Brig (Retd) Muhammad Khan
SINCE its invasion of Jammu and Kashmir on 27 October 1947, India is pursuing an incorrect and illegal claim over this former Princely State. In 1947, India had only one plea that Maharaja of Kashmir had signed an instrument of accession with India. India referred this sole appeal to the United Nations, once it lodged its complaint on 1 January 1948. In order to maintain its occupation of the state, it introduced Article 370 of its Constitution which was a temporary, transitional and provisional arrangement to create the linkage between India and the State of Jammu and Kashmir. On 5 August 2019 after passage of seventy-two years, India annexed the India-occupied Jammu and Kashmir with India while quoting the same plea.
Two illustrious unbiased historians of the United Kingdom questioned the very existence of Instrument of Accession. Both view that ‘no Instrument of Accession was signed between Maharaja Hari Singh and Indian Government till 0800 hours on 27 October 1947, once Indian Army landed at Srinagar Airport. Indeed, Maharaja Hari Singh did not ask for the accession of the State with Indian Union. Rather, he only asked for military assistance from India, fearing the military advances of Kashmiri irregular forces. Prem Nath Bazaz, a Hindu Kashmiri politician, scholar and author, wrote in his book that Pandit Kok, the Hindu Prime Minister of Kashmir in 1947, advised Maharaja to accede to Pakistan.
Indeed, 80% population of the State was Muslim and even non-Muslim population of the State too wanted to join Pakistan. Moreover, there were two bases fixed by Viceroy of India, Lord Mountbatten for the accession of the princely states; the will of the people and geographic contiguity. In the case of Princely State of Jammu and Kashmir both factors favoured Kashmir’s accession to Pakistan. Nevertheless, if there was an Instrument of Accession; its clauses did not allow its occupation by India. Clause V says, “The terms of this Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by me.” Clause-VII says, “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India.” Since Indian claim over the State of Jammu and Kashmir is only based on Instrument of Accession which itself is fake, therefore, the very basis of Indian claim are incorrect. How India continues occupying the State and now annexation without a legality.
Besides, Article 370 was to remain valid until conduct of the plebiscite in the State as per UN resolutions. It got a provisional acceptance from the Constitutional Assembly of the India- occupied Jammu and Kashmir (IOJK) forcefully. After provisional approval of this Article, the Constitutional Assembly of IoK was dissolved in 1956. Undoing the Article was to be done by the Constitutional Assembly or at least Legislative Assembly of IOJK without which it stands illegal and unconstitutional. On 5 August 2019, Indian Government implemented its long-awaited agenda of illegal annexation of the State of Jammu and Kashmir as union territories under Jammu and Kashmir Reorganization Act-2019. This illegal Act was implemented on 31 October 2019 without any consent of the people, the State Assembly and above all in violation of its own Constitution and the Constitution of the IoK.
Through this Act, the State was relegated from the status, it traditionally enjoyed for centuries. By disintegrating the state into two parts and lowering its status, India has indeed, demeaned the entire Kashmiri nation. Grounds were prepared for that through imposition of Presidential Rule, after the Governor Rule. Besides UN resolutions: 91 and 122, both prevent all parties to take any unilateral decision about the future of the State, except through UN administered plebiscite. On 1 April 2020, India introduced yet another law for the grant of Kashmiri citizenship to Indian nationals; a plan to make massive demographic changes in the IOJK.
Article 49 of the Fourth (4th) Geneva Convention-1949 provides adequate protection to local civil population of any occupying territory with respect to the right over their land and security against making any demographic changes in the composition of the original population. Article 49 (6) of the 4th Geneva Convention exclusively deal with the protection of civil population in the time of war. Since 1990, the occupied state of Jammu and Kashmir has been a war zone with an overwhelming military presence of over 900,000 Indian troops. Indian security forces have been involved in massive killing of Kashmiris masses with total impunity under repressive Indian laws. Indeed, IOJK has highest troops concentration level in the world with the status of an active war zone.
Article 49 (6) of the 4th Geneva Convention prohibits the transfer by an occupying power of its own civilian population in the area it occupies or colonizes. The Article stipulates that the “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”. By any definition, Indian occupied parts of Jammu and Kashmir became an ‘occupied territory’ on the day; Indian Army invaded it on 27 October 1947. India is a signatory state of the Geneva Convention-1949, therefore bound to observe and follow the Convention in its true essence. Shifting its own population in occupied parts of the Jammu and Kashmir clearly aims at making the demographic changes by India. Indeed, the Jammu and Kashmir Reorganization Act-2019 and Adaptation of State Laws Order-2020 are meant to make demographic changes in IOJK.
By any definition, Kashmir is an international dispute with dozens of UN resolutions, demanding its solution through a free and fair plebiscite. How can India devise these strategies in occupied Jammu and Kashmir which is not part of it? Once Article 49(6) clearly prohibits any measure meant for demographic manipulation by any state or an occupying power, how India is manipulating all this in the occupied state of Jammu and Kashmir while degrading its centuries old status of a state. India had already manipulated the demographic changes in the Jammu Province of the occupied state and later through abrogation of Articles 370 and 35-A and after amendments in the domicile laws; it is undertaking changes in the Valley part of the occupied state by actively transferring its own population into the occupied state.
From the perspective of international law, Geneva Convention, international covenants, UN Charter and UN resolutions and other human rights laws, Indian occupation of IOJK and converting and annexing it into Indian Union is illegal and deliberate violation of international treaties. From the legal perspective, India cannot change the status of a state under its occupation and whose resolution is pending at the UN. Besides, it all has been done against the wishes of the people of IOJK who are still under siege and curfew, imposed since 5 August 2019. The UN and world must realize their global responsibilities in the light of Responsibility to Protect (R2P) and Liberal Interventionist Approach of International Relations. Pakistan must approach United Nations, International Court of Justice and other international forums against the illegal acts of India in IOJK.