ stipulation in 1974 in the region; and illegal ceding of 5,180 sq km of J&K to China under the 1963 Sino-Pakistan Boundary Agreement. Since 1947, Pakistan has also systematically altered the ethnicity status-quo in PoJK by the settlement of Pashtun and Punjabi population in G-B.
– UNSC Resolutions are also to be seen as contextual to historical situation and cannot be the sole basis of a resolution to the matter, as succinctly underlined by the
UK Secretary of State for Foreign and Commonwealth Affairs in the British Parliament in 2002. He said “If UNSC Resolutions could have solved the matter, it would have been solved 50 years ago.”
– In the context of the bilateral approach to India-Pakistan issues, as agreed and signed by the democratically elected leaders of the two countries in 1972, the UNSC
Resolutions have now become irrelevant.
– The accession of J&K into India was final and irrevocable after the signing of the Instrument of Accession in October 1947. The Parliament of India, in 1994, passed a unanimous Resolution reiterating that J&K is an integral part of India and Pakistan immediately vacate its illegal occupation of Pakistan-occupied Jammu and Kashmir (PoJK).
8. Pakistan policy: promote terrorism in India as an instrument of its state policy.
– India has been a victim of Pakistan-sponsored cross-border terrorism since 1980s in Punjab and from 1989 onwards in J&K.
– Major terrorist attacks emanating from Pakistan include, in recent times, the Indian Parliament attack in December 2001, the Mumbai terror attacks in November 2008 and between 2014 till now targeting the Indian armed forces in Pathankot, Uri and Pulwama.
– These attacks were carried out by Pakistan-based terrorist organisations, which are proscribed under the UNSC 1267 Sanctions Committee namely Lashkar-e-Toiba, Jaish-e-Mohammad and Hizbil Mujahideen.
– Terror entities like Hafeez Saeed, Masood Azhar, Syed Salahuddin, Rauf Asghar, Abdul Rehman Makki who are all proscribed as terrorists internationally, including at the UN, continue to freely carry our terror operations against India through their safe havens in Pakistan.
– Pakistan’s legal regime relating to criminality of terror financing by all UN designated terror entities has enormous gaps and no action has been taken by Pakistan to address them. As a consequence, Pakistan has been placed in ‘grey list’ of the Financial Action Task Force (FATF) of the UN meant to address Anti-Money Laundering/Countering Terror Financing globally.
– The grey listing denotes jurisdictions with strategic deficiencies in countering terror. Pakistan’s efforts in recent times to address the FATF Action Plan continues to
remain far from sufficient and this has been confirmed at the last FATF Plenary in US in June 2019. Pakistan is in real danger of being ‘black listed’ in the category of North Korea and Iran in the forthcoming FATF Plenary in October 2019 due to lack of its commitment exhibited in countering terror financing within Pakistan and regulating the activities of extremist entities.
9. Governance in PoJK:
– As a constitutional entity, the so-called “Azad Jammu and Kashmir (AJK)” is unique. It has been given the trappings of a country, with a President, Prime Minister and even a Legislative Assembly but it is neither a country or a province.
– Under Section 56 of the ‘AJK’ Interim Constitution 1974, Pakistan government can dismiss any elected government in AJK irrespective of the support it may enjoy in the AJK legislative Assembly.
– The AJK Constitution bars individuals, who do not support the idea of Jammu and Kashmir’s accession to Pakistan, from participating in the political process.
– All major civil and police administrative posts are held by Pakistani civil and military officials.
– PoJK does not have any representation in Pakistani Parliament.
– The law of GB i.e. 2009 Gilgit-Baltistan Empowerment and Self-Governance Order (GBESGO) can only be amended by the Pakistani government. As per the Gilgit Baltistan Order-2018, the PM of Pakistan has been empowered to veto any legislation passed by the G-B Assembly and recommend to the President of Pakistan the dissolution of the Assembly.
– The territories ‘local representatives’ are excluded from the Pakistani bodies that negotiate interprovincial resource allocation and federal taxes, hence no fiscal
autonomy.
10. Status of Media and Press Freedom in Pakistan/PoJK
– According to the World Press Freedom Index prepared by Reporters Without Borders, Pakistan ranks 142 out of 180 countries. Pakistan remains among the most dangerous place in the world to practice journalism.
– The 2014 Protection of Pakistan Act gives security forces expansive powers to search, detain and use force against suspects. It also includes vague references to “internet offences and other offences related to information technology” – the provisions that have raised concerns that the law could be used against journalists.
– The government of Pakistan passed a controversial Prevention of Electronic Crimes Bill (PECB) which became law in September 2016. Pakistan’s journalists, who already faced severe obstacles in covering activities of the armed forces, came under acute pressure to disseminate positive coverage of military operations, with some sources reporting that the military figures issue explicit directives for coverage.
– The constitution and other legislation, such as the Official Secrets Act of Pakistan authorise the government to curb freedom of speech on subjects including the constitution itself, the armed forces, the judiciary and religion. Broadly defined contempt laws have been employed by the judiciary to restrict reporting on particular
cases or judges. Journalists can face prosecution under a variety of anti-terrorism measures.
– Committee to Protect Journalists (CPJ), an American non-profit NGO, reported that 21 murders of journalists that were committed between September 1, 2006 to August 31, 2016 remained unsolved. A special report (2019) of the Pakistan Press Foundation revealed that at least 48 journalists were killed in targeted attacks in the
last 17 years in Pakistan.
– According to the Human Rights Watch, the Pakistani government represses democratic freedoms, muzzles the press and practices routine torture within AJK. According to the human rights commission of Pakistan, Inter-Service Intelligence (ISI) carries out extensive surveillance operations on the press and pro-independence groups, they have carried out arbitrary arrests in which people have been tortured and several have died.
– Within PoJK itself, the Pakistani government uses the constitution and other laws to curb freedom of speech on a variety of subjects, including the status of Azad Kashmir and sectarian violence. Media owners cannot publish in Azad Kashmir without permission from the Kashmir Council and the Ministry of Kashmir Affairs of Pakistan.
11. Constitutional, administrative and legal measures in Pakistan/PoK to discriminate against minorities/ Social legislation comparators:
– Religious minorities in Pakistan have been systematically marginalised, persecuted and discriminated against by the very State.
– Rights of Minorities are undermined with unequal voting rights through the system of separate electorates – imposed in 1985 for all religious minorities. In 2001 joint electorates re-established for all religious minorities except the Ahmadis, who continue to be discriminated.
– Indiscriminate use of the blasphemy law meant that many groups like Christians, Qadiani Group, Lahori Group and Ahmadiyyas faced the death penalty for any purported denigration of Prophet Muhammad. At least 1,472 people were charged under the Blasphemy laws between 1987 and 2016 (as per a BBC report)
– Passports and ID cards bear details of religious affiliation and marriage of persons from religious minorities is considered dissolved if wife converts to Islam and the children considered illegitimate
– Family law theory and practice is largely based on treating women as unequal in the eyes of the law. According to the 2016 statistics released by the UK Forced Marriage Unit (FMU), 612 (43 per cent) of cases involving a victim who was either at risk of being or had already been in a forced marriage that the Unit handled originated from Pakistan. The Zina (Enforcement of Hudood) Ordinance 1979 penal provisions prevent women from making marriage choices
– The status of the tribal groups (in FATA region) is governed through the Frontier Crimes Regulation, 1901. The residents are denied the basic rights possessed by other Pakistanis – appeal (the right to request a change to a conviction in any court), Wakeel (the right to legal representation) and Daleel (the right to present reasoned evidence). The universal suffrage was granted to FATA residents only in 1997 and the political parties were not legally allowed to campaign in the region until 2013.
