Dr. Syed Nazir Gilani |
India is in a state of sin in its administered part of Kashmir. In obedience to the 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 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 finalized 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 the General Administration Department of Jammu and Kashmir Government and has been adopted by both houses of Jammu and Kashmir assembly. 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 international pressure and a regular taunting by Kashmiri diaspora at various forums. There is something that has helped India to bypass these pressures and keep its nerve on Kashmir. Kashmir optics is one of the reasons. In the last 10 years, Indians were not adequately challenged by the National Kashmir Committee. It was considered 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 one of eight other outstanding issues. These optics in diplomacy and politics have not helped the political and armed resistance in Kashmir. India has continued with efforts to dishonor, disable and degrade, 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 disturb the demography of Kashmir. The Supreme Court of India has deferred the hearing on Article 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 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 the BJP Government. He has served in Kashmir as an IB officer and as the IB chief and has never kept any reserve of sympathy for the people of Kashmir. The role and control of IB in Kashmir are 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 mindset 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 highly biased and his palaver on Kashmir has no merit. The National Conference, PDP, State Communist Party, and other pro-India political parties should realize that Delhi might have first come after Hurriyat, non-Hurriyat political parties and the 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.
Read more: Bilateralism between India and Pakistan
And 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 the IB chief has dealt with the people of Kashmir through the strengths of the State machinery. Repression has no future and Doval’s statement on Jammu and Kashmir Constitution has no merit. The government of India has accepted at the UN that “the Government of Jammu and Kashmir is a sovereign Government.”
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 person 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.”
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 that 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 to that definition, but I do say that it is the classical definition.”
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. The 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.
Kashmir & the World: A Historical Kaleidoscope
The people of Kashmir and the habitat have been described by Dr. P Graham, the UN representative for India and Pakistan in his report submitted at the 570th meeting of UN Security Council on 17 January 1952, as “They are a people of legend, song, and story, associated with snow-capped mountains, beautiful valleys and life-giving waters. These people, Moslems, Hindus, Sikhs, and Christians, as farmers, craftsmen and artists, small shopkeepers, boatmen, bearers and other workers in areas now on both sides of the cease-fire line, have been, through the centuries, the victims of exploitation and conflict.
The recognition of the rights and dignity, the security and the self-determination of these historic people, under the auspices of the United Nations, might well become a challenging example of the progressive values of self-determination to the dependent peoples of the earth.” According to the first timetable proposed in January 1948 by Pakistan they should have been given the through a UN-supervised Plebiscite, in the spring of 1948 or according to the second timetable proposed by Britain in April 1948, the Plebiscite should have taken place by October 1948.
UN regards that “The ultimate objective of a fair and impartial plebiscite under the auspices of the United Nations has, after all, been written into solemn agreements by the two Governments and endorsed by this Security Council.These agreements have been affirmed and reaffirmed by the two governments many times.”
Before proposing accession to Lord Mountbatten the Governor General of India on 26th October 1947, Prime Minister of Kashmir State proposed a Stand Still Agreement to the Governments of India and Pakistan on 12 August 1947. On 15 August 1947, the Government of Pakistan agreed to have “a Stand Still Agreement for the continuance of the existing arrangements pending settlement of details and formal execution of fresh agreements.”
Pakistan became the first sovereign country to enter into a bilateral agreement with the Government of Jammu and Kashmir and took over the administration of post and telegraph services. The Government of India, on the contrary, asked the Government of Kashmir, if the “Prime Minister or some other Minister duly authorized in this behalf could fly to Delhi for negotiating Stand Still Agreement between Kashmir Government and Indian Dominion.” The status of Accession changed on 15 January 1948, when India surrendered it for a UN-supervised vote and the raison d’etre, for the admission of Indian security forces, was given as the ‘grave emergency’ also changed on 1 January 1949, when both countries accepted a UN-brokered ceasefire, under the supervision of UNMOGIP.
Although accession has been surrendered by India on 15 January 1948 at the UN Security Council for a UN-supervised vote. Pakistan has maintained that “India obtained the accession of the State of Jammu and Kashmir by fraud and violence” and that Muslims of the State are convinced that “accession of the State to the Indian Union would be tantamount to the signing of their death warrant.” Britain and America have always suspected the vires of this accession. It was on this basis that Britain proposed on 22 November 1947 that the matter be referred to International Court of Justice and US was gearing up in August 1951 to seek ICJ reference, to dismantle the Indian reliance on accession.
In November 1947, Pakistan was only three months old and the new Dominion did not have the confidence and resources to accept the proposal put forward by Prime Minister Clement Attlee. The State Autonomy Committee Report that was published in July 2000 and approved by the two chambers of Kashmir legislature (Indian Occupied), finds that the accession was conditional and limited to three subjects, namely, Defence, External Affairs and Communication. According to the report the State has never merged into the Union of India. Kashmir would not have been the highly militarised zone in the world today, if efforts had continued on the US proposal made at the 571st meeting of the Security Council on 30 January 1952, for a definite period for demilitarization; secondly, the scope of demilitarization and quantum of forces that will remain at the end of the period of demilitarization; thirdly, the day for the formal induction into office of the Plebiscite Administrator”.
The proposal made by Pakistan at the 761st meeting of Security Council on 16 January 1957, that a United Nations force might be temporarily introduced into Kashmir to break the logjam over demilitarization, could not be pushed beyond being noted by the Security Council in its Resolution 14 February 1957.
The resolution was moved by Australia, Cuba, United Kingdom, and Northern Ireland and the United States of America. Taking note of the proposal of Pakistan, the resolution makes it quite clear that the use of the temporary force could only be considered within the framework of the resolutions in so far as it might contribute towards the achievement of demilitarization, as envisaged in the resolutions of the United Nations Commission and towards the pacific settlement of the dispute, the use of such a force would deserve consideration.
A strong support for deploying a United Nations force came from the Philippines. The representative of Philippines at the 773rd meeting of the Security Council on 20 February 1957 stated that “I must emphasize that the sovereignty of India or of Pakistan is not involved in the proposal to send a United Nations force into the state of Jammu and Kashmir for a temporary and limited purpose. In the view of both the Council and the Commission, neither India nor Pakistan can bring into question the sovereignty of the State of Jammu and Kashmir.
This position is crystal clear in the assurances given by the Commission to the Governments of India and Pakistan and which forms the basis of their acceptance of the resolutions of 13 August 1948 and 5 January 1949. Under the circumstances and pending the holding of a plebiscite, neither India nor Pakistan can claim sovereignty over the State of Jammu and Kashmir.” On 20 January 1948 at the 230th meeting of the Security Council, Indian representative conceded, “once we have dealt with the Kashmir question, there will probably not be anything of substance which will divide India and Pakistan to the extent of endangering international peace and security”.
Following upon this admission the representative of the United Kingdom said, at the 284th meeting of the Security Council on 17 April 1948 “Kashmir dispute is the greatest and gravest single issue in international affairs”. Netherlands has said at the 566th Meeting of the UNSC on 10 November 1951 that, “The lack of agreement, therefore, does not concern this right of self-determination. It concerns the ways and means and procedures to establish the conditions for a fair expression of the will of the people of the State of Jammu and Kashmir who want to make their choice free from any kind of fear or intimidation.”
The government of Pakistan while filing its counterclaim and response on 15 January 1948 argued that the two Dominions have unsuccessfully tried the mechanism of bilateral pacific engagement under article 33 of the Charter. However, Pakistan erred into being misled by Indian perseverance on bilateral engagement. Even the US had argued at the 607th meeting on 5 December 1952, that “Security Council, we feel, always welcome any agreement which the parties themselves can reach on any basis which will settle the dispute, provided of course that, that basis is consistent with the principles of the Charter of the United Nations.”
Allowing an indeterminate period to a bilateral engagement has resulted into an irreparable wrong done to Kashmir case. The matter was never raised at the UN Security Council from November 1965 to August 1996, for a period of more than 31 years.
Non-interest at the UN allowed the Government of India to shift focus from Kashmir and the new generation of diplomats today do not have the full understanding of the pending UN mechanism on Kashmir. They would not know that the Security Council has discussed Kashmir even on Sundays. Very few would know that UN Secretary-General Dag Hammarskjold visited Srinagar from 20-22 March 1959 to assess the Kashmir situation. It is interesting to point out that up to 31 March 1959, Indian citizens required an Entry Permit (visa) to enter into the State.
The requirement was rescinded by the Prime Minister of Kashmir, elected from only a part of the territory. There have been a series of errors in not keeping a timetable of holding a Plebiscite. One major mistake was not heeding to the advice of Colombian delegation in the UNCIP. It had urged that the Plebiscite Administrator should be neutral, that being the only way to induce India to abide by the offer which had been obtained with such difficulty. According to UN Security Council record, the Colombian delegation states, “Unfortunately, other delegations had explicit instructions to urge that the Plebiscite Administrator should be a United States citizen.
My delegation suggested, in private conversations also, that we should accept the Indian Government’s suggestion that the President of the International Red Cross should be appointed Plebiscite Administrator. If at that time, we had accepted the Plebiscite Administrator proposed by India, the President of the International Red Cross, the plebiscite would already have been held. Instead of that, Admiral Nimitz waited for nine years in New York for an opportunity to organize the plebiscite. But these errors are delicate matters, because an apparent diplomatic victory, obtained at a certain time, served propaganda purposes, but in reality, undid all the work the Commission had accomplished.”
It seems that we have been handing over advantages to India and there were concerns expressed by countries represented in the UNCIP. Colombia made a full statement on these errors at the 768th meeting of UN Security Council held on 15 February 1957. It said, “The Commission had provided for an arrangement, system or procedure that was to be carried out in six weeks or three months at the most. Advantage should have been taken of the favorable atmosphere of the climate that had been brought about in India: Mr. Nehru’s acceptance, and the confidence with which the Commission had inspired him to accomplish all this in three months.
But instead, we began to be asked for clarifications, which bogged us down for a year and a half. Then, of course, the Commission had nothing further to do.” The Indian claim that the UN mechanism on Kashmir was stalled because Pakistan failed to withdraw its forces has no merit. Indian claim has been refuted by Britain at the 606th meeting of the UN Security Council.
United Kingdom came out with a strong defence of equitable demilitarization. UK representative at the 606th meeting of the UN Security Council on 6 November 1952 in para 27 has found the Indian argument, as a condition not compatible with the idea of a ‘free plebiscite’.
Sir Gladwyn Jebb said, “I have mentioned earlier that at no stage should demilitarization involve a threat to the ceasefire agreement. This would mean that the forces of each side of the cease-fire line should be, broadly speaking of the same kind. I should make it clear that the United Kingdom Government has never thought that the proposal to limit the forces on the Pakistan side of the cease-fire line to an armed civil force while leaving a military force on the other side of the ceasefire line was consistent with a really free plebiscite. I hope that representatives will join me in urging that the parties should resolve any differences they may still have on this point in the way which I have suggested.”
The government of India has surrendered the conditional accession at the UN Security Council on 15 January 1948 for a UN-supervised vote. India rests its case at the 227th meeting of UN Security Council on 15 January 1948 as follows: “We desire only to see peace restored in Kashmir and to ensure that the people of Kashmir are left free to decide in an orderly and peaceful manner the future of their State. We have no further interest, and we have agreed that a plebiscite in Kashmir might take place under international auspices after peace and order have been established. Everything that we have done has been in discharge of our legal, constitutional, and moral responsibilities and obligations.
The question of the future status of Kashmir vis-à-vis her neighbors and the world at large, and a further question, namely, whether she should withdraw from her accession to India, and either accede to Pakistan or remain independent, with a right to claim admission as a Member of the United Nations, all this we have recognized to be a matter for unfettered decision by the people of Kashmir, after normal life is restored to them.”
India has admitted at the 767th Meeting of UN Security Council held on 8 February 1957, that after the First World War five plebiscites were held. These Plebiscites were held in Allenstein 1920, Marienwerder 1920, Klagenfurt Basin 1921, Upper Silesia 1921 and in Sopron 1921 under the Treaty of Versailles. The civilized world represented at the United Nations has to uphold article 1 (2) of the UN Charter which stands for equality and right of self-determination of the peoples. Kashmiri people’s title to ‘rights and dignity’, ‘security and self-determination’ as accepted by the world should not be delayed for long.
Dr. Syed Nazir Gilani 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. Dr. Gilani specializes in the Jurisprudence of UN Resolutions and Kashmir case. He was elected at the UN World Conference on Human Rights in Vienna, to represent the Unrepresented Peoples and Nations of the World. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.