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Kashmir: Legal status and Indian designs.

Byline: Dr Raja Muhammad Khan

Now a days, a debate is going on in India, whether to abrogate Article 370 of Indian Constitution, which gives Indian held Jammu and Kashmir, a special status. For the Indian leaders, especially BJP, as an election promise, Article 370 is an irritant and they are making grounds for doing away with it. Nevertheless, for the people of occupied Kashmir, Indian occupation, its brutalities and daily crackdowns and human rights violations really matter. For them Article 370 is a symbol of foreign occupation, thus a curse and its abrogation or otherwise would not matter, until they get their right of self-determination.

In the first instance, they just want that, Indian must stop repression and human rights violations, which it perpetrates through its security forces. Subsequently, they would like implementation of UN resolutions (right of self-determination), through UN sponsored plebiscite. Whether Indian occupation or imposition of Article 370, it is Indian rule over occupied Jammu and Kashmir, which Kashmiris are fighting against ever since 1947. Either Article 370 or Indian occupation, there is no legitimacy in Indian claim over the state of Jammu and Kashmir.

While tracing the history of the state, one would find many discriminations and inhuman handling of Kashmiri masses by occupation forces. The current phase of sufferings of the Kashmir people started with decolonization of Subcontinent in 1947. Sequel to the announcement of Indian partition plan, by British Indian Government on June 3, 1947, the British Parliament formally passed, the "Indian Independence Act", on July 17, 1947.

According to Article 1 of this act, Indian independence and formation of two states, India and Pakistan was to be accomplished from August 15, 1947. Article 7 of the Act, very clearly states that from 15th August 1947, "the suzerainty of His Majesty over the Indian states lapse and with it lapses all treaties and agreements enforce at the date of the passing of this Act between His Majesty and the rulers of Indian states".

There were over five hundred sixty Princely states in British India at the time of its partition. As per Indian Independence Act, all agreements of British governments with either rulers or states also lapsed on 15th of August 1947. Since the state of Jammu and Kashmir was a Princely State with a special autonomous status, therefore, it can be very conveniently said, that on 15th day of August 1947, the Maharaja Sir Hari Singh was not the legal ruler of the state of Jammu and Kashmir as all his treaties with British India lapsed on that day.

Once he was not a legal ruler of the state, he had no right to sign the instrument of accession (if at all he signed that) with the new Indian dominion. This title to the state was granted to him by the British Government (East India Company) under the Treaty of Amritsar (Kashmir Sale deed) signed on 16 March 1846 and lapsed on the appointed day of 15th August 1947.

Besides, on July 25, 1947 in his address to special full meetings of the Chamber of Princes held in New Delhi, Lord Mountbatten categorically told all princes of Princely States that they were practically free to join any one of dominions; India or Pakistan.

He however clarified that, while acceding to any dominion they could take into account geographical contiguity and wishes of the people. In case of the State of Jammu and Kashmir, either of the above factors was favouring state's accession to Pakistan, which were not implemented, the first and most significant violation of Indian Independence Act.

The Indian claim that its forces landed Srinagar Airport on October 27, 1947, only after signatures on Instrument of Accession by Maharaja and the Indian government, is also fallacious. Indeed, a heavy contingent of Patiala State was involved in fighting against the Kashmiri rebellions in Uri Sector on 18 October 1947, which means that they were very much inside the State's territory much earlier than October 27, 1947.

On 24 October 1947, Kashmiris formally declared their independence from Dogra Raj and established their own government with the name of Azad (Free) Kashmir Government. Following this Maharaja Hari Singh sent his deputy Prime Minister Mr. R.L. Batra to New Delhi, requesting Indian military assistance. The Indian Government however, conditioned the military assistance with state's accession to India, which Maharaja Harisingh never desired.

British historian like Alastair Lamb and Victoria Schofield contested in their writings about the signing of any Instrument of Accession between Maharaja Harisingh and India before October 27, 1947. V.P. Menon, Indian civil servant, however, claimed that all these formalities of signatures were completed on 26 October 1947, which is even contradicted by then Kashmiri Prime Minister Mahajan. Both however are unanimous on one point that Indian state forces landed at Srinagar airfield in the morning of 27 October 1947.

Even if there is an instrument of accession between Maharaja Hari Singh and Indian government, it provides a number of safeguards to the state's sovereignty, e.g. Clause 7 of the instrument says, "Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future constitution of India ...". Whereas, Clause 8 of the Instruments says, "Nothing in this Instrument affects the continuance of my sovereignty in and over this state.......".

If it is accepted that, there was an instrument of accession, signed by the Maharaja and Indian government, even then, it clearly states, that, "after the restoration of law and order in the State of Jammu and Kashmir and the expulsion of the raiders, its future will be decided in accordance with the wishes of the people of the State."

The same stance was taken by UNO in its over 23 resolutions, passed from time to time. Besides, over the years, Indian leadership had been reiterating their commitments to Kashmiris, Government of Pakistan and to the world community that after the restoration of peace in the state, its future would be decided as per the wishes of the people of Jammu and Kashmir through UN mandated plebiscite. A top-secret letter addressed to British Government by Mr Alexander Symon, UK High Commissioner to India, also reveals that, despite a formal accession treaty, ten Indian aircrafts loaded with arms and troops were dispatched to Kashmir from New Delhi on the morning of 27 October 1947.

Another significant fact is that, had there been any accession treaty between the state of Jammu and Kashmir and the Indian government, why it could not be published in the Indian White Paper of 1948? Yet another very serious reservation arises, had Kashmir been part of the Indian Union, why it was given a special status through Article 370 of the Indian constitution, which has not been given to any of integral Indian state(s).

On its part, UN through its resolutions; 2017, 30 March 1951 and 3779, January 24, 1957, clarified that, "any action which Kashmir Constituent Assembly may have taken or might attempt to take to determine the future shape of state or any of its part would not constitute the disposition of the state and that election of State's Constituent Assembly cannot be a substitute for plebiscite." Therefore, India and IHK Legislative Assembly cannot declare Kashmir as integral part of India, which India manipulated in mid 1950s through a fake Assembly in a blatant violation of the UNSC resolutions, to which India is a party.

The facts mentioned above clearly prove that, Indian claim over the occupied state of Jammu and Kashmir is illegitimate and against the international law and human rights charter. Through forceful occupation of the state, India is negating its own commitment with Kashmiris, Pakistan and world community. For Kashmiris, Article 370 is nothing except continuation of Indian rule.

Now, through the abrogation of this Article, BJP led Indian Government intends complete accession of the state of Jammu and Kashmir with Indian Union. In order to do that, BJP has worked out a strategy to manipulate the forthcoming State's election in IHK, the way Nehru did in mid 1950s, after imprisoning Sheikh Abdullah. Once there would be majority seats of BJP and its alliance in assembly, India can get the results of its own choice, against the wishes of masses.

Through a well-orchestrated strategy, Modi Government is all set to get maximum Legislative Assembly seats from Jammu and Ladekh provinces. Thereafter, Modi Government will have sufficient maneuvering space to bring demographic changes in the state. Thus, there is a need that, Kashmiris from all regions and through their Diaspora across the world should contest this move of Modi Government by raising their voices at the international level.

The Government of Pakistan, being an important party to the dispute, must mobilize its diplomatic corps to highlight concerns of Kashmiri people at the global level. United Nations and civilized international community must play its role by stopping India from human rights violations and give Kashmiris their basic right of self-determination. By no way, should the India be allowed to act as an expansionist state, through further cementing its hold over the occupied state.
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Publication:Frontier Post (Peshawar, Pakistan)
Geographic Code:9PAKI
Date:Sep 3, 2014
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