Article 370: Flouting Treaty is Easy, India Learns from US & China

China and US have demonstrated that flouting treaties doesn’t matter. India is learning from them.

Jawaharlal Nehru and Maharaja of Kashmir, Hari Singh. Photo altered by The Quint.

(Photo Courtesy: Dutch National Archives, Columbia.edu)

India has always asserted its claim to the former princely state of Jammu & Kashmir on the legal basis of the Instrument of Accession signed by Maharaja Hari Singh. By definition this was an agreement between two entities, with mutual guarantees. In most cases of princely states acceding to India a later merger was negotiated, but in the case of J&K the agreement was enshrined in Article 309 – which would later become Article 370 – of the Constitution, delimiting the way in which the Indian state could extend laws to J&K, and by which process.

From Sheikh Abdullah’s Dismissal in 1953 to Today

In his magisterial work, “Article 370: A Constitutional History of Jammu and Kashmir” AG Noorani has noted that this was contentious, with the framing of the powers given to the President in effect giving J&K less autonomy than other states rather than more, an issue that Sheikh Abdullah raised with Jawaharlal Nehru and VP Menon immediately.

This would be the power under which Abdullah would be dismissed from his office in 1953, and it is the same power being used by the government today to fundamentally change the make up of the state of J&K. In the case of the first, though, the façade remained. The J&K Constituent Assembly, elected in 1951, continued to function, and would ratify the accession to India in 1954, and pass the state’s Constitution, as guaranteed under Article 370, in 1957.

Today that fig leaf has been cast aside. The J&K State Assembly has not been consulted. Its elected members are presumed to be under house arrest. There is not one shred of popular legitimacy to the decision from J&K today.
It is not even possible, given that all communications in Kashmir, except security channels, have been cut off.

How China Violated the Seventeen Point Agreement With Tibet

In many ways this resembles the violation of the Seventeen Point Agreement signed between representatives of Tibet and China in 1951, which guaranteed local autonomy and non-interference from Beijing in local political systems. This was repudiated by the Dalai Lama when he fled into exile in 1959. By that time the Chinese government had violated every article of the agreement.

Even if the Dalai Lama did not repudiate it, the agreement had lost any legitimacy. In other words, the principal document between the two parties, which bound Tibet to China, was rendered null and void. This fact is made most obvious by the Chinese government’s gradual rejection of the Seventeen Point Agreement as the basis of the legitimacy of its rule in Tibet. Its One China Policy is predicated not on any agreement, but on the argument that Tibet was always part of China. It is predicated on force and power alone.

No court in China will ever challenge the Chinese Communist Party on this issue since the judiciary is subservient to the Party in China. In India, while this may not be the case, it will require a very courageous Supreme Court bench to challenge this ruling.

Native Americans and USA’s “Trail of Tears”

The case of the other large democracy, the United States, is revealing. In 1830, the US passed the Indian Removal Act, which mandated the forced removal of five tribes of Native Americans from their lands (as well as any African-Americans or “non-Whites”. These tribes should have been protected by the agreements that they had signed with the United States, and the US Supreme Court, in the case of Worcester vs Georgia in 1832, declared that the state of Georgia had no power to impinge on the sovereign treaties signed between them and the Cherokee nation (one of the five groups).

Neither Georgia, nor the government of the United States under President Andrew Jackson paid any heed. Gold had been discovered in the area and that was more important than a point of law. Jackson is reported to have declared that the Supreme Court “may have passed a law, let it implement it”. The ensuing ethnic cleansing, called “The Trail of Tears”, led to the deaths of thousands.

People who had signed treaties in good faith or because they had no choice – like the Tibetans – found that there rights had no meaning when faced by a majoritarian, authoritarian leadership with no respect for law elected to power.

Undermining Legitimacy of Local Sentiments Has Its Costs

In the case of Kashmir we will risk replaying some parts of these processes. Both the US and China can suggest that using force in these circumstances rather than abiding by agreements and incorporating local sentiment has cost them nothing. Neither the Native American tribes nor the Tibetans pose any serious risk to their rule. Nevertheless the Indian wars in the US continued for nearly a century devastating a poorer, less populous people as European immigrants continued to pour in, to kill and die.

In China, the lack of legitimacy of its rule, however much the governments of the world mouth the “One China Policy”, means that it continues to spend huge amounts of resources controlling every aspect of the lives of Tibetans – from religious institution to whether they can have the freedom to graze their animals or be forcibly resettled in colonies.

In 1989, after the death of the last Panchem Lama, a search committee was created for finding his successor. The head of the search committee, appointed by Beijing, was Chadrel Rinpoche. Despite being vetted and monitored by the CCP, he kept open his own lines of communications with the Dalai Lama, and they identified the successor, much to Beijing’s wrath. That child has never been seen again, and the Chinese state has appointed its own Panchem Lama, who has had limited credibility.

No matter how strong the central government, the legitimacy of incorporating local sentiment – called democracy - matters, and throwing it away has its costs.

“Power flows from the barrel of a gun”

What this step does is to deligitimise any “mainstream” Kashmiri political leader. For decades the dissidents and militants have claimed that they are nothing but puppets, willing tools in the enslavement of their own people. We may hold on to Kashmir, we have the military power to do so, and are much stronger than we were when the insurgency broke out in 1989, but we will not be able to have a Kashmiri leadership that is seen as legitimate by the people that live there.

Like Chadrel Rinpoche they will be forced to seek legitimacy outside the spectrum of approved leadership, among the people the state has declared the enemy. This is a death knell for any hope of peaceful political change, of hopes of “normalcy” by any means other than the raw exercise of brute power.

It seems that, in the end, the government believes less in the law or Constitution values, as in Mao, who said, “Power flows from the barrel of a gun.”

That gun is all we now have left.

(Omair Ahmad is an Indian writer whose book Jimmy the Terrorist was shortlisted for the 2009 Man Asian Literary Prize. He tweets at @OmairTAhmad. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)