On 16 March 1846 the people of Jammu and Kashmir woke up to have gone into sale at the hands of British and passed on to Maharaja Gulab Singh. An area of 84,471 sq. miles and 2½ million people along with their hopes, aspiration, dreams and all that was essential for their moral, intellectual and economic growth were made over to a Hindu Raja. One could say it was a bad year – “annus horribilis” in the lives of the people of Kashmir.
Life turned over for every Kashmiri Muslim because he was introduced to pay unprecedented taxes on all spheres of life and on each item of daily use, so that Maharaja Gulab Singh could recover the seventy five lakh rupees paid for the purchase. The sale price was recovered in the first two years of the purchase. Then Kashmir State turned into a Marks & Spencer Group for Maharaja until after 100 years in May 1946, Maharaja faced “Quit Kashmir” Movement in Kashmir.
The year 2019 would be remembered in the history of Jammu and Kashmir and in the history of Pakistan as another “”annus horribilis” for the people of Kashmir and for good neighbourly relations between India and Pakistan and for peace in the region. On August 5 Government of India turned turtle and placed the people in the Valley under curfew and on 31 October 2019 decided to savage the territorial history and integrity of the State. It was dismembered into two Union Territories and paths were cleared to bring about a demographic change in the Muslim majority State.
Maharaja of Kashmir entered into a limited accession with India and Maharaja ceded the areas of Defence, External Affairs and Communication to the Indian administration. There has never been any merger. Even this limited accession of 80 days from 27 October 1947 to 14 January 1948, was rigorously contested by the People of Kashmir and the Government of Kashmir. On 15 January 1948 India surrendered this accession at the UN Security Council for a UN supervised vote. Under the terms of accession, Maharaja retained the residual sovereignty of the State and Indian Parliament could not make any law for Kashmir, without the approval of the State Legislative Assembly.
India had continued to rule the State through its domestic intelligence network, Intelligence Bureau, as revealed by RAW chief A S Dulat in his book “Kashmir-The Vajpayee Years”. On page 205 RAW chief writes, “The IB had a sinister reputation in the Kashmiri mind. Part of it was because since Independence, the IB had basically been running Kashmir, advising the home ministry and reporting directly to the prime minister on whatever happened there”. But it had never had the courage to play foul, disrespect the elected assembly – by dissolving it and finally paving way for a Presidential rule.
Governor dissolved the State assembly on 21 November 2018. The proclamation issued by the Governor on 20.6.2018 ceased on 19.12.2018 after six months. Hence, on the recommendation of Governor and having regard to the prevailing situation in the State, President issued a proclamation promulgating President’s Rule in J&K under article 356 of the Constitution of India. Government of India took two decisions in her own favour. All attempts made by Kashmiri political parties to stake claim for majority and to form an alliance government were frustrated by the office of the Governor.
The actions taken by the Government of India (Indian Parliament) in regard to people and habitat of Kashmir are ‘coram non judice’ and a serious climb down from Indian commitments made to the people of Kashmir, Government of Pakistan, Government of Britain and to the world at the UN Security Council. UN Security Council Resolutions 38 and 91 do not allow Government of India to take the kind of actions, it has taken on 5 August and 31 October 2019.
The two reports of June 2018 and July 2019, by UN High Commissioner for Human Rights, on the Human Rights Situation in Jammu and Kashmir, define the territories of the State ‘currently and temporarily’ administered by India and Pakistan and these two reports have also defined the ‘right of self-determination’ of the people of Kashmir. Indian actions are a serious violation of terms of accession agreed with the government of Jammu and Kashmir, agreements made with government of Pakistan and the commitments flowing from UN Security Council Resolutions on Kashmir.
The situation leaves people of the State and the Kashmiri Diaspora, free to seek the vacation of Indian occupation (previously referred as Indian administration), using all possible means of self-defence and to undo colonial control. It leaves government Pakistan equally free to invoke the terms of “Stand Still Agreement” of August 1947 made with the Government of Kashmir and use military force, against Indian action of 5 August and 31 October 2019.
Government of Pakistan may also seek to invoke the provisions of various bilateral agreements. United Nations could also be asked by the Secretary General or Government of Pakistan, to consider cognisance under article 103 and a collective action under article 55 and 56 of UN Charter. “The Stand Still Agreement” of August 1947 with the Government of Pakistan predates, the “Kashmiri accession” of October 1947 with India.
The Stand Still Agreement” of August 1947 with the Government of Pakistan predates, the “Kashmiri accession” of October 1947 with India
Pakistan has assumed a shared constitutional role in Azad Kashmir, to discharge its duties under UNCIP Resolutions in Azad Kashmir. Its future position on Kashmir, is further elucidated in article 257 of the Constitution of Pakistan. Therefore, Government of Pakistan could assist the Government of Azad Kashmir to reinstate its “Azad Kashmir Forces”, duly referred in UN Security Council debates on Kashmir. These forces, which were merged into Pakistan forces, could be set free as Kashmiri forces, for the defence and offence in the Indian occupied part of Kashmir.
Azad Kashmir forces have fought during the World War II and have remained important component of UN Forces as well. United Nations could be asked to be part of the re-organization of these forces. Pakistan has explained the character of Azad Kashmir Forces at the 229 Meeting of UN Security Council held on 17 January 1948. Pakistan has said, “The Azad Kashmir forces are almost wholly composed of the sons of the soil, and even foreign observers have testified that, wherever they have gone, they have been welcomed as forces of liberation. We are ready to exercise all our influence on the Azad Kashmir forces to stop fighting and to see that any tribesmen with them are not only stopped from fighting, but are made to leave Kashmir. These tribesmen, it should be remembered, are the kith and kin of those for whom they are fighting”.
Pakistan has a strong constituency of support in the Valley, in Azad Kashmir, in Gilgit and Baltistan, in Kashmiri Diaspora and is a party to the dispute. Above all Pakistan is a member nation of United Nations as well. Pakistan has accepted to discharge its responsibilities under UNCIP Resolutions in Azad Kashmir. Unfortunately, Pakistan has lagged behind in developing, perfecting and sensitising a reliable narrative in accordance with the jurisprudence of Kashmir case, in particular, in accordance with the jurisprudence of UN Resolutions and UN mechanism on Kashmir.
Indian actions in August and October 2019 are a coram non judice and have no merit. Kashmir is a legal case and leaving it to street politics, for so long, has been an error of judgement. We need to revert back to the exhaustion of article 33 and seek to raise the bench mark to article 103 of the UN Charter. It would be helpful if we dispense with part AJK Assembly and convert it into a Council of Experts and institutionalise the wisdom of Section 8 of Azad Jammu and Kashmir Government Act and Section 11 of Act 1974.
The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.
