Imtiaz Gul and Farhana Kanwal
Tension and suspense is mounting ahead of Prime Minister (PM) Narendra Modi’s meeting with the leadership of Kashmir on June 24. Dr. Farooq Abdullah and Omar Abdullah of the National Conference, Ghulam Nabi Azad, Tara Chanf and G. A. Mir of Congrees, Sajad Ghani Lone and Muzaffar Hussain Baigh of Peoples Conference, Mehbooba Mufti of People Democratic Party (PDP), Altaf Bukhari of Apni Party, Ravinder Raina, Nirmal Singh and Kavinder Gupta of Bahartiya Janta Party (BJP), M. Y. Tarigami of CPI (M), and Professor Bheem Singh of National Panthers Party are likely to meet with PM Modi to the context of speculation that New Delhi may be having a heart of change as far as the revocation of Articles 370 and 35-A is concerned.
Political and legal activists in Srinagar feel the meeting is result of mounting political pressure – both from inside India and abroad – on Modi to address grievances of Kashmiris and diffuse the volatile conditions that have prevailed since August 5, 2019.
In a letter to Dr.Abdullah and other Kashmiri leaders, Dr. Syed Nazir Gillani, head of the London-based Jammu Kashmir Council for Human Rights (JKCHR) has listed down a chronology of important landmark events – UN resolutions, agreements and statements by Indian leaders such as Nehru in favour of Kashmiri and advised the Kashmiri leaders to stick to the jurisprudence of the issue with the help of historical documentary evidence on the Indian promises and commitments as well as its obligations vis a vis the international community i.e. United Nations. The letter amounts to a brief history of the Kashmir case and recalls major incidents that define the conflict and reminds India of what it promised and where it went deviated from or defaulted on its own commitments.
For the benefit of broader audience, Matrix is reproducing Dr.Gilani’s letter to help them understand the comprehensive evidence that exists on paper in favour Kashmiri Muslims’ outstanding right of self- determination.
“”We welcome this step taken by New Delhi and wish to forward the following input for your attention and the attention of parties represented in PAGD,” the letter says and goes on to recall critical moments in the history of Kashmir, including the role of external forces i.e. Indian army, bureaucracy, politicians” and the legal restrictions on their role in Kashmir.
1. PAGD should take a position on the agreements made by Government of India with the Government of J&K before going to United Nations Security Council (UNSC) and take a position on the UN Template on Kashmir. It perfects the jurisprudence of Kashmir case.
2. PAGD should remain guided by the caution issued by the UNSC Resolution 91 dated 30 March 1951. It relates to the authority of political parties on the Indian side of Kashmir.
3. J&K Government has agreements with Government of India prior to her going to the UNSC, in January 1948. J&K Government has also a Stand Still Agreement with the Government of Pakistan. On 15 January 1948 India has surrendered the conditional Agreement of 26 October 1947 for a UN supervised vote. Therefore the character of accession of 26 October 1947 has changed on 15 January 1948. India has made three prayers at the UNSC.
4. The Agreement of 27 October clarifies the following:
(a) When law and order is restored the question of State’s accession should be settled by a reference to the people.
(b) Indian army shall help Kashmir forces to defend the territory and to protect the lives, property and honour of people.
It is clear that the Indian army has to remain as a support and as a sub-ordinate force to perform four duties for a certain period. A voluntary withdrawal of these forces is also envisaged in the agreement and in the assurance given to British Prime Minister on 26 October, 1947 and to PM of Pakistan on 31 October, 1947.
5. Indian army has been given a good behavior certificate by Sheikh Muhammad Abdullah at the 241st meeting of UN SC held on 5 February 1948 as follows:
“There need be no fear, since the Indian Army is there, that this army will interfere in the exercise of a free vote. After all, a commission of the Security Council will be there in order to watch. The Indian Army does not have to go into every village. It will be stationed at certain strategic points, so that in the event of danger from any border, the army will be there to protect that border. The army is there to curb disorders anywhere in the State; that is all. The army will not be in each and every village in order to watch each and every vote.” The attendant caveat of the watch of the Commission is missing.
6. Indian Government has conceded at the 608 meeting of the UN Security Council on 8 December 1952 that, “…after careful examination and assessment by its experts, the Government of India had come to the conclusion that a minimum force of 28,000 was required to carry out its responsibilities.” Indian representative has stated, “However, on complete disbandment and disarmament of the Azad Kashmir forces, and as a further contribution towards a settlement, the Government of India is prepared to effect a further reduction of 7,000 to a figure of 21,000 which is absolute and irreducible minimum…. It should further be emphasized that this force will have no supporting arms such as armor or artillery.”
The behaviour, number and location of Indian security forces are contained in the UN SC Resolution of 21 April 1948. The two UN Reports on the Human Rights situation in Jammu and Kashmir have highlighted the question of a compensation and reparation to families in Kashmir (Indian side). The May 2018 Report by UN Secretary General has highlighted that minor Kashmiri boys are used to spy and this is a war crime.
Authority of Indian Government in Kashmir
1. Government of India does not have any authority to take the action of 5 August 2019. It cannot confer powers on itself to colonise part of Kashmir and strip its people of their rights held in perpetuation for the last 92 years and guaranteed in UN SC Resolutions.
2. India has admitted at the 533rd meeting of the UN Security Council held on 01 March 1951 that “the authority of the Government of India over the Government of Kashmir is limited to certain subjects; outside that sphere, it can only advise and cannot impose any decision.” This position has been maintained at page 4 in The State Autonomy Committee Report published in July 2000.
3. Gupkar Declaration has very right called any Indian action of the manner of 5 August 2019 an aggression. (Please refer to JKCHR document released at the UN as UNGA Document NGO6 attached). 5 August 2019 action is a kind of colonial occupation. It is unlawful and can’t be sustained.
4. The recommendation 17 and the recommendation 7 made to India and Pakistan in the OHCHR Report of 14 June 2018 is categorical. It has been made clear at the 773 Meeting of UN Security Council held on 20 February 1957 that, “…pending the holding of a plebiscite, neither India nor Pakistan can claim sovereignty over the State of Jammu and Kashmir.
5. Both India and Pakistan remain under a UN SC caution from 6 January 1948 in regards to the status of Jammu and Kashmir or in regard to any action in this respect. Indian authority in its part of Kashmir is explained in detail by CJ Janki Nath Wazir and J Shahmiri of Jammu and Kashmir High Court in the Maghar Singh Case of May 1953.
6. The impact of Article 370 on the residual internal sovereignty of the State is discussed in detail. It has also been discussed by the State Autonomy Committee Report published in July 2000.
7. On 27 August 1951 Office of South Asian Affairs and Office of United Nations Political and Security Affairs of United States prepared a document on Kashmir titled, “Kashmir Dispute: Future Action” . The document stated, “At some time in the course of our efforts, we might consider asking the Security Council to request the International Court of Justice to render an advisory opinion regarding the legality of the act of the Maharaja of Kashmir in signing an instrument of accession to India. If the ICJ finds the accession was invalid, this would knock out one of the principal Indian arguments supporting their occupation of Kashmir.” US had taken United Kingdom Foreign Office on board but later put the plan of going to ICJ on hold, fearing it might take considerable time. It is in line with the first proposal made to Pakistan and India on 22 November 1947, by British Prime Minister Attlee that he will help if the two countries desired to take the matter to ICJ.
8. India has accepted that Kashmir was the core issue with Pakistan. On 20 January 1948, India has conceded at the 230th meeting of the Security Council and Mr. GOPALASWAMI AYYANGAR said “We hope to be able to convince the Security Council that once we have dealt with the Kashmir question, there will probably not be anything of substance which will divide India and Pakistan to the extent of endangering international peace and security”.
9. India has admitted that it had a very limited authority on the Government of Jammu and Kashmir. At the 533rd meeting of the UN SC held on 01 March 1951 Para 43 India has admitted “There is a tendency in certain quarters to assume that this is just a dispute between India and Pakistan, and that the views of the lawful government of Kashmir need not be considered. This is a mistaken assumption. As I have already said, the authority of the Government of India over the Government of Kashmir is limited to certain subjects; outside that sphere, it can only advise and cannot impose any decision.”
10. National Conference has inherited a higher burden of responsibility. On 5 February 1948 when Sheikh Muhammad Abdullah addressed the 241st meeting of the UN Security Council he said, “After all, we are not logs of wood, we are not dolls. We must have an opinion one way or the other. The people of Kashmir are either in favour of Pakistan or in favour of India”. It is important to point out that Sheikh Sahib has mentioned the advantages and disadvantages “attached to each of the three alternatives.”
11. Government of India has admitted at the 533rd meeting of Security Council held on 01 March 1951 and the representative said, “My intention also is to emphasize the human aspect of the problem. The people of Kashmir are not mere chattels to be disposed of according to a rigid formula; their future must be decided in their own interests and in accordance with their own desires. The population of the State is gradually settling down to some measure of peace and order. Any neutral visitor to Kashmir – and there are many such during the tourist season – can satisfy himself as to the facts of the situation.”
12. Narasimha Rao’s doctrine “sky is the limit’ and Atal Bihari Vajpayee’s doctrine of ‘Insaniyat, Jamhuriyat, Kashmiriyat’, have remained in the close vicinity of Indian position on Kashmir at the UN Security Council. The five commission appointed on Kashmir in 2006 were a step further in Manmohan Sigh’s Government.
13. Dr. Farooq sahib, a very special duty that was taken upon by your illustrious father and Great Leader of Kashmir on his shoulders at the 241st meeting of UN SC held on 5 February 1948, has fallen on your shoulders and on the shoulders of your able colleagues in these most difficult circumstances. Sheikh Sahib said at the Security Council, “It will be my duty to request my brothers, who are in a different camp at this time, to come lend me support. After all, they are my own kith and kin. We have suffered together; we have no quarrel with them. I shall tell them: “Come on; it is my country; it is your country. I have been asked to administer the State. Are you prepared to lend me support? It is for me to make the administration successful; it is for me to make the administration look impartial”.
14. Dr. Farooq sahib the State Government reserves the right to terminate the presence of Indian security forces in Kashmir. These forces have no scope to be there beyond a 21,000 non-arms bearing personnel requested by India. In this regard Sheikh Sahib has said at the UN SC, “However, what is the present situation? If I ask the Indian Army to clear out, how am I going to protect the people from the looting, arson, murder, and abduction with which they have been faced all these long months? What is the alternative? The Prime Minister of India long ago declared that the Government of India has no intention of keeping its army permanently stationed in Kashmir. He stated: “We are there only as long as the country is in turmoil. Once law and order are established, once the marauders and the tribesmen leave the country, we will withdraw our army,” That pledge is already there. (Sheikh Abdullah at 241st meeting of the UN Security Council held on 5 February 1948).
Peculiar Features of Kashmir Case
1. Definition of People: Kashmir is not a case of Muslims only. The people of Kashmir have been defined and their case has been interpreted by the leading jurists and scholars of the world at the UN SC.
2. People – Dr. P Graham has described the people “They are a people of legend, song and story, associated with snow-capped mountains, beautiful valleys and life-giving waters”.
These people, Moslems, Hindus, Sikhs and Christians, as farmers, craftsmen and artists, small shopkeepers, boatmen, bearers and other workers in areas now on both sides of the cease- fire line, have been, through the centuries, the victims of exploitation and conflict.
The recognition of the rights and dignity, the security and the self-determination of these historic people, under the auspices of the United Nations, might well become a challenging example of the progressive values of self-determination to the dependent peoples of the earth.
3. We are a people of legend and historic people. UN has recognised our “rights and dignity, the security and the self-determination”. (Para 60 570th meeting of UN SC held on 17 January 1952).
4. India and Pakistan are a consequence of our case as a People. How they work and enlarge their constituencies remains a secondary and important issue. They cannot wrong our people and habitat and claim to rule us without our consent. Both countries have their constituencies and India has to refer itself to a UN supervised vote and an engagement with Pakistan would begin as a consequence of a UN supervised vote in accordance with article 257 of its constitution.
5. India is not Great Britain and BJP is not the East India Company. It is important to be reminded of the fact that RSS has taken out an anti-Muslim procession on 21 December 1931 on the streets of Lahore against the Muslims of Kashmir and in the support of the Maharaja and his forces in Kashmir. RSS backed action of 5 August 2019 has no merit and force in Law. It is a colonial occupation.
6. Indian calculation that Pakistan could not find a proportionate and pointed response to Indian action may have some merit. It is also true that India shall have to face the consequences of waging a war on the people and habitat of Kashmir. There are reports of a secret dialogue going on between the two countries. We wish them well and caution them that Kashmir is not a territorial issue and the territory on its own does not have a role. It is a people’s right to self-determination and the process to determine this has to be supervised by UN under the UN Template and certified as free, fair and impartial.
7. History would not support Indian forced occupation and she cannot coexist with our future generations, unless she vacates her action of 5 August 2019. The State Autonomy Committee commissioned in 1996, has brought out a good report in July 2000. We see that it has missed a very vital point, which is, that even after signing a ‘contested’ instrument of accession on 26 October 1947, the Indian citizens required an entry permit to visit Kashmir until 31 March 1959. The requirement was rescinded by PM of Kashmir on 31 march 1959.
8. Government of India has ruled Jammu and Kashmir through IB (page 205 A S Dulat’s Book-Kashmir the Vajpayee years). We have been helped by many good and conscientious Indians and wronged by our own elected people. We do not live in 1846, 1931, 1947 and 1990 anymore. India can’t negotiate with Pakistan or vice versa behind the backs of the people of Jammu and Kashmir.
9. After the UN SC caution of 6 January 1948, China has reminded India and Pakistan as follows:
a) Para 68 “This dispute has another peculiar feature. From the very beginning, the Council began with an agreement between two parties. In fact, before the two parties directly concerned ever appeared before the Council, the two parties agreed that the plebiscite should be the answer. What did the Council do? The Council tried to build a solution on this prior agreement that the two parties had before they came to this Council. So the idea of a plebiscite was not imposed by the Council on the two parties.” (765th meeting of UN SC held on 24 January 1957).
b) Para 69. In their public statements the statesmen of both countries, India and Pakistan, have stated that they would be willing to let the wishes of the people of Kashmir decide the future of that State. In this Council, in his very first statement in January 1948, the representative of India, Mr. Gopalaswami Ayyangar, had this to say: “The question of the future status of Kashmir vis-a-vis her neighbours and the world at large, and a further question, namely, whether she should withdraw from her accession to India, and either accede to Pakistan or remain independent, with a right to claim admission as a Member of the United Nations- all this we have recognized to be a matter for unfettered decision by the people of Kashmir, after normal life is restored to them.” [227th meeting, p.29.]
10. Great Britain (Permanent Member) has argued that, “The ultimate objective of a fair and impartial plebiscite under the auspices of the United Nations ….has been written into solemn agreements by the two Governments and endorsed by this Security Council. These agreements have been affirmed and reaffirmed by the two governments many times.” (UK representative Sir Gladwyn Jebb at the 606 meeting of the UN Security Council on 6 November 1952).
11. It is important that after failing in engagement under article 130 of UN Charter, India and Pakistan decided to make a reference to UN SC. United Nations encourages a bilateral engagement. However, it cannot be infinite. United States of America (Permanent Member) has said, “The Security Council will, ‘always welcome any agreement which the parties themselves can reach on any basis which will settle the dispute, provided of course that, that basis is consistent with the principles of the Charter of the United Nations. Security Council had a ‘positive duty’ and ‘unless the parties are able to agree upon some other solution, the solution which was recommended by the Security Council should prevail.” (United States of America at the 768th meeting of the UN Security Council held on 15 February 1957).
12. There is no exit ramp for India or Pakistan from the UN template on Kashmir. Their present behind the doors engagement would not override the UN framework finalised on Kashmir. France (Permanent Member) has said, “Resolutions of 13 August 1948 and 5 January, to which we must always return because they won the express agreement of both India and Pakistan. If the parties are unable to reach agreement on the plan submitted to them, provision is made for arbitration, and, to make assurance doubly sure, arbitration is to be carried out by an arbitrator or panel of arbitrators appointed not by a political body but by the President of International Court of Justice.” (France at the 539th meeting of the UN Security Council held on 30 March 1951).
13. We should keep in mind that the claims of India and Pakistan on Kashmir are a consequence of Kashmiri’s right to self-determination. They cannot hurt the principality of the people of Kashmir and confer any favours or interests to each other without a reference to the case of Kashmir. Netherlands have argued that:
a) “The lack of agreement therefore, does not concern this right of selfdetermination. It concerns the ways and means and procedures to establish the conditions for a fair expression of the will of the people of the State of Jammu and Kashmir who want to make their choice free from any kind of fear or intimidation.” (Netherlands 566th Meeting of UN Security Council held on 10 November 1951).
b) “The issue should, in the last analysis, be decided by the people of the State of Jammu and Kashmir themselves, and not the rulers heretofore placed over them, and that no prearranged political organization in any part of the State concerned, and set up under the auspices of authorities which had already made their, choice should interfere with their complete freedom of choice.” (Netherlands 566th meeting of UN Security Council held on 10 November 1951).
Perpetuity of the Kashmir Case
1. Kashmir has been referred to UN jurisdiction. Rule 10 of Rules of Procedure of UN Security Council grants perpetuity to it. It should not disappoint us that UN SC could not do much on Kashmir for the last 73 years. It is not correct. We did not raise Kashmir at the UN SC for 31 years from November 1965 to August 1996.
2. UN SC has perfected a Template on Kashmir. It has stationed UN Military Observer Group on either side of cease fire line. It appointed a UN Representative for India and Pakistan to seek demilitarization and appointed a Plebiscite Administrator to conduct a secure and fair Plebiscite in Kashmir. The Plebiscite Administrator set up his office in the State Department and had 01 November 1950 set as the date for finalising the Plebiscite. Indian and Pakistan diplomats paid a courtesy call on him in March 1950. Pakistan had proposed Plebiscite in the spring of 1948 and Britain had proposed to hold it before October 1948 to avoid snow. It has not happened.
3. United Nations Secretary General Dag Hammarskjöld visited Srinagar on 20 March 1959, to assess the political and economic conditions of the people. He was accompanied among many other by Liet. General Robert H Nimo, Chief of the UN Military Observer Group in India and Pakistan (UNMOGIP). On 20 March 1959 the Secretary General was entertained at a dinner given by the Prime Minister of Jammu and Kashmir, Bakshi Ghulam Mohammad.
14. It is 59 years after the first visit of UN Secretary General to Srinagar, United Nations High Commissioner for Human Rights produced two exclusive reports on the Human Rights Situation in Jammu and Kashmir. UN Secretary General’s report makes a reference to Kashmiri children in armed conflict. OHCHR could not be deterred by the decision of Indian Government not to allow his office entry into Kashmir.
15. The two reports have used a “reasonable grounds” standard of proof. OHCHR has succeeded to seek results by using “remote monitoring” and “reasonable grounds” standard of proof. It is a great success.
What has India done on 5 August 2019?
Indian Government does not have any authority to take actions of the manner of 5 August 2019. Indian Government in response of UN SC caution of 6 January 1948 (identical appeals sent to India and Pakistan) has confirmed its compliance in writing on 9 January 1948 to the President of the UN SC. India has yielded to the jurisdiction of UN Security Council. How does the UN template describe this action? The answer is as follows:
1. It has been made clear at the UN Security Council that “The party that would dare to violate an agreement thus reached would load upon itself a very grave offence against the other party, against the United Nations, and against the right of the people of Jammu and Kashmir to self-determination, a right which, in other contexts, both parties have so often and so eloquently defended.” India without doubt has “loaded upon itself a very grave offence.” This offence has been committed against three parties namely, “the other party, United Nations, and against the right of the people of Jammu and Kashmir to self-determination.”
2. Therefore there is a just cause to formulate an urgent response jointly and severally. We need not wait whether Pakistan finds a cause to check the “very grave offence” committed by India or not. The People of Jammu and Kashmir are specifically named as a party in the UN Template against which India has committed a “very grave offence”. United Nations is also an aggrieved party. So the people of Kashmir have a cause to seek cooperation and help from Pakistan and UN as the two other parties against the Indian action of 5 August 2019.
Kashmir is a plural society. It is unfortunate that 2.5 million Kashmiri Muslims have been displaced from their homes and five generations have been waiting to return in safety and dignity as envisaged in Para 14 (a) of UN SC Resolution 47 of 21 April 1948. The Muslims were also displaced along with Kashmiri Pandits in 1990. It is unfortunate and regrettable that Kashmiri Pandit was also a one-time victim in 1990. JKCHR has always raised the issue of KP’s exodus and defended their rights.
We sincerely hope that the issue discussed above will help PAGD to refresh and perfect its preparation to engage the Prime Minister of India and his team across the table on June 24th. We do not want that your meeting should end it up as the Hurriyat Meetings ended up with PM Vajpayee and Mr. L K Advani – for reasons of unpreparedness on their part.
We have a UN template on our side and other agreements that India has made with the people of Jammu and Kashmir before it decided to make a reference to UN Security Council. Pakistan has submitted at the UN SC that “accession to India would tantamount to signing a death warrant”. We need to examine its merits.
Any push back or change of horse’s mid-stream (I hope not), by Pakistan should not deter us from our historical struggle for rights and equality. Indian government has gone crazy on 5 August 2019. It does not mean that we would not challenge her aggression and colonisation in Indian Courts and at the UN.
Kashmir has survived through centuries of victimization. We were survived centuries of oppression, have faced dehumanizing taxes on circumcision of our children, have been hanged for fishing as a religious punishment from Non-Muslims, our elders have been exchanged for a Chinese dog, we have died like rats in famines and earthquakes and endured other occupations in the history. We have survived.
Today we are spread all over the world and are known for the merits of our good work. Let us not fail our own people in any part of the State. I sincerely hope that the engagement is not sabotaged. If it takes off – please don’t conclude it.
There is a need to have a team of Kashmiris from all the three administrations of Jammu and Kashmir, from the 2.5 million Refugees living in Pakistan, from Kashmiri diaspora and any well-wisher (expert) to short list Kashmiri agenda/grievances. If you require to discuss any one of the above points raised I can answer the queries of your members on Zoom.
In the interim, our first and foremost demands should be:
1. That Government of India vacates her action of 5August 2019
2. Keeps 21 thousand non-arms bearing soldiers in Kashmir as requested at the UN SC
3. Honours the discipline imposed on Indian security forces in the Instrument of Accession and in the UN SC Resolution 47 of 21 April 1948
4. Complies with OHCHR Report’s recommendation number 17
5. Until the implementation of UN template Government of India accepts the Canadian proposal “to afford security to the peoples of Jammu and Kashmir under some authority which will be recognized by everyone concerned as strictly impartial; and, most important, to provide for a Plebiscite of the people in which all of them will be permitted to express without fear or favour their wishes as to the future government of the State.”
Dr. Farooq sahib we wish you and your colleague in PAGD a successful engagement on 24th June.
Imtiaz Gul is the Chief Editor, Matrix Mag and Farhana Kanwal is a Peace and Conflict Studies’ researcher at the Center for Research and Security Studies (CRSS), Islamabad.
