The recent onslaught of blinding male and female children with spray of pellets has left a contingent of disabled children as living evidence of human rights violations that confronts public. Human rights violations of this magnitude weaken the State sovereignty that will shield the defense to offer self-determination.
Two questions surface in the minds of people each time the fire of Kashmir politics flares up. Are people not convinced about the finality of the historical and constitutional title of the State Jammu & Kashmir? The second question concerns basic right to life covenants and seeks answers to escalating human rights violations. The sum total of turmoil converges on the two simple pleas. There is a direct corroboration on affording right to self-determination and the historical title of Jammu & Kashmir State and the status of Human Rights. As a consequence both these are antecedent factors that influence an outcome for an eventual solution in Kashmir.
In trying to assign this legal premise to explain the political narrative we all understand what is the meaning behind slogans that reverberate in public? At the conclusion of skirmishes, public forums debates, so called separatist calls, shut down protest rallies and media, violence related confrontations, outcome of the protest demonstrations, all slogans converge on demands for right to self-determination. Indian administration refuses to accept these pleas and impose their response with arguments backed by power and military force. The backbone of Indian defense is a firm stand on the complete right of ownership and title of the J&K State. International law fully supports that view and completely annuls the right of self-determination that people demand. India can invoke state sovereignty rights and trample down the revolt even though they are armed with the supreme righteous demand right to self-determination. Indian politicians name Kashmir as the head that is an integral part of their body or utoot ung meaning insuperable part of India.
This is where the first question confronts people. In the event they are a part of the larger entity of India then they cannot demand right to self-determination. Are they an integral part? No one has ever explained and given a gist of legal analysis of the genesis of the argument. Jammu & Kashmir was a completely identifiable legally independent country on 15t August 1947. The claims and counterclaims of Pakistan and India were debated in United Nations, Commonwealth Legal cell, by emissaries of UNCIP and in Simla, Tashkent, Agra, Lahore and other forums leading up to accords and agreements. A verdict on the legal debate of veracity of transfer of legal and constitutional title of Jammu & Kashmir never came to light. It is even as today not established how or where the transfer took place? Do we still decree that people of Jammu & Kashmir are denied their right to self-determination?
The second question that concerns people is the unremitting human rights violations they are subjected to on a daily basis and interminable for many decades. The gravity of the magnitude well known to the world and documented in all repositories of member countries can be surmised with some published figures stating 94669 killed, custodial deaths of 7,081, prisoners 141,166, homes demolished in operations 107,969. There is a burning issue of half widows that concerns the society and 22,836 have disappeared, gang raped women still alive numbers in the region of 10,872. The recent onslaught of blinding male and female children with spray of pellets has left a contingent of disabled children as living evidence of human rights violations that confronts public. Human rights violations of this magnitude weaken the State sovereignty that will shield the defense to offer self-determination. This second question that remains underpins the plaint of the people to claim self-determination even if proven to be a part of the dominion. It also remains un-answered when these violations will stop? When will the prisoners see the light of the day and when will an apology be heard for the punishments ultra vires inflicted on people. Does this diminish the role of State sovereignty and therefore become an international issue to exhort the right to self-determination?
A causal elucidation of laws germane to this topic remains valid. Fundamental rights from part 111 of Indian Constitution apply to citizens of J&K if considered as integral to India and right to Freedom is afforded in A-19 to 22. PSA like laws are Ex Post Facto and A-20 absolves them. Civilians have been killed in non-combatant situations reported in GK recently. A-21 prevents encroachment on protection of life and ‘no one will be deprived of his life or liberty. Does that apply to citizens of Kashmir?’ There are provisions for constitutional remedies in A-32 and applications have been made for infringement of fundamental rights.
The two questions fully endorsed and consummated will be a beginning to end the conflict in Jammu & Kashmir. It will save more lives and era of prosperity and happiness will dawn as a glimmer of light from the horizon.
(The author can be contacted at firstname.lastname@example.org www.Kashmircaselaw.org)
News Updated at : Thursday, January 11, 2018
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