Notwithstanding the fact that the UNSC in its informal meetings has thrice reiterated that the Kashmir dispute requires to be resolved in conformity with the principles of the UN charter and the relevant Security Council resolutions and the fact that the world has refused to buy the Indian narrative that its actions regarding Indian Illegally Occupied Kashmir (IIO&JK) was her internal matter, Indian leadership and its diplomatic representatives continue to call Kashmir an integral part of India.
This shameless obduracy on part of India necessitates unravelling the genesis of the dispute and the unconstitutional and illegal actions by India regarding her claims and the annexation of IIOJK. The Indian Independence Act passed by the British Parliament also declared that princely states were free to join any of the two dominions or remain independent. The Act however, did not specify the mode or mechanism for taking the desired decisions. The last viceroy of India, Lord Mountbatten while speaking to the Chamber of Princes, on June 25, 1947 said, “The Indian Independence Act releases the States from all their obligations to the Crown. The States will have complete freedom—technically and legally, they become independent. They are free to join any of the dominions but while doing so must keep in mind the geographical proximity and the demographic features of the population.”
India used the argument of geographical proximity and demographic realities to annex Junagadh and Hyderabad in spite of the fact that the rulers of those states wanted to join Pakistan. But in the case of Kashmir, it reversed the argument. India landed its troops in Srinagar on October 27, 1947 on the basis of an instrument of accession, the Indians claim was signed by the ruler of Kashmir (which was not part of the official record concerning partition nor has ever been shown to the world). Legal experts are of the opinion that in consonance with Article 7 of the Indian Independence Act, all agreements and treaties with the princely states or their rulers stood terminated on August 15, 1947. Therefore, the Maharaja of Kashmir ceased to be the legal ruler of the state and hence was not in a position to sign the instrument of accession.
Granted that the Maharaja did sign the accession and he was legally competent to enter into an agreement with the Indian dominion, it is pertinent to note that the accession itself was provisional as is manifest by the letter that Lord Mountbatten wrote to Maharaja in October 1947 accepting the accession provisionally and making it clear that the question of accession of Kashmir would be settled after a reference had been made to the people of Kashmir.
It is an irrefutable reality that immediately after the announcement of state’s accession to India on the basis of instrument of accession, the people of Kashmir revolted against the decision. Consequently, in the wake of the war that broke out between the two countries after the landing of Indian forces in Kashmir, it was India which took the matter to the United Nations. The UN, during the course of its deliberations on the subject, passed twenty-three resolutions, including two UNICEP resolutions of August 13, 1948 and January 5, 1949 calling for a plebiscite in Kashmir under the auspices of the United Nations. It is quite evident that the UN resolutions vividly recognised the right of the people to decide their own future through a process of self-determination. It is also pertinent to mention that the UN through its resolutions 91 and 122 also repudiated Indian stance that the issue of accession of Kashmir had been resolved by the constituent assembly of Kashmir. These resolutions reiterated that the question of accession could not be resolved by any means other than enunciated in the UN resolutions on the subject. This proves beyond any doubt that the Indian claims regarding Kashmir being its integral part are illegal and constitute a travesty of facts and legal realities.
In the wake of the 1971 war between India and Pakistan, the Simla Agreement was signed and Clause 6 of the agreement emphasised the resolution of all disputes between the two countries including Kashmir through peaceful means, bilaterally. The very fact that India acknowledged Kashmir as a disputed territory in the Simla Agreement belied its claims of Kashmir being its integral part. But unfortunately, the Indians have never shown honesty of purpose in resolving this issue and have used varying tactics to suspend or scupper the process of dialogue. It has always remained evasive on the core issue of Kashmir.
The scrapping of the articles 370 and 35 A of the Indian constitution by the BJP regime which gave special status to the state with its own legislative assembly, is also unconstitutional and violates the verdicts of the Indian Supreme Court and the High Court of IIOJK which said that these articles had become a permanent part of the constitution and could not be revoked without the consent of the constituent assembly of the state. Since the assembly stood dissolved, the Indian government could not repeal them.
Even the conscientious voices within India and those who could perceive the dangers inherent in this reckless move condemned the scrapping of Article 370 of the Indian constitution. The Congress strongly opposed the bill when it was presented in the Indian parliament. One of its senior leaders P. Chidambaram, while speaking in the Rajya Sabha rightly remarked, “Momentarily you may think you have scored a victory...drum beats that you will hear on the streets, certainly will encourage you to believe that you have corrected a so-called injustice but history will prove you wrong.... and future generations will realise what a grave mistake this House is making today. This will be a catastrophic blunder. It is a sad day. This will be the black day”.
The New York Times, in one of its editorials said, “The United States, China, the United Nations and other powers with influence over India and Pakistan must urgently do what they can to prevent India’s folly from escalating into a perilous and unpredictable regional crisis”. Amnesty International observed “New Delhi’s unilateral decision to revoke Article 370 without consulting the state’s inhabitants is likely inflame prevailing tensions, alienate the local population and increase the risk of further human rights violations amidst a complete clampdown on civil liberties and communication blackout”.
Amnesty International was right on the money in predicting what was to come. India has unleashed unprecedented persecution against the people of IIOJK who are under complete lockdown since August 5, 2019. It continues to violate human rights, as corroborated by the international media and two reports of the UN Commission for Human Rights. India’s belligerent posture towards Pakistan is a threat to regional peace and security. The Indian position on Kashmir and what it is doing in IIOJK is an affront to the
conscience of the world community.
Malik Muhammad Ashraf
The writer is a freelance columnist. He can be reached at ashpak10@gmail.com.
