Justice Syed Sharif Hussain Bokhari
THUS sending its army by Government of India in the wee hours of the morning of October 27, 1947 (though its presence was already recorded) was tantamount to invasion of the State of Jammu and Kashmir by India of an independent sovereign state. Past seventy years have established that India holds Kashmir not by the free will of the people, but through force and following carrot and stick policy.
From the very beginning people of Kashmir in general did not welcome India’s military intervention. Because of unfriendly treatment of army and different attitude of government, anti-intervention feelings grew day-by-day. Upto 1989 these movements were generally non-violent and even followed electoral process. But rigged elections and manipulated results turned peaceful resistance into armed struggle.
On January 1, 1948 India brought Kashmir issue before the UN Security Council in order to get endorsement to the accession of Jammu and Kashmir to India and Pakistan declared as invader in Kashmir. The Security Council without accepting claim of India, passed many resolutions, but in its first important Resolution of April 21, 1948 stated:
“Being strongly of the opinion that the early restoration of peace and order in Jammu and Kashmir is essential and that India and Pakistan should do their utmost to bring about a cessation of all fighting.”
“Noting with satisfaction that both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.”
All the subsequent resolutions passed by the Security Council and the United Nations Commission for India and Pakistan (UNCIP) maintained this position, recognizing the right of the people of Jammu and Kashmir to decide their political future.
Now coming to Article 370 of the Indian constitution which as originally enacted intended to give autonomous special status to Jammu and Kashmir State was never honoured and practised. Even during the early period, in all important matters Government of Jammu and Kashmir used to receive orders and instructions from Delhi. The government of Sheikh Mohammad Abdullah was dismissed in August, 1953 and was imprisoned on the instructions of the Prime Minister of India. The autonomy and special status under Article 370 was just a hoax to keep Jammu and Kashmir under Indian rule.
In “The Untold Story of Kashmir Politics”, Prem Nath Bazaz wrote: “The Article 370 of the Constitution which conferred a special status on Kashmir State was specifically meant to be a temporary provision….According to this provision the Article 238 which is applicable to all other states, did not apply to Jammu and Kashmir… Thus while remaining within the frame-work of Indian Constitution the Kashmir State virtually attained an autonomous status not enjoyed by any other state of the Republic of India. However, the Constitution makers envisaged the day when the need of the temporary provision would end and the Article 370 abrogated.”
But the position taken by the Plebiscite Front in its White Paper of 1964 is quite different which in para 13 recorded as under: “Let it be stated once that but for Article 370 of the Constitution of India there is no provision contained in the Constitution of India which applies per se to the State of Jammu and Kashmir and by virtue of Article 370 the State of Jammu and Kashmir becomes part of the Union of India within the meaning of Article 1 of the Constitution of India. The legal position, therefore, is that if Article 370 is abrogated, the State of Jammu and Kashmir will cease to be a part of the Union of India even temporarily under the Constitution of India. This was bound to be so as the future disposition of the State of Jammu and Kashmir had remained undetermined and was yet to be finally settled…”
In para 14 this White Paper further recorded:
“As a matter of fact, Article 1 of the Constitution of India could not provide for a permanent accession of the State of Jammu and Kashmir to the Union of India, as at the time when that provision was adopted, India continued to declare publicly that she was bound morally, legally, constitutionally and internationally by her commitment to hold a plebiscite in the State of Jammu and Kashmir to determine the will of the people on the question of accession, and since the Constitution of India could be made applicable to the State of Jammu and Kashmir by virtue of the Instrument of Accession alone, Article 1 of the Constitution of India could not and did not provide for a permanent accession of this State to the Union of India.”
The assertion of Plebiscite Front is the answer to the verdicts of the Indian Supreme Court and the Srinagar High Court on Article 370 of Indian Constitution. Though my position, as stated earlier, is that Hari Singh was neither de jure nor de facto Ruler of the State on October 26, 1947 nor had he obtained public mandate, therefore, accession of the State to India made by Hari Singh was without authority and public mandate and thus without legal effects.
The constitutional relationship with India (that includes Article 370) created under the Proclamation issued on 25 November, 1949 by Karan Singh as Regent of Jammu and Kashmir was equally devoid of validity and legal effects.
With regard to the Constitution of Jammu and Kashmir, 1957, suffice to say that it was enacted by a Constituent Assembly which came into being in 1951 through fraudulent and rigged election and did not represent the whole State of Jammu and Kashmir. Neither Indian parliament nor this Constituent Assembly of Jammu and Kashmir could deprive the people of Jammu and Kashmir of their basic right to self-determination and deciding their political future.
About the Constituent Assembly of Jammu and Kashmir and the Constitution enacted by it the Security Council passed a specific Resolution on 24 January, 1957 to the following effect:
“Reaffirms the affirmation in its Resolution of 30 March, 1951 and declares that the convening of a Constituent Assembly as recommended by the General Council of the All Jammu and Kashmir National Conference and any action that Assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire state or any part thereof, or action by the parties concerned in support of any such action by the Assembly, would not constitute a disposition of the State in accordance with the above principle.”
The preamble of this Resolution stated the principle as follows: “Reminding the Government and the authorities concerned of the principle embodied in its Resolutions of 21 April 1948, 3 June 1948, 14 March 1950 and 30 March 1951 and United Nations Commission for India and Pakistan Resolutions of 13 August, 1948 and 5 January, 1949 that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.”
Almost simultaneously with the emergence of India and Pakistan as independent States under the Indian Independence Act, 1947, they started fighting over Kashmir. India based her claim on accession to India by its ruler, Maharaja Hari Singh and Pakistan claimed on the principle of partition whereby Princely State having Muslim majority and contiguity, was supposed to accede to Pakistan.
Ever since, India and Pakistan are inimical towards each other and fought two major wars in 1948 and 1965. Consequently, progress and human resource development in India and Pakistan is hampered. The people of Jammu and Kashmir have suffered the most economically and politically and in terms of human resource development. They face death and destruction almost daily in routine.
How ironic and shocking that the people of Jammu and Kashmir are denied and deprived of fundamental human rights. The Constitution of the Jammu and Kashmir, 1957 does not recognize and confer any of the fundamental rights to the people nor does that chapter of Indian constitution apply to Jammu and Kashmir.
The people have no constitutional guarantee to life, liberty or property. They do not have the luxury of enjoying freedom of conscience, speech, association and movement. Their dignity and privacy of home is often violated. The human rights of the people in Kashmir are trampled upon with impurity by the army and forces disregarding all humanitarian laws. The Preamble to the Universal Declaration of Human Rights declares:
“Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom.”
This state of affairs must end and the people of Jammu and Kashmir be permitted to decide their political future and live in peace. In turn peace will also prevail in India and Pakistan. People of Jammu and Kashmir are possessed with the right of self-determination without interference by India and Pakistan.
The International Covenants on Human Rights declare: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
Similarly the UN General Assembly Resolution 2625/1970 declares: “By virtue of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference their political status….and every state has the duty to respect this right in accordance with the provisions of the Charter.”
The right to self-determination of the people of Jammu and Kashmir is particularly recognized by various Resolutions passed by the Security Council and the UNCIP. Here I will refer to the Resolution of the Security Council passed on December 2, 1957 which inter alia stated:
“Observing further that the Governments of India and Pakistan recognize and accept the provisions of its Resolution dated 21 April, 1948 and of the Resolutions of the United Nations Commission for India and Pakistan dated 13 August 1948 and 5 January 1949, which envisage in accordance with their terms, the determination of the future status of the State of Jammu and Kashmir in accordance with the will of the people through the democratic method of a free and impartial plebiscite”.
Since the right to self-determination is a fundamental human right, it needs no approval and cannot be denied to the people of the State of Jammu and Kashmir. In exercise of this right they are entitled to decide their political future in a democratic manner freely adopting any option as envisaged in UN General Assembly Resolution No.2625/1970 which states “the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by people constitutes modes of implementing the right of self-determination by the people”.
India and Pakistan have the legal and moral duty to provide to the people of the State of Jammu and Kashmir proper opportunity to freely and fairly exercise the right of self-determination, to resolve the dispute peacefully.
In terms of its resolution dated 30 March, 1951, “…it is the duty of the Security Council in carrying out its primary responsibility for the maintenance of international peace and security to aid the parties to reach an amicable solution to the Kashmir dispute and that a prompt settlement of this dispute is of vital importance to the maintenance of international peace and security”.
In the end I would like to reproduce the following observations made many decades earlier by Dr. Josef Korbel in“Danger in Kashmir” (pages 351-2) which have proved correct and still hold good: “The people of Kashmir have made it unmistakably known that they insist on being heard. Whatever may be their wishes about their future, they must be ascertained directly or through their legitimate, popular representatives.
The accession of the State of Jammu and Kashmir to India cannot be considered as valid by cannons of international law. The case itself cannot be side-tracked. The history of the case has made it clear that time has only aggravated not healed the conflict; that neither Pakistan nor Kashmiris will accept the status quo as a solution.”
—Courtesy: Rising Kashmir
[The author lives in Lahore and is former Judge of Lahore High Court. He was born in Kreeri in north Kashmir and had migrated to Pakistan [email protected]]