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
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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.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
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.
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