Home Global Village Separate constitution for Jammu and Kashmir was an ‘aberration’ – new Indian...

Separate constitution for Jammu and Kashmir was an ‘aberration’ – new Indian view


Dr. Syed Nazir Gilani |

India is in a state of sin in its administered part of Kashmir. In obedience to UN Charter, UN Security Council resolutions, Kashmir report of the UN High Commissioner for Human Rights and report by the UN Secretary General on the use of Kashmiri children as informants and spies for Indian forces, India should be pressured to render a good account of itself in respecting the Human Rights in Kashmir. The claim of Government of India and Indian schools of opinion on the status of its relationship with Kashmir has been fully examined by The State Autonomy Committee set up in November 1996 and its report published in July 2000.

The committee comprised of Dr. Karan Singh as its Chairman and Mohi ud din Shah, Abdul Ahad Vakil, Abdul Rahim Rather, Piyaray Lal Handoo, Bodh Raj Bali, Molvi Ifkikhar Hussain Ansari, Kushok Thiksay and Teja Singh as its Members. The report has finalised that the State has a limited and provisional accession with India but the State has never merged in the Union of India. The report has been published by General Administration Department of Jammu and Kashmir Government and has been adopted by both houses of Jammu and Kashmir assembly.

The process of life in Kashmir will change into a quality of life. Government of Pakistan needs to take a strong notice of these developments. It should set up a seventh Task Force to work for “rights and dignity, security and self-determination” of the people of Kashmir.

On this side of the cease fire line in Azad Kashmir, Gilgit and Baltistan, Pakistan and at the international level, we genuinely argue that even the limited and provisional accession has been surrendered by India at the UN on 15 January 1948 for a UN supervised vote. Indians are faced with a political and armed resistance in Kashmir. They are facing the international pressures and a regular taunt of Kashmiri diaspora at various forums. There is something that has helped India to nudge pass these pressures and keep her nerve on Kashmir. Kashmir optics is one of the reasons.

Indians were not adequately challenged by the National Kashmir Committee for the last 10 years. It was considered as a mere ‘scarecrow’ without any serious threat. The other two Kashmir Committees in the National Assembly and Senate of Pakistan could not make any impact either. The joint India-Pakistan statement in July 1997 in Islamabad disturbed Kashmir from its core position.  It became an include in eight other outstanding issues.

Read more: Is India committing war crimes in Occupied Kashmir?

These optics in diplomacy and politics, have not helped the political and armed resistance in Kashmir. India has continued with her efforts to dishonour, disable and humble, the people in the Valley. Muslims are exposed to unprecedented violations of human rights and Kashmiri youth have been profiled into five categories, for being killed. India has started using proxies to seek to disturb the demography of Kashmir. Supreme Court of India has deferred the hearing on 35A to January 2019.

Indian Government is using proxies for building up a popular sentiment and influence the minds of the judges in the Supreme Court. One such public pronouncement came from National Security Advisor Ajit Doval on Tuesday 4 September 2018 in Delhi. Speaking at the launch of a book about India’s first Home Minister Sardar Vallabhbhai Patel, Doval said that the separate constitution for Jammu and Kashmir was an ‘aberration’, and emphasised that sovereignty can never be ‘diluted and ill-defined’.

The report has been published by General Administration Department of Jammu and Kashmir Government and has been adopted by both houses of Jammu and Kashmir assembly.

National Security Advisor’s statement comes at a time when the Supreme Court is hearing petitions challenging the constitutional validity of Article 35-A of the Constitution of India, which grants special rights and privileges to the state legislature of Jammu and Kashmir, including the power to define ‘permanent residents’ of the state. The Article also prohibits non-residents of Jammu and Kashmir from buying property in the state and guarantees employment and education-linked reservation for J&K residents. Ajit Doval occupies a special place in BJP Government. He has served in Kashmir as IB officer and as IB chief has never kept any reserve of sympathy for the people of Kashmir.

The role and control of IB in Kashmir is partially discussed by former RAW chief A S Dulat at page 205 in his book “Kashmir-The Vajpayee Years”. Ajit Doval’s statement challenging the separate constitution of Jammu and Kashmir, is an extension of the mind set shown by RSS militant volunteers who marched on the streets of Lahore in December 1931 in support of the Maharaja of Kashmir and sneaked into Kashmir to fight against the Kashmiri Muslims. Ajit Doval is well read and a person of enormous intellectual strengths. But his communal approach on Kashmir makes him very mean and his palaver on Kashmir has no merit.

Read more: What Imran Khan means to Indian occupied Kashmir

National Conference, PDP, State Communist Party and other pro India political parties should realise that Delhi might have first come after Hurriyat, non-Hurriyat political parties and resisting youth of Kashmir, in 1990, Ajit Doval has now made it clear that there are no exceptions. It is the Constitution of Jammu and Kashmir, which these parties are supposed to defend. If we are prepared to rewind the clock to 31 March 1959, and reinstate the “Entry Permit” law Ajit Doval and Prime Minister Modi shall have to seek a ‘visa’ to enter into Kashmir. We have UN Resolutions on our side to reinstate the entry permit law for Indian citizens.

Ajit Doval as an IB officer in Kashmir during the height of armed struggle and later as IB chief has dealt with the people of Kashmir through the strengths of State machinery. Repression has no future and Doval’s statement on Jammu and Kashmir Constitution has no merit. Government of India has accepted at the UN that “the Government of Jammu and Kashmir is a sovereign Government.”

India has started using proxies to seek to disturb the demography of Kashmir. Supreme Court of India has deferred the hearing on 35A to January 2019. Indian Government is using proxies for building up a popular sentiment and influence the minds of the judges in the Supreme Court.

At the 767th Meeting of the UN Security Council held on 8 February 1957, the representative of India in para 143 has stated, “Then we come to paragraph 3 (a), which says: “The Secretary-General of the United Nations will, in agreement with the Commission, nominate a Plebiscite Administrator who shall be a personality of high international standing and commanding general confidence. He will be formally appointed” -and this again is a very important sentence- “to office by the Government of Jammu and Kashmir.”

Indian statement goes on to add, “Why? Because the Government of Jammu and Kashmir is a sovereign Government. It alone has authority over the territory. And this is what Sir Owen Dixon-as he was entitled to do in his mediatory function, although he was ultra vires of this agreement-tried to shift: “He will be formally appointed to office by the Government of Jammu and Kashmir.” It was perhaps this sentence in the resolution-namely, that the Plebiscite Administrator “will be formally appointed to office by the Government of Jammu and Kashmir” -that Mr. Menzies had in mind; he did not see any reason at all why the Government should be displaced.”

Read more: India’s muscular Kashmir policy will reap no harvest – Murtaza Shibli

In para 144 representative of India goes on to flag the status of the Government of Jammu and Kashmir. He adds, “ Paragraph 3 (b) of the resolution states: “The Plebiscite Administrator shall derive from the State of Jammu and Kashmir the powers he considers necessary for organizing and conducting the plebiscite and for ensuring the freedom and impartiality of the plebiscite.” Nothing can be nearer to the classical definition of sovereignty than this phrase “shall derive from the State of Jammu and Kashmir the powers … “. Under the general, classical definition, the sovereign is the person from whom all powers flow. I do not say that there can be no modifications of that definition, but I do say that it is the classical definition.”

Repression has no future and Doval’s statement on Jammu and Kashmir Constitution has no merit. Government of India has accepted at the UN that “the Government of Jammu and Kashmir is a sovereign Government.”

In view of the judgement of May 1953 in Magher Singh vs State of Jammu and Kashmir  case rendered by a division bench of High Court comprising Janki Nath Wazir CJ and Shahmiri J  and the statement made by representative of India at the UN Security Council, National Security Advisor of India’s belief that “Jammu and Kashmir where the constitution was … in a truncated form, and another constitution of J&K continued to exist, which is an aberration, which I think Mr RPN Singh has brought out in his book, very vividly,” has no merit. The bench has laid down that Jammu Kashmir was an independent State from August 14 to October 26, 1947.

India controls only a part of the State territory and the State is under a caution of UN Security Council Resolution of 30 March 1951. The limited and provisional accession is surrendered by India at the UN Security Council for a UN supervised vote.

Former RAW chief describes IB at page 205 of his book, “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”. If Government of Jammu and Kashmir reinstates the Entry Permit rule, all such inconveniences would be automatically filtered. The process of life in Kashmir will change into a quality of life. Government of Pakistan needs to take a strong notice of these developments. It should set up a seventh Task Force to work for “rights and dignity, security and self-determination” of the people of Kashmir.

The author is President of London based NGO JKCHR, which is in special consultative status with the United Nations. He is an advocate of the Supreme Court and specializes in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. The views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space. 

Facebook Comments