In 1948, Sir Gerald Fitzmaurice, the legal advisor to the British Foreign Office, wrote in his legal opinion that Kashmir's accession to India was not capable of finally settling the status of the disputed region Opinion | Fozia Nazir Lone
On August 5 2019, while Kashmir was under complete lockdown, the Indian government led by the far-right nationalist Bharatiya Janata Party , unilaterally, in a series of political manoeuvres, scrapped the special status of Jammu and Kashmir, a UN-recognised disputed region between India and Pakistan.
Many, including Indian economist and philosopher Amartya Sen, have called the BJP's actions unconstitutional as it undermines India’s status as a democracy. The BJP’s unlawful actions can simply be understood as a process of implementing the ideology of its founding father Syama Prasad Mukherjee, who wanted to create an undilutedBefore scrapping the special status of Kashmir, the Jammu and Kashmir State legislative assembly was not consulted, which was a requirement under Article 370.
The immediate consequence of scrapping the special status of Kashmir reopens the historically unresolved issue of the legal validity of accession of Kashmir to India under the Instrument of Accession , signed on October 26 1947. It was this agreement that was the basis of the relationship between India and Kashmir.
In order to govern the state, the Kashmir Constituent Assembly was formed and the Constitution Order 1954 was passed to execute the 1952 Delhi Agreement in Kashmir and extend Indian citizenship to its 'permanent residents’. This also led to the creation and application of Article 35A of the Indian constitution which primarily protected Kashmir residents' rights in relation to immovable property and employment.
Clearly, the parties to the Kashmir dispute, under the rule of estoppel within international law, are barred from altering this legal position by any unilateral actions. Indian unilateral actions will also affect its regional cooperation with its nuclear neighbours China and Pakistan.
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