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Revamping the Kashmir Policy

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Justice Retired Muzaffar Ali

By the end of the British rule in the subcontinent, Congress was expecting rule over United India, exclusively. The struggle failed when the Muslim League hit the nail on the head. Lastly, under compulsion of the situation, the Hindu leaders agreed on the partition of the subcontinent half-heartedly. But, showed their true colors and attempted encroaches, captured Junagarh State, and intruded the Indian army into the State of J&K under the cloak of “accession deed” by Maharaja Kashmir. Kashmiris stood against with arms, liberated a portion of the State, and proceeded to repel the Indian army from occupied J&K. Nehru, facing the defeat, went to the UNO with a complaint. The matter was referred to Security Council to investigate under chapter-VI of the UN Charter.

The Security Council, on the basis of reports received, declared the situation “likely to endanger the maintenance of international peace and security”. It formulated a peaceful settlement and passed various resolutions from 1948 up to 1998, wherein, the Security Council rejected the contention of India to occupy Kashmir on the basis of so-called accession deed but, accepted the democratic right of people of J&K, and determined, “the future of the state of Jammu and Kashmir shall be decided through the democratic method of a free and impartial plebiscite conducted under the auspices of United Nations.”

All the resolutions and the reports of the Security Council witness that, India waived its contention of accession and accepted the democratic right of plebiscite in the State of J&K, as the right of self-determination of Kashmiris either to opt Pakistan or India. Waiver: is a legal term. The dictum amounts to “promissory estoppel.” Despite being estopped, India gave a broad hint in article-370 of its constitution. The plain reading of the same jolts a reader’s mind while reading the word “accession deed” in it and it sounds powers of the Indian president about the accession of the State to the dominion of India. In fact, article-370 in the constitution of India was the first step to digest the entire state of J&K.

India showed her true colors and the black day, 5th August 2019 reached. India trashed all the resolutions made by Security Council and also buried her own pledge to Security Council. Merged the entire J&K State and even region of Gilgit-Baltistan and Azad Kashmir is declared as an integral constitutional part of it. Denied working boundary and control line, dragged its international boundary with Pakistan up to the province of KPK in its “New Political Map” recently published.

The above illegal act of India is, in fact, a denial of the UN Charter and also, is a threat to world peace. The Security Council must, in all conscience, was to use its powers under chapter-VII of the UN Charter and, at least, had to impose sanctions under article-41 of the same but, the Security Council of UNO seems to be a spectator without any action which amounts implied acquiescence.

The Kashmir issue, in fact, is between India and Pakistan as an unfinished agenda of partition. Quaid-e-Azam called Kashmir as jugular vein of Pakistan. Both the countries were party before Security Council with their own contentions. India was standing as claimant of Kashmir State on the basis of accession by the Maharaja Kashmir but, the Security Council rejected India’s stance of accession while, Pakistan’s stance before the Security Council was that, the people of Kashmir are willing to be part of Pakistan which is still standing and the security council also accepted the contention of Pakistan after introducing the peaceful method of the plebiscite by Kashmiri people.

All the above stated illegal measures adopted by India are having no foundation as India has already abandoned its contention of succession deed in favor of India but Pakistan, it takes such measures to hold the State of J&K as an integral part of Pakistan, then neither the measures can be called against any resolution nor India has any right to object the scheme, because, since 1947, people of Kashmir have struggled and sacrificed their lives for Pakistan. Even, since 5th August 2019, the inhabitants in Kashmir did not accept their status of union territory given to the region. The occupied Kashmir is cordoned by the Indian army and facing severe atrocities but to my surprise, the government of Pakistan ceremoniously tackles the latest development in the State of Kashmir with some agitations.

The government of Pakistan needs to frame a think-tank committee consisting of intellectuals who have deeply studied the Kashmir issue since 1947 up-to-date. Required recommendations of well-versed institutes of Kashmir studies and serious decisions are needed to be made by revamping Kashmir policy. Otherwise, with the passage of time, the trickery India would be succeeded to gain the confidence of the world to pretend the State of Kashmir is its integral part and also, can attempt aggressive actions against Gilgit-Baltistan and Azad Kashmir, claiming the regions as an integral constitutional part of India.

In my opinion, after a thorough study of at least all the documents relevant to the Kashmir issue and to spike India’s guns, it is important to declare the entire J&K State, including the occupied J&K, as an integral constitutional part of Pakistan to catch the Modi in the net he knitted against Pakistan. The new constitutional amendments can be covered by a proviso with the effect that the new constitutional settlement would be operative pending disposal of Kashmir issue under the method of plebiscite in Kashmir introduced by Security Council in its resolutions. It is worth mentioning here that, just protests against the illegal occupation of Kashmir are not sufficient to awaken the conscience of superpowers unless a big serious action, like merging the state of Kashmir into Pakistan constitutionally, is taken.

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Justice Retired Muzaffar Ali has served as the former judge of the Supreme Appellate Court of Gilgit-Baltistan. After his retirement, he regularly writes about the legal aspects of the constitutional rights of Gilgit-Baltistan.

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