Monday 9 September 2019

LEGAL STATUS OF JAMMU AND KASHMIR- Which Part is not occupied? Dr Shabir Choudhry


Legal status of Jammu and Kashmir-
Which Part is not occupied?
Dr Shabir Choudhry  
This paper I wrote in April 2019. My views and analyses were based on the situation as it was up till that time.
This work has not been published in a booklet form, as claimed by some people.
What Modi, Prime Minister of India, has done since 5 August 2019, dramatically changed the whole situation. I and my political party, United Kashmir Peoples Party, has strongly opposed this and condemned it; and have held conference, seminars and demonstrations in various parts of the world.   
I shall try to update this work, and then publish it.







Contents
Which part of Jammu and Kashmir is not occupied?’

Preface
Introduction

Two Nation Theory and Princely States

Was accession provisional?

Who is aggressor in Jammu and Kashmir?

Right of self-determination or a right of accession

Conclusion
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Preface
In preparation and publication of this booklet, which may be perceived as controversial by some people, I was encouraged and supported by senior leaders of United Kashmir National Party, including the Party Chairman, Sardar Shaukat Ali Kashmiri, Nasir Aziz, Jamil Maqsood, Sardar Amjad Yousaf and Qamar Khalil.
I must emphasis from the outset, that I have always supported united and independent Jammu and Kashmir with secular and democratic society. My political party UKPNP, also adheres to ideals of secular and liberal society, and actively, but peacefully struggles for united and independent Jammu and Kashmir.
I wrote this paper, as a researcher, political analyst and a student of history. I wanted to correct the historical record, irrespective of what people say to me. People will show their reaction to this booklet in accordance with their knowledge and experience; and moreover, in light of their political, social and tribal affiliations.
I was prepared to face the consequences on my own, as I have always done in the past. To promote truth, peace, human rights and cause of united and independent Jammu and Kashmir, I have encountered many storms in the past.
To promote fundamental rights of all citizens of Jammu and Kashmir, and noble cause of united and independent Jammu and Kashmir, which has always been very close to my heart, I am prepared to face more political storms and opposition.
However, this time, the above-mentioned people of the United Kashmir Peoples National Party said:
You are not alone in this struggle. This is our struggle too. We appreciate your written contribution, and support intellectual debate on various aspects of Jammu and Kashmir history and politics.
Whatever the reaction of the people, we will all face it as a team, and as a political party, which has systematically promoted peace, human rights and shattered many myths associated with history and politics of Jammu and Kashmir State.
I thank my respected colleagues, and assure them that our struggle for peace, justice, equality and other fundamental rights of our people will continue.
I have endeavoured to present the legal status of Jammu and Kashmir, as I see it. Other people may have different view on this. However, I must add that I have unwavering commitment to the cause of United and independent Jammu and Kashmir. My party, UKPNP, like me, has also a strong commitment to the United and independent Jammu and Kashmir.
I hope this booklet will help people to understand the legal status of our divided State of Jammu and Kashmir, and formulate their policies accordingly.
Finally, I admire courage and wisdom of Amjad Yousaf for agreeing to write an introduction to this work, and sincerely hope that it will generate a debate which will ultimately help divided and suffering people of Jammu and Kashmir.
Dr Shabir Choudhry, President Foreign Affairs Committee of UKPNP, author, researcher and political analyst.
London             April 2019
Email: Drshabirchoudhry@gmail.com       Twitter:  @Drshabir
http://drshabirchoudhry.blogspot.com/           https://www.facebook.com/shabir.choudhry
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Introduction
This work is the latest written contribution of Dr Shabir Choudhry, who has authored more than 67 books and booklets on various topics related to Jammu and Kashmir.
This new booklet, Legal status of Jammu and Kashmir - Which part is not occupied, is written in response to a question people frequently asked him.
Dr Shabir Choudhry has presented facts, which some people may find difficult to digest at present, because they have been fed with lies, propaganda and concocted stories for the past 70 years. 
United Kashmir Peoples National Party strongly believes in United and independent Jammu and Kashmir with liberal and secular society. Dr Shabir Choudhry, as a senior leader of the UKPNP, not only adheres to this policy, but also has a track record of promoting this policy without any ambiguity.
Many people of Jammu and Kashmir have benefitted from Dr Shabir Choudhry’s books and research. In this booklet, he has succinctly explained exact legal status of each part of our forcibly divided State.
Those people who have read distorted stories, and are influenced by fairy tales explained in the Pakistan studies, may find it difficult to accept these bitter facts. However, they should understand that facts remain facts, whether we accept them or not.
I expect this booklet to initiate a new debate on the narrative presented here. I hope this discussion, and interaction will help people to understand views of different political parties and individuals; and learn from each other.
Apart from the above, I emphasis that the State Subject Ordinance granted all citizens of Jammu and Kashmir State a special status, and no country has any power to abrogate that status, and deprive us of our fundamental human rights.
I reiterate that State Subject Laws must be respected in all parts of the divided State; and in this regard, Pakistani government must honour their obligations assumed under the UNCIP Resolutions. Right of expression and fundamental human rights of people must be respected in all parts of the divided State.
Our struggle for united and independent Jammu and Kashmir has always been peaceful, and we have always shunned extremism, terrorism, violence, religious hatred and intolerance.
Despite all the odds, our peaceful struggle for peace, equality and independence will continue.
Finally, I urge the UKPNP to adopt this document as an official document of the party; and promote strategies in light of historic documents. If our struggle is not based on historical facts, and is influenced by concocted stories by extremists and occupiers, then we can continue to give sacrifices, and will never reach our destination.
Sardar Amjad Yousaf, President UKPNP, Europe.
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Legal status of Jammu and Kashmir - Which part is not occupied?
1.   A question that some people have repeatedly asked me, and which I have been deliberately avoiding is the one below:
‘Which part of Jammu and Kashmir is not occupied?’
2.   People from my party, United Kashmir Peoples National Party, and some belonging to other parties have also asked me to clarify this important question. One Azad Kashmiri said:
‘I have seen your writings, where you say that the entire State of Jammu and Kashmir is occupied. Also, you, at times, write, Indian occupied Jammu and Kashmir and Pakistani occupied Jammu and Kashmir. Whereas, views of some of your party colleagues are different. Can you please clarify this ambiguity?’
3.   Views expressed below are mine, and not that of the UKPNP. I am only presenting a legal position, as it is understood by me, and  the international community. I am not advocating or supporting positions of New Delhi or Islamabad on the Jammu and Kashmir dispute.

4.   However, before I do that, I want to state clearly what I want. I want united and independent Jammu and Kashmir, with a secular and liberal society. I have been very sincerely working for this objective. That is my desire, it is my wish, and that is my ultimate goal.

5.   I strongly believe that my party, United Kashmir Peoples National Party, is also working for the united and Independent Jammu and Kashmir. It is because of this common agenda, and shared values that we are working as a team.

6.   Despite the legal status discussed here, I sincerely believe that the best option for people of Jammu and Kashmir is to attain united and independent Jammu and Kashmir. It is in United and Independent Jammu and Kashmir, we can protect and promote interests of all ethnic groups, and flourish as a citizens of Jammu and Kashmir.

7.   It is sad that some people of Jammu and Kashmir are bewildered, as they fail to distinguish between desire, propaganda, fiction and fact.

8.   I am going to present some facts. They may be disliked by some because they have been influenced by false propaganda of those who occupy us and who have brutally distorted our history.

9.   Like other people I also have some desires, ambitions and goals; but these are different to the irrefutable facts I am going to present. I urge people to formulate policies in light of these facts.

Two Nation Theory and Princely States
10.                 First point we need to understand is that the Two Nations Theory did not apply to Jammu and Kashmir, and other Princely States. This means, Jammu and Kashmir State did not belong to Pakistan just because it had a Muslim majority.

11.                 The government of Pakistan by entering in to a bilateral agreement with the State of Jammu and Kashmir acknowledged this fact that Jammu and Kashmir was a separate political entity. This agreement with Pakistan was known as a Standstill Agreement.

12.                 The Crown Representative, and Governor General of undivided India, Mountbatten asserted that after lapse of the British Paramountcy, the Princely States will legally and technically become independent. This view was supported by constitutional experts like Mohammed Ali Jinnah, founder of Pakistan. 1

13.                 Pandit Nehru, on behalf of the Indian Congress wanted the people of Princely States to decide future of their states. Mohammed Ali Jinnah, on behalf of the Muslim League, insisted that the Rulers of the Princely States should take this decision.

14.                 As it was not practically possible during that turbulent time to let people ascertain their will with regard to future of the Princely States, Mountbatten supported the suggestion of Mohammed Ali Jinnah, that Rulers of the Princely States should decide future of their states. This principle was also accepted by Pandit Nehru. The Rulers were asked to decide by taking geographical position and composition of their subjects in to consideration.

15.                 The State of Junagarh had no land link with Pakistan. Its Ruler was a Muslim; and population was more than 80% non-Muslim. Because the Two Nations Theory was not applicable to the Princely States, and the Rulers were permitted to decide future of their states, the Ruler of Junagarh decided to accede to Pakistan. Mohammed Ali Jinnah knew the legal position of the Princely States, so without any hesitation he accepted that accession; and practically proved that the Two Nations Theory was not applicable to the Princely States.

16.                 Furthermore, a convention was established, that while taking decision about the future of their Princely States, the Rulers do not have to take geographical position and composition of their subjects in to consideration.

17.                 The Maharaja of Jammu and Kashmir, despite all the political, religious and economic pressures, stood his ground, and did not accede to India or Pakistan, because he wanted to become an independent Ruler of Jammu and Kashmir State.

18.                 So, after lapse of the British Paramountcy Jammu and Kashmir became independent, because he did not accede to any country. This fact was agreed even by Mr Jinnah and Mountbatten.

19.                 Additionally, it was acknowledged that the Maharaja Hari Singh was the legitimate Ruler of Jammu and Kashmir. Like other Rulers of the Princely States, he also had a right to decide future of his State.

20.                 It is because of this fact, as noted above, Mr Mohammed Ali Jinnah accepted accession of State of Junagarh to Pakistan, knowing that the State had more than 80% non-Muslims, and it had no land link with Pakistan. If the Two Nations Theory was applicable to the Princely States, then automatically Junagarh would have gone to India.

21.                 In view of the above facts, the Maharaja expressed his intention to maintain his independence. However, after the unprovoked Pakistani aggression in Jammu and Kashmir, the Maharaja of Jammu and Kashmir had no option but to seek help from the other neighbour, India.

Was accession provisional?

22.                  Pakistan had a written agreement with State of Jammu and Kashmir called Standstill Agreement. Pakistanis claim their country was established in name of Islam and to serve Islam. Islam strongly urge people and leaders to honour covenants and pledges.

23.                 Despite this Agreement, Pakistani leaders of that time launched attack to capture Jammu and Kashmir on 22 October 1947,  by unilaterally violating the Standstill Agreement. This aggression resulted in death of tens of thousands of innocent people, kidnapping and rapes of women. The Ruler of Jammu and Kashmir requested India to save life, liberty and property of his people, and his State. 2

24.                 It should be noted that India was under no compulsion to help Jammu and Kashmir, a country that was not legally part of India; and endanger lives of their soldiers, and risk a war with Pakistan.

25.                 An independent India knew that Jammu and Kashmir was a separate legal and political entity, so they refused to help, unless the Maharaja of Jammu and Kashmir acceded to India.

26.                 In order to save his State and his people, the Maharaja of Jammu and Kashmir signed an Instrument of Accession on 26 October1947. After this treaty, the  Indian troops landed in Kashmir on the morning of 27 October 1947.

27.                 As a recognized and legitimized Ruler of Jammu and Kashmir State, the Maharaja Hair Singh, while executing the Instrument of Accession said:

28.                 … ‘in the exercise of my Sovereignty in and over my said State do hereby execute this my Instrument of Accession and

1.    I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu & Kashmir…’ The Instrument of Accession further says:

2.    ‘I hereby assume the obligation of ensuring that due effect is given to provisions of the Act within this State so far as they are applicable therein by virtue of this my Instrument of Accession.’ 3

29.                 According to this treaty, India was to be responsible for Defence, Foreign Affairs and Communication. Apart from these three subjects, the State was to remain independent.

30.                 There is some confusion and controversy here. Majority of Muslim citizens of Jammu and Kashmir believe that the accession to India was ‘provisional’. However, nowhere in the Instrument of Accession it is written that the accession was provisional; although it was related to only 3 subjects, namely, Defence, Foreign affairs and Communication.

31.                  It was Mountbatten who made it ‘provisional’. As a Governor General of an independent India, he accepted the accession of Jammu and Kashmir. However, in his letter to the Maharaja Hari Singh he said accession was accepted ‘provisionally’; and that it has to be ‘ratified’ by the people of Jammu and Kashmir once the invaders are driven out, and peace and stability returns. 4

32.                 It must be pointed out that the Maharaja Hari Singh acceded unconditionally. Then a question arises, why Mountbatten added the word ‘provisional’, and why he mentioned about ‘ratification’, no one knows. This is a matter of academic debate.

33.                 Is it not interesting that the man, a British, who introduced the word ‘provisional’ was himself a ‘provisional’ Governor General of independent India. His post was a temporary one, and he had to leave for Britain in a few months.

34.                 Although some contents of Mountbatten’s letter created confusion, and helped to perpetuate the Jammu and Kashmir dispute, and suffering of the people; however, the agreement between India and Jammu and Kashmir State was the Instrument of Accession, and not what Mountbatten or other office holders of India subsequently stated.

35.                 There were more than 562 Princely states, and accession of no other state was accepted ‘provisionally’. The word provisional did not appear anywhere in the Instrument of Accession document. To obtain accession of the respective Princely States, both countries were ruthless. Where the Rulers were unwillingly to accede, their arms were twisted to obtain the accession.

36.                 Mountbatten’s much publicised visit to Kashmir did not yield the desired results. Despite all the pressure from many sides, the Maharaja Hari Singh refused to accede to any country. To rub salt in the wounds of the proud Royal Governor General, he did not even meet Mountbatten before he left Kashmir, by saying he was not well.

37.                  In my view, Mountbatten took that as an insult. He wanted to punish two people, Mohammed Ali Jinnah and Maharaja Hari Singh for causing embarrassment to him. Before leaving for Srinagar, Mountbatten assured top Congress leaders that he will be able to persuade Hari Singh for an accession. Hari Singh’s ambition was to remain independent, and his behaviour frustrated Mountbatten.

38.                 Mohammed Ali Jinnah also frustrated Mountbatten, and his pride was hurt. He had communicated to London that he would become a Joint Governor General of both India and Pakistan, only to be embarrassed later on, when Jinnah said he wanted to become Governor General of Pakistan.

39.                 In my opinion, the word ‘provisional’ was added by Mountbatten to ensure that the dispute continues in the Indian Sub-Continent. His strategy worked, and India and Pakistan, and especially people of Jammu and Kashmir continue to bleed since 1947.

40.                 This view is further supported by the fact that Mountbatten was the one who persuaded Prime Minister Nehru and Prime Minister Liaquat Ali on 25 December 1947, that the Jammu and Kashmir dispute should be taken to the UN Security Council.

41.                 Mountbatten was to remain a Governor General of an independent India for a short period, and the leaders of India and Pakistan had to deal with the mess he was to leave behind. I am sure both Liaquat Ali and Nehru did not know complicated mechanism of the UN, whereas Mountbatten and the British knew it. The Jammu and Kashmir dispute was taken to the UN Security Council under Chapter 6, which has only an advisory role.

42.                 No resolution passed by the Security Council under Chapter 6 can be enforced. The Chapter 6 urge parties to the dispute to: ‘seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.’  

43.                 If the Kashmir dispute had been taken to the UN Security Council under Chapter 7, then the situation would have been totally different. The Chapter 6 is good to drag on the dispute. If Nehru had known all this, he would have invoked Chapter 7, and not Chapter 6 of the UN.

44.                 It must be pointed out that Pakistan was not a party to the Jammu and Kashmir dispute before it was taken to the UN Security Council. Even after inclusion of the words ‘provisional’ and ‘ratification’, the matter was between the government of India and people of the Jammu and Kashmir. Technically people of Jammu and Kashmir had 3 options:

·      They could have ‘ratified’ the ‘accession’;
·      Rejected the ‘accession’;
·      or perhaps re- negotiated terms of the ‘accession’.

45.                 However, the Pakistani military attack supported by the local collaborators changed the situation. The government of India was under obligation to forcefully drive out the attackers from the soil of Jammu and Kashmir and save life, liberty, property and honour of the people.

46.                 If the Jammu and Kashmir dispute was not internationalised by taking it to the UN Security Council, then because of military strength, huge size and resources, India would have driven out the invaders. That would have meant no role for Pakistan, and strategically important State of Jammu and Kashmir would have gone under the control of India. That was not in ‘national’ interests of the British and America because of the ‘Cold war’ and strategic interests in the region.

47.                 Already with help of Major Brown, Gilgit Scouts and some local collaborators they took over strategically important, and resource rich areas of Gilgit Baltistan. It was essential to cut out a role for Pakistan in Jammu and Kashmir dispute. Once the matter was referred to the UN Security Council, Pakistan ‘legally’ became a party to the dispute, because they were called by the Security Council to respond to the charge sheet presented by India.

48.                 The people of Jammu and Kashmir should have been the principal party to the dispute, they were side lined; and sadly, India and Pakistan became the parties who were to decide what is good for the people of Jammu and Kashmir.

49.                 As pointed out earlier, Pakistan had no legal standing in this matter. The issue was between India and the people of Jammu and Kashmir. However, by one master stroke, a role was cut out for Pakistan; and Subjects of the Maharaja Hari Singh continue to bleed and suffer. The Indian Sub-Continent still remains volatile, full of hatred and underdeveloped.

50.                 Also, it has been explained that the Instrument of accession document did not have a word ‘provisional’. This was first used by Mountbatten in his letter to Maharaja Hari Singh. Subsequently, Prime Minister Nehru and other Indian officials used the word ‘provisional’ so many times; and agreed to hold a plebiscite to determine the future of Jammu and Kashmir State. It was  clear from their actions, that even they did not regard the accession as final.  

51.                 This ambiguity, rather contradiction, weakened the Indian stand on Jammu and Kashmir, and strengthened the Pakistani hand. Critics argue, if the leaders of an Independent India believed that Jammu and Kashmir legally belonged to India, then why they took the matter to the United Nations Security Council.

52.                 One possible explanation is that they didn’t want the war with Pakistan, and unnecessary death and destruction. They wanted the Security Council to intervene and force Pakistan to withdraw their troops that peace and stability could be restored and life, liberty and property of the people could be saved.

53.                 I have spoken to a few Indian historians and diplomats on this subject. Their view was that, referral to the UN Security Council does not change the legal status of Jammu and Kashmir. India wanted the Security Council to stop Pakistan from creating trouble in Jammu and Kashmir. If Pakistani interference will continue then it will result in more bloodshed, insecurity, human rights violations, and possible war with Pakistan.

54.                 Also the Indian leaders of the time felt confident that they will win vote of confidence from the people of Jammu and Kashmir, because the most popular leader of Jammu and Kashmir, Sheikh Abdullah was with them. He did not like any relationship with Pakistan the way he was insulted by Jinnah many times.

55.                 Apart from that one can say those at the helm of affairs in India, at that time, failed to act in national interest; and made an error of political judgement. However, that does not change the legal agreement between India and former Princely State of Jammu and Kashmir.

56.                 Perhaps, it would be pertinent to quote a text from the letter India sent to the UN Security Council, at the time of making the complaint. India in its letter said:
‘They feel justified in requesting the Security Council to ask the Government of Pakistan :
(1) To prevent Pakistan Government personnel, military and civil,
from participating or assisting in the invasion of the Jammu and Kashmir State;
(2) To call upon other Pakistani nationals to desist from taking any part in the fighting in the Jammu and Kashmir State;
(3) To deny to the invaders : (a) access to any use of its territory for operations against Kashmir,
(b) military and other supplies, (c) all other kinds of aid that might tend to prolong the present struggle. 5

Who is aggressor in Jammu and Kashmir?

57.                 Some Resolutions on the Jammu and Kashmir dispute were passed before visit of the United Nations Commission for India and Pakistan to the Indian Subcontinent; and some were passed after they presented their report to the Security Council.

58.                 In my opinion, the Resolutions passed after the visit, and after analyzing the report of Commission have more value. The first Resolution passed after the UNCIP report was the Security Council Resolution of 13 August 1948.

59.                 The Security Council Resolution of 13 August 1948, clearly stated that Pakistan should withdraw all troops from the State of Jammu and Kashmir. Also, all the tribesmen, and all other Pakistanis who entered the State for the purpose of fighting must withdraw.

60.                 After this withdrawal is completed and the United Nations Commission for India and Pakistan is satisfied with that,  ‘the Government of India agrees to begin to withdraw the bulk of their forces from the State in stages to be agreed upon with the Commission.’  6

61.                 After completion of this process, the UN nominated ‘Plebiscite Administrator’ ‘will be formally appointed to office by the Government of Jammu and Kashmir.’

62.                 The appointed ‘Plebiscite Administrator shall derive from the State of Jammu and Kashmir the powers he considers necessary for organising and conducting the plebiscite and for ensuring the freedom and impartiality of the plebiscite.’ 7

63.                 What this means is, the UN Security Council, all the legal experts and analysts regarded Pakistan as an ‘aggressor’, and regarded Pakistan’s presence in Jammu and Kashmir ‘illegal’. That is why they demanded Pakistan to withdraw all troops and withdraw all tribesmen and withdraw all other Pakistanis who went there for the purpose of fighting.

64.                 India, on the other hand, was not regarded as an aggressor; and Indian entry and presence in Jammu and Kashmir was not regarded as illegal.

65.                 In short, Pakistan entered Jammu and Kashmir:

·      By violating a written agreement – Standstill Agreement;
·      Against the wish of the Ruler;
·      With intention to occupy the State by force;
·      Attackers were allowed to kidnap, loot and plunder.

66.                 India entered Jammu and Kashmir:

·      On request of the Ruler;
·      After a written agreement;
·      With intention to safeguard life, liberty, property and honour of citizens;
·      To drive out the invaders.

67.                 In view of the above irrefutable facts, the International community regarded:

·      Pakistan as an aggressor;
·      That is why Pakistan was asked to vacate all the areas;
·      India’s presence in Jammu and Kashmir was perceived as a ‘legal one’;
·      That is why India was permitted to keep troops for the purpose of law and order, and to save people from any future adventure from Pakistan or from any other country.

68.                 In view of the above facts:
·      How can we say, India is an occupier;
·      Or India is an aggressor?
·      How can we say India’s presence in Jammu and Jammu and Kashmir is illegal?
·      At best, we can say India is committing human rights abuses.


Right of self-determination or a right of accession

69.                 It was prerogative of  the Maharaja Hari Singh to decide future of Jammu and Kashmir. He did that on 26 October 1947. His decision was ‘deliberately’ made controversial by internationalising the Jammu and Kashmir dispute, and by making Pakistan a party to the dispute.

70.                 Ideologues of redundant Two Nations Theory, and some Kashmiri collaborators claim that after signing the Standstill Agreement with Pakistan, the Maharaja Hari Singh lost the right to sign an Instrument of Accession with India.

71.                 This is not true. At best, one can call it a Pakistani propaganda to fool their own people and Muslims of Jammu and Kashmir. It must be pointed out that the Maharaja Hari Singh offered to have a Standstill Agreement with both India and Pakistan. Whereas, Pakistan immediately accepted it, Government of India asked Hari Singh to discuss this matter further.

72.                 Many political activists and political leaders of Jammu and Kashmir, belonging to the Muslims community demand that the UN must honour their pledge to give us a right of self - determination.

73.                 I have thoroughly studied the Jammu and Kashmir dispute, and the UN Security Council Resolutions. I have not come across any Resolution where the UN Security Council promised that they will give people of Jammu and Kashmir a right to self-determination.

74.                 What is available in the UN Security Council Resolutions is a right of accession, which means we have a right to choose if we want to become a Pakistani or an Indian.

75.                 After visiting the Indian Sub - Continent, the UN Commission for India and Pakistan, proposed a resolution which was adopted on 13 August 1948. In part 3 of this Resolution, it was stated that:
The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the Truce Agreement both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured.  
76.                 The International body, the UN Security Council decided that people of Jammu and Kashmir should take a decision on ‘future’ of Jammu and Kashmir. Unlike general understanding of Muslims of Jammu and Kashmir and Pakistanis, the UN Security Council never talked about right of self-determination of people of Jammu and Kashmir. They talked about a plebiscite.

77.                 The phrase ‘future status’ could possibly mean:
·      accession to India;
·      accession to Pakistan;
·       or an independent Jammu and Kashmir.

78.                 After fearing emergence of an independent Jammu and Kashmir, the Pakistani government suggested that this phrase ‘future status’ should be replaced; and people of Jammu and Kashmir should be only given two choices. India did not oppose this proposal, and no loyal son of Jammu and Kashmir was there to protect and defend interests of Jammu and Kashmir; and as a result, in the next UN Security Council Resolution of 05 January 1949, the following text was agreed:

‘The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite;’

79.                 Pakistan claims to be a well-wisher, big brother and an advocate of people of Jammu and Kashmir; and yet they ensured that people of Jammu and Kashmir must not become independent, and get their national identity and sovereign status.

80.                 Pakistan, not only refused to withdraw troops from the territory of Jammu and Kashmir, as directed by the UN Security Council Resolution of 13 August 1948, but also to rub salt in wounds of people of Jammu and Kashmir, Pakistan propagated that what was available to people of Jammu and Kashmir was a ‘right of self-determination’.

81.                 It is clear from the above that what was made available to people of Jammu and Kashmir was not a right of self-determination, but a right of accession. People of Jammu and Kashmir were told, you can become a citizen of India if you wish, or you can become a citizen of Pakistan, but you CANNOT become independent.

82.                 Pakistan assumed a self-appointed role of ‘an advocate’ of people of Jammu and Kashmir, and propagated that what you have is a right of self - determination. It is sad that, even in 2019, many of us believe the Pakistani propaganda that we have a right of self-determination.

83.                 Also, Pakistan propagated that India refused to honour the UN Security Council Resolutions. Fact of the matter is, it was Pakistan who refused to honour these Resolutions; and refused to withdraw troops as demanded by the Resolution.

84.                 It clearly means Pakistan DO NOT want the Jammu and Kashmir dispute to be resolved peacefully. Militancy, instability, extremism, human rights violations and bloodshed suits their policy and strategy.

85.                 Due to lack of knowledge, inherent bias and myopic view on different issues, many of us erroneously believe that India’s oppression, which is mainly due to sponsored proxy war and militancy, eliminate India’s legal standing on Jammu and Kashmir.

86.                 That is not true. I can condemn India’s human rights abuses. However, is it not a fact that human rights abuses are being committed in those areas where there is militancy. If India’s para military forces were trigger happy, and enjoyed committing human rights abuses in Jammu and Kashmir, then why are they not doing that in a province of Ladakh and province of Jammu?

87.                 Critics or those who accept no logic that differs with their perception, claim that Indian forces only want to kill and oppress Muslims. This claim does not hold water. Ladakh has two districts, one is Kargil, which has a clear Muslim majority. Rational people ask why there is no oppression in Kargil?

88.                 Furthermore, why there is no oppression in Muslim dominated areas of Jammu Province? It is because there is no militancy going on there. When militant actions take place in these areas, troops go there in search of militants, and some human rights abuses do take place.

89.                 Sadly, where ever there is militancy and terrorism, some human rights abuses do take place; and  that happens in every country, including India, Pakistan, America, China and other countries.

90.                  When Pakistani sponsored militancy started in the Kashmir Valley in 1988, there were massive human rights abuses in the Valley of Kashmir in early 1990s. Now militancy is somewhat under control, the human rights abuses are only restricted to those areas of the Valley of Kashmir where there is some militancy going on.

91.                 Rational of all this is that we must struggle peacefully, and must stop using guns and exploding bombs, the human rights abuses should stop too. If we think we have a God given right to borrow guns and bombs from Pakistan, and kill police and para - military troops in Jammu and Kashmir, but they should not use their guns against us, then we are fools. If we want them to stop using their guns, and stop abusing human rights, then we have to stop using guns given to us by Pakistan.

92.                 I further agree that Indian response to militancy, and proxy war was disproportionate, and cannot be justified. Similarly use of pellet guns against children and civilians cannot  be justified, however, this does not change the legal position of India on Jammu and Kashmir dispute.

93.                 There are many countries in the world where people are oppressed, and they are unable to enjoy their fundamental human rights. Absence of fundamental rights means the government is undemocratic. It is oppressive and does not care for the rights of people. It surely does not mean that the government is ‘illegal occupier of the territory.’ Also it does not mean the presence of the ruling elite, and its infrastructure is ‘illegal’.

94.                 India had two kinds of responsibilities towards people of Jammu and Kashmir:

·      Responsibilities assumed under the UN Security Council Resolutions;
·      Responsibilities assumed under the Instrument of accession.

95.                 I agree, India has failed to honour pledges made to the people of Jammu and Kashmir. Also, I agree that the para military troops have committed human rights abuses. I condemn that, and demand that the culprits must be held accountable.

96.                 It is responsibility of India to provide security and protection to all citizens of Jammu and Kashmir State. I am not trained to fight militants or terrorists. I don’t use gun. I use pen. It is a job of the Indian government and their infrastructure to fight terrorists; and save life, liberty, property and honour of the people.

97.                 It must be pointed out that Accession was not for the areas that are currently under the control of India. Accession was for the entire State as it existed on 15 August 1947.

98.                 It was prime responsibility of India to drive out invaders from the entire territory of the former princely State of Jammu and Kashmir; and protect fundamental rights of the all the citizens. India has failed to do that due to lack of will and political expediency.

99.                 If India cannot, or does not have the will to protect life, liberty, property and liberty of all citizens of State of Jammu and Kashmir, then they should publicly declare that. If India does that, and abandons areas currently under the control of Pakistan, one wonders what will be the legal implications on the Accession treaty.

Conclusion

100.              I have explained the legal position as I understand it. This should not be construed as my wish or a desire. I have always, since 1973, worked for United and independent Jammu and Kashmir with a secular and liberal society. This is also the position of United Kashmir Peoples National Party. I as an individual, and the UKPNP as a political party frequently come under attack, mainly because we promote an ideology that directly challenges narrative of Pakistan and their proxies and extremist groups.

101.              Criticism and a barrage of unfounded attack on us from Islamabad and their proxies only confirm this fact that the forces of occupation, extremism and violence regard us a threat to their agenda on Jammu and Kashmir.

102.              All those who believe that religion is a personal matter of citizens, and the State of Jammu and Kashmir belongs to all of us have no choice, but to unite and fight back forces of extremism, terrorism, intolerance and religious hatred. They are not only threat to peace and stability in Jammu and Kashmir, but also a serious threat to the entire region.

103.              India could be criticised and condemned on the issue of human rights abuses; however, despite many mistakes of political leaders, India’s legal position on Jammu and Kashmir is still strong.

104.              My purpose is to correct the historical records, and tell people what facts are. They have a right to accept these facts, or reject this narrative by providing a counter narrative with facts.

105.              Having said all the above, I reiterate that my struggle is for united and independent Jammu and Kashmir with democratic and secular society, where all citizens of Jammu and Kashmir can live with dignity and honour.
I hope the debate which may ensue will educate people and empower them.
Dr Shabir Choudhry
Chairman, South Asia Watch, London.
Reference:
1.   Viceroy of India, Mountbatten’s address to Chamber of Princess, 25 July 1947.
2.   Maharaja Hari Singh’s letter to Government of India on 26 October 1947.
3.   Instrument of Accession
4.   Mountbatten’s letter to Maharaja Hari Singh, 26 October 1947
5.   India’s Complaint to the Security Council on l January 1948.
6.   UN Security Council Resolution of 13 August 1948
7.   UN Security Council Resolution of 05 January 1949

Writer is a renowned writer and author of many books. He is also President Foreign Affairs Committee of UKPNP; and Chairman South Asia Watch, London.
Email: Drshabirchoudhry@gmail.com       Twitter:  @Drshabir


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