Re-colonisation of Jammu and Kashmir and the Right to Self-determination

Abstract

Abstract On 5 August 2019, India unilaterally ended the autonomous status under Article 370 of the Indian constitution 1949. The state of Jammu and Kashmir (j&k) was established under the terms of the Instrument of Accession by the Ruler of j&k. To change the demographic composition of j&k, Article 35A of Indian constitution 1949 was also abolished and new domicile rules were introduced paving the way for non-Kashmiri Indians to settle permanently in j&k. Under the Jammu and Kashmir Reorganisation Act 2019, Kargil and Leh districts were cut from Jammu and recategorized as Union Territory of Ladakh and the state of j&k was relegated to a Union Territory directly governed by the central government. On 5 May 2022, a delimitation report was published giving more seats to Hindus compared to Muslims against the population criterion. This article argues that India had started re-colonisation of j&k since October 1947. Eliminating its autonomous status in August 2019 was not the starting but a tipping point of the re-colonisation. After decolonisation of British India in August 1947, major Indian states such as Hyderabad; Junagadh and j&k were given the option to join India or Pakistan. India saw this as a ‘grave threat’ to her organic unity and invaded Hyderabad on 13 September 1947; j&k on 27 October 1947 and Junagadh on 9 November 1947. It is argued that India secured accession from the Ruler of j&k under compelling circumstances and on the condition that a free and impartial plebiscite would be held to ascertain the wishes of Kashmiri people. Since 1947, the pledge of plebiscite did not materialise. As freedom from colonialism has become a jus cogens, it is argued that the United Nations (UN) and its members have erga omnes obligations to respect and support the right to self-determination of the Kashmiri people.