The abrogation of Article 370 has been accompanied by many colossal whoppers about its politics and history, and deliberate disinformation about the consequences for legal and constitutional rights and status. Yet in Kashmir, from where I write this, none of it matters. It is all of a piece with India’s long history of lawlessness and lies in the name of law. In the face of overwhelming ontological insecurity and terrifying state brutality, no one, not even the lawyering community (such of them as are not busy filing habeas corpus and bail petitions or themselves hiding from arrest), can be bothered to pore over the niceties of how exactly the deed was accomplished. With no Internet access many Kashmiri lawyers I speak to have not so far been able to read the full text of the two Constitutional Orders that altered their fate. What, after all, is a legal sleight of hand or an elaborately constructed constitutional lie when you have not spoken to a beloved daughter in two months? Who cares if Tulsi Gabbard (“who?”) or the late Arun Jaitley (“he died?”) misrepresent the nature of property rights that daughters enjoyed under your one-time, so-called semi-autonomous legal system? Many had not heard that this was even a thing. When I informed them, seething with indignation, they shrugged. “Yes” they said. “They lie.”
Author: Shrimoyee Nandini Ghosh
Shrimoyee is a lawyer and legal researcher currently based in Delhi . She lived and worked in Srinagar from 2012-2018, researching and writing on issues of militarisation, state violence and emergency laws
In Part 2 of An Essential Guide to Dismantling Kashmir’s “Special Status”, Shrimoyee Nandini Ghosh looks at what the dismantling of Kashmir’s “special status” means in the realm of the international order: the laws of nations, wars and our shared humanity. The question of Kashmir’s international legal status has been an extremely contentious one, and one on which there has been very little serious academic engagement. In India, most legal experts and opinion makers have seemed content to echo, either by their words or their silences, the position of the Indian state that Kashmir is primarily a constitutional question, in other words an “internal matter”. But in the midst of the legal upheaval wrought by the neutering of Article 370, several previously verboten terms – ‘Occupation’, ‘Annexation’, ‘Colonialism’, ‘Right to Self Determination’, drawn from the realms of international law and politics, are now being used in the Indian public sphere to describe, debate, or decry the events of 5 August, 2019. In this essay, Shrimoyee unpack some of these terms and address the question of the implications of the constitutional changes for Kashmir’s disputed legal status in International Law.
The tortuous thicket of laws, constitutional provisions, presidential orders, political history and legal mystifications surrounding Article 370 and Article 35A make it difficult to navigate through recent debates about its abrogation in an informed way. This series of three essays by Shrimoyee Nandini Ghosh, lawyer and legal researcher, aims to be a somewhat eclectic guidebook— at times proffering a no frills step-by-step road map, at others traversing some rather more unfrequented and adventurous legal diversions. In this first essay, Shrimoyee provides a legal-historical guide to terms like 370, 35(a) and the tricks, which were played to make these history.”