Viewpoint | August 2019

J&K Loses Special Status and Split into Two Union Territories

The special status conferred on Jammu and Kashmir by virtue of Articles 370 and 35A of the constitution was scrapped earlier this month and Parliament passed legislation to divide the state into two union territories: Jammu and Kashmir with a legislature and Ladakh without one. Intervening during the debate in Parliament, Home Minister Amit Shah stated that his references to J&K included Pakistan occupied Kashmir and Aksai Chin. In a subsequent meeting with the Chinese Foreign Minister, External Affairs Minister (EAM) S. Jaishankar stated that the changes were India’s internal matter and there was no implication for either the external boundaries of India or the Line of Actual Control (LAC) with China. India was not raising any additional territorial claims. He also stated that the changes had no bearing on Pakistan and did not impact the LoC. India thus made it clear that these internal measures did not imply any change in its territorial claims vis a vis China and Pakistan and had no impact on the LAC or LoC . 

In an address to the nation on August 8, Prime Minister Narendra Modi described the changes as the dawn of a new era for the people of Jammu and Kashmir. He added that Article 370 was depriving them of many rights because of non-application of certain central laws, including the right to education and minimum wages etc, and was an obstacle to their development. The new system would free the region of terrorism and separatism. Decades of dynastic politics had deprived the youth of J&K of the opportunity to lead from the front, which they would be able to do now. Like the Home Minister earlier, he said that once Jammu and Kashmir had undergone the intended transformation to peace and development, it could re-attain statehood. He laid out an elaborate agenda of economic progress, additional benefits for government employees in J&K, additional employment opportunities for the youth, development of tourism and transparent elections to the legislative assembly of the union territory of J&K. 

Pakistan's Reaction

Pakistan reacted in anger, but its response betrayed the lack of effective options and a bitter divide between Prime Minister Imran Khan and his political opponents, evident during the Pak Parliament debate. It announced the following steps after a meeting of its National Security Committee: downgrading of diplomatic relations (the Indian envoy in Islamabad was asked to leave), suspension of bilateral trade, review of bilateral arrangements and taking up the matter at the United Nations. Subsequently, the bus and rail services connecting the two countries were suspended by Pakistan. However, Foreign Minister Qureshi stated that Kartarpur corridor would not be affected. India characterized these measures as an attempt to present an alarming picture of bilateral ties to the world, asked Pakistan to review them and reiterated that the changes in the status of J&K were an internal affair. A resolution of the Pak Parliament rejected India’s “attempt to alter the disputed status” of Kashmir “as enshrined in the UNSC resolutions.” A Pak army statement expressed its resolve to go to any extent to help the Kashmiris. There is nothing in Pakistan’s largely symbolic and easily reversible retaliatory steps that India cannot live with. Suspension of trade may hurt Indian exporters, but will hurt the Pak economy even more, particularly by depriving its cotton textile and pharmaceutical industries of cheaper cotton and bulk drug imports from India.

International Reaction

In an initial statement, the United States of America, taking note of the Indian move and that India had described it as “strictly an internal matter”, called upon all parties to maintain peace and stability along the LoC and expressed concern about “reports of detentions” and urged “respect for individual rights and discussion with the affected communities.” A subsequent statement supported direct dialogue between India and Pakistan on Kashmir and other issues of concern.  

China’s first statement focussed on its own territorial claim by alleging that India had “continued to undermine China’s territorial sovereignty by unilaterally amending its domestic laws” and urging it to be “cautious in its words and deeds on the border issue.” In another statement, China expressed serious concern about the current situation in Kashmir, calling upon the parties concerned to exercise restraint, avoid actions that unilaterally change the status quo and calling upon them to peacefully resolve relevant disputes through dialogue and consultation. India counselled China not to comment on its internal affairs. During a subsequent visit to Beijing by Foreign Minister Qureshi, the Chinese Foreign Minister told him that the Kashmir dispute left over from colonial history “should be properly and peacefully resolved based on the UN Charter, relevant UN Security Council resolutions and bilateral agreement.” Pak media reports stated that China had also agreed to support Pakistan’s decision to approach the UN Security Council. During EAM Jaishankar’s visit to Beijing, Foreign Minister Wang Yi expressed concern over the current situation in Kashmir and opposed any unilateral action that complicates situation in the region. (EAM’s response is mentioned in the first paragraph above).

According to the OIC website, the OIC Contact Group on Jammu and Kashmir met in Jeddah on August 6 at Pakistan’s request. In a statement delivered on behalf of the Secretary General of the OIC, concern was expressed over the critical situation in Kashmir and the parties were encouraged to reach a negotiated settlement on the basis of UNSC resolutions and OIC Summit decisions. Subsequently, the General Secretariat of the OIC expressed concern at the reports of “curtailment of religious freedoms of Kashmiri Muslims” “including complete lockdown even on the auspicious occasion of Eid.” (India has been routinely rejecting such statements of the OIC). However, UAE, an important member of the OIC, viewed the Indian move as its internal matter.

The spokesman of the UN Secretary General said that the position of the UN on Jammu and Kashmir was governed by the Charter of the UN and applicable security council resolutions. The Secretary General also recalled the Simla Agreement, which states that the final status of Jammu and Kashmir is to be settled by peaceful means, in accordance with the UN Charter. Expressing his concern over reports of restrictions on the Indian side of Kashmir, which could exacerbate the human rights situation in the region, he called upon all parties to refrain from taking steps that could affect the status of Jammu and Kashmir.

Russia noted that the Indian move was carried out “within the framework of the Constitution of the Republic of India” and underlined the “bilateral” nature of the issue, as spelt out in the Simla Agreement and Lahore Declaration.

The Indian Move has not Violated any Bilateral or International Understanding

Pakistan’s objection to India’s move to change the status of Jammu and Kashmir within its constitution does not stand scrutiny as it has not violated any bilateral or international understanding entered into by India. The UN Security Council Resolution of August 13, 1948 regarding ascertaining the will of the people of Jammu and Kashmir on the future status of the state was  non-binding, adopted under Chapter VI of the UN Charter and, therefore, recommendatory in nature. It stipulated certain steps leading to the stage of ascertaining the will of people. One of the very first steps was withdrawal by Pakistan of its troops, whose presence constituted a material change in the situation, from the territory of J&K. Pakistan was also to “use its best endeavour” to secure the withdrawal of tribesmen and Pakistani nationals not normally resident in the state, who had entered therein to fight. Pakistan failed to fulfil these conditions, resulting in non-implementation of the resolution. Thereafter, over the years, Pakistan materially changed the situation further by unilaterally altering the political status and demography of the parts of Jammu and Kashmir under its illegal occupation ( both the so called “Azad Kashmir” and the so called “Gilgit-Baltistan”). It also ceded a part of the illegally occupied territory to China. This has rendered the UNSC resolutions utterly outdated. Moreover, in the Simla Agreement of 1972, Pakistan agreed to resolve all outstanding issues with India bilaterally. Therefore, India sees no role for the UN in the matter. In the Simla Agreement, the two countries agreed to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon. It was stated that pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation. It was further stipulated that in Jammu and Kashmir, the line of control resulting from the ceasefire of December 17, 1971 shall be respected by both sides without prejudice to their respective positions and neither side shall seek to alter it unilaterally. Over the years, Pakistan has observed the Simla Agreement in its breach by not only continuing to change the status and  demography of the parts of J&K, illegally occupied by it, but also by repeated attempts to internationalize the Kashmir issue, its Kargil incursion and violation of the LoC by conducting a proxy war across it. All that India has done is to change the provisions concerning J&K in its constitution. As mentioned above, India’s External Affairs Minister has stated that the abolition of J&K’s special status has no impact on the LoC. This clearly implies that India has not changed the situation vis a vis Pakistan, though India continues to maintain its claim over the areas of Jammu and Kashmir illegally occupied by it and ceded illegally to China. 

Manoeuvres at the United Nations 

On August 13, Foreign Minister Qureshi announced that he had written to the UNSC President to convene an emergency meeting of the Council to discuss the Indian actions which, he alleged, violated UN resolutions on Kashmir and threatened not only regional peace, but world peace. According to Pak press reports, Pakistan had made the move under Article 35 of the UN Charter, as per which any member can bring a dispute or situation, which might lead to international friction or give rise to a dispute, to the attention of the Council for it to determine whether the dispute or situation is likely to endanger maintenance of international peace and security. China backed Pakistan’s request. Simultaneously, Pakistan attempted to create a sense of crisis. As in the past, it also tried to stoke American anxieties by saying that in the face of alleged threat from India, it might have to redeploy its troops from the Afghan front to the eastern border. (Interestingly, Pakistan was chided by its protégé, the Afghan Taliban, who opposed linking the Kashmir issue to Afghanistan and their country being turned into a theatre of competition between other countries!).

Finally, the UNSC met in an informal, closed door meeting on August 16 for exchange of views among members regarding the Chinese and Pakistani requests. On its conclusion, the Chinese Ambassador claimed that the UNSC members were concerned about the human rights situation in Kashmir and wanted the parties concerned to refrain from taking any unilateral action that might further aggravate the tension. He alleged that India’s action had also challenged China’s sovereign interests and added that the status of Kashmir was still undecided. The Pakistan Ambassador (Pakistan did not participate in the closed door meeting, something it would have been able to do along with India, had the meeting been a formal one) described the meeting as vindication of Pakistan’s stand that Kashmir is an “international dispute.” The Indian Ambassador set the record straight by pointing out that the two countries had tried to pass off their national position as the opinion of the Security Council. Only the President of the Council (Poland at the moment) could speak in its name and no outcome of the meeting had been announced by the President. The Indian Ambassador reiterated that the changes made by India were an internal matter, India stood by the Simla agreement and was willing to hold dialogue with Pakistan once it put an end to terror. He also stated that members of the Council had appreciated gradual removal by the Indian authorities of the restrictions imposed in J&K earlier this month. It is clear that the Chinese could not muster the required majority in the Council in favour of their position or the holding of a formal meeting. Therefore, their and Pakistan’s claims sound hollow. We may not have seen the end of China and Pakistan’s efforts to internationalize the issue. Pakistan has threatened to take the issue of human rights in Kashmir to the International Court of Justice, though such action would raise serious questions regarding jurisdiction of the court in the matter. However, these are not likely to impact our interests in any material fashion.  

India's Primary Challenges

International reaction, which India today is better equipped to handle than ever before, is not our primary challenge in relation to Kashmir. Our substantive challenges are: Pakistan’s continued interference to spread terror and mayhem in J&K and alienation among the populace in the valley that has provided Pakistan a fertile ground for its nefarious activities. 

Pakistan’s questioning of the accession of J&K to India did not stem from the special status of Jammu and Kashmir and will outlast it. So will its terror card, which is the only way it can keep its dubious Kashmir agenda alive. Its terror against us stems from the nature of the Pakistani state: dominance of the army and its institutional need to sustain the India bogey through low level tension with India. There is no sign of a change in the nature of the Pakistani state in the foreseeable future. The army seems to have entrenched itself even more deeply in higher decision making under Imran Khan. There is no silver bullet to put an end to the Pak terror. It has to be a continuous effort, quite independent of scrapping of J&K’s special status, combining international pressure with deterrence and punitive measures, when necessary.

Internally, our challenge is to ensure peace in J&K, not only in the immediate, but to build durable peace there, for our failure to do so could encourage external meddling. Each phase of peace there in the past has been followed by renewed violence. J&K’s special status notwithstanding, India has all along been unwavering regarding the finality of its accession to the Indian union. Abolition of this status has firmly ruled out any hope of dilution of the integration process that has taken place over the years, but will not be sufficient by itself to win over people in the valley and build durable peace. With the mainstream Kashmiri parties marginalized, another challenge would be to build a new leadership, with mass following, capable of weaning the people away from the poison spread by Pakistan/its proxies as well as vague notions of “azadi” etc. and make them buy into a future of development and emotional integration with India. Implementation of the elaborate agenda of progress announced by the Prime Minister, for which peace would be a sine qua non, presents us both with an opportunity and a challenge.


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About the author

Ambassador Sharat Sabharwal
Former Indian Ambassador to Pakistan and Uzbekistan and Distinguished Fellow, Ananta Centre

Mr Sharat Sabharwal joined the Indian Foreign Service in 1975. After serving in various positions in the Permanent Mission of India to the UN in Geneva and the Indian Missions in Madagascar, France and Mauritius, he was Director/Joint Secretary in the Ministry of External Affairs in New Delhi from 1990 to 1995. The positions held by him subsequently have been Deputy High Commissioner of India in Pakistan (1995-99), Deputy Permanent Representative of India to the UN in Geneva (1999-2002), Ambassador of India to Uzbekistan (2002-2005) and Additional Secretary/Special Secretary in the Ministry of External Affairs (September 2005-March 2009).

Mr. Sabharwal was High Commissioner of India to Pakistan from April 2009 to June 2013.

He was appointed Central Information Commissioner in November, 2013 and served in this position till September, 2017.
Mr. Sabharwal has been Deputy leader/member of the Indian delegations to the UN General Assembly, the erstwhile UN Commission on Human Rights, International Labour Conference and World Health Assembly. He was also the Deputy Leader of the Indian delegation to the International Conference of the Red Cross and Red Crescent held in Geneva in October 1999 and member of the Indian delegation to the World Conference against Racism, held in Durban in September 2001.

Mr. Sabharwal holds a post graduate degree in Political Science. He speaks English and French besides Hindi, Urdu and Punjabi.

Mr. Sabharwal has been an author at the Indian Express, The Hindu, India Today, The Tribune and The Wire.