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Jammu & Kashmir: What happens if India repeals Articles 35-A and 370 of its Constitution?

Amjed Jaaved

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India’s Union minister Jaitley declared, `Article 35 A [of India’s Constitution] was “surreptitiously” included in the Indian Constitution. It was a “historical blunder” committed by Jawaharlal Nehru”’. His rant stimulated former chief minister `Mehbooba Mufti to warn (March 31, 2019) ` if Article 370, which guarantees special status to J&K, is done away with, the state’s relation with India will be over’.

While addressing party workers in Srinagar, Mehbooba said, `Article 370 is a bridge and the Constitution of India applies to us through it. And when you break that bridge, how come this Mehbooba Mufti, who swears by the constitution of J&K and India, will take oath? Then you will have to redefine the relations between India and Kashmir’.

Article 35A empowers IHK puppet government to `define a class of persons as constituting “permanent residents” of the disputed state and `to allow the government to confer on these persons special rights and privileges with respect to matters of public employment and acquisition of immovable property in the state’. In addition, `it grants immunity to such special rights and privileges legislation from being annulled on the ground that they infringe one or the other of the fundamental constitutional rights’.

Article 35A was included into the Constitution of India in 1954 by a presidential order made under Article 370 of the Constitution of India. The basic principles committee of the J&K Constituent Assembly, which was set up in 1951, presented its report to the Constituent Assembly in February 1954. As a part of the report, an annexure which listed out the provisions of the Constitution of India, besides Articles 1 and 370, that should be made applicable to J&K. This annexure included, among other Articles, Article 35A.

Background

Sheikh Abdullah befooled

Pandit Jawahar Lal Kaul (assumed surname Nehru) befooled Sheikh Abdullah to stab Pakistan in the back. Barkha Dutt recalls (This Unquiet Land, p. 154) `In a 1948 speech to the United Nations, Sheikh Abdullah, the most formidable political leader the state of Jammu and Kashmir had ever seen, made a blistering defence of the accession to India. Sher-e-Kashmir (Lion of Kashmir) roared, :I had thought all along that the world had got rid of Hitlers…but what is happening in my poor country I am convinced that they have transmigrated their souls into Pakistan…I refuse to accept Pakistan as a party in the affairs of Jammu and Kashmir’.

Dutt says, “Sheikh Abdullah [later] began to talk about possibility of independent Kashmir….Soon after he changed his stance he was jailed and dismissed from office and was not able to lead the state for another twenty years’. Dutt analyses that even azadi (freedom) slogan was a ruse to push back `Jammu ko alag karo’ (separate the Jammu) slogan raised by Balraj Madhok’s Bharatiya Jana Singh (precursor to BJP). `The Sheikh’s clash was not just with Nehru, but closer home, with the praja parishad [local political party] of Jammu’.

How India whittled down `special status’?

India through a series of steps whittled down Kashmir’s special status under Article 370 and 35-A of India’s Constitution. Governor replaced sadr-e-riast (head of J&K State) who could conveniently dismiss wazir-e-riast (re-desgnated chief minister).

Indian government dismissed its own ally, Mehbooba Mufti’s government. She outlawed several parities including Jama’at-e-Islami under handy label `separatist’. Kaswhmiri pedestrian and vehicles were ordered not to go anywhere near military convoys. About 800,000 troops were directed to carry on day-and-night searches, pick-up `suspects; and consigns them to military custody incognito. To humiliate Kashmiri leaders, they were called upon to explain their source of income. Even religious leader, Mirwaiz of Kashmir was not spared. He was summoned to New Delhi to explain `are you with India, or without’. To me them fearful of assassinations, they were deprived of security cover.

`Special status’ on judicial anvil

A petition was filed in India’s Supreme Court to do away with so called `special status. While Kashmiri leaders begged for election, their fate of total integration hangs in hands of petition pending with India’s Supreme Court.

OIC’s veiw

Organisation of Islamic Countries expressed ennui at plight of Kashmiris under Indian yoke India. The OIC reminded India that her rhetoric about accession and `integral part’ is a hoax. OIC echoed renowned historian Alastair Lamb’s concerns. He regards the Instrument of Accession, ‘signed’ by the maharajah of Kashmir on October 26, 1947, as fraudulent (Kashmir – A disputed legacy 1846-1990).

United Nations’ view of `accession’

Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions to forestall the `foreseeable accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and affirmative Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state.

 Under hypnotic spell of Indian propaganda, readers naively accept IHK’s `assembly’ and preceding `instrument of accession’ as fait accompli. No sir, they aren’t. Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the sham assembly, the Security Council passed two resolutions to forestall the foreseeable` accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state.

`Accession instrument’ is a myth, unregistered with the UN. Alastair Lamb, in his book Incomplete Partition (Chapter VI: The accession Crisis, pp.  149-151) points out that Mountbatten wanted India not to intervene militarily without first getting `instrument of accession’ from maharajah Hari Singh.  Not doing so would amount to `intervening in the internal affairs of what was to all intents and purposes an independent State in the throes of civil conflict’.  But, India did not heed his advice. It marched its troops into Kashmir without maharajah‘s permission _ an act of aggression. Lamb says `timing of the alleged Instrument of Accession undoubtedly affected its legitimacy'(p.172, ibid). She adds `If in fact took place after the Indian intervention, then it could well be argued that it was either done under Indian duress or to regularise an Indian fait accompli’.

He argues that the maharajah was travelling by road to Jammu (a distance of over 350 km). How could he sign the instrument while being on the run for safety of his life? There is no evidence of any contact between him and the Indian emissaries on October 26, 1947. Actually, it was on October 27, 1947 that the maharajah was informed by MC Mahajan and VP Menon (who had flown into Srinagar) that an Instrument of Accession is being fabricated in New Delhi. Obviously, the maharajah could not have signed the instrument earlier than October 27, 1947. The instrument remains null and void, even if the maharajah had actually signed it. The reason, as pointed out by Alastair is that the `signatures’ were obtained under coercion. Under law, any undertaking secured through coercion or duress is null and void. She points out Indian troops had already arrived at and secured Srinagar airfield during the middle of October 1947. On October 26, 1947, a further airlift of thousands of Indian troops to Kashmir took place. She questions: “Would the maharajah have signed the Instrument of Accession, had the Indian troops not been on Kashmiri soil?” Isn’t it funny that, in the summer of 1995, the Indian authorities reported the original document as lost or stolen?

Lamb concludes (p. 191, ibid):`According to Wolpert, V. P. Menon returned to Delhi from Srinagar on the morning of 26 October with no signed Instrument of Accession.  Only after the Indian troops had started landing at Srinagar airfield on the morning of 27 October did V. P.   Menon and M. C. Mahajan set out from Delhi from Jammu. The Instrument of Accession, according to Wolpert, was only signed by Maharajah Sir Hari Singh after Indian troops had assumed control of the Jammu and Kashmir State’s summer capital,  Srinagar’.

Historical blunder

The real blunder was not introduction of Article 35A, but accession to India, through a resolution of null-and-void constituent assembly. To forestall the `foreseeable accession’ by the puppet assembly, the Security Council passed two resolutions,  Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957. These resolutions outlawed accession or any other action to change status of the Jammu and Kashmir state. For one thing, even `Accession instrument’ is a myth, unregistered with the UN. Let us put aside above UN resolutions and let India repeal Article 35A. What will happen? This will revert the disputed state back to a quasi-sovereign status, with its own prime minister and president. The state subjects of disputed Kashmir will cease to be citizens of India. Entry of Indian nationals into disputed Kashmir will be obstructed. The goods from India will have to pass through a customs barrier to pay an import duty. And, above all, the Kashmiri people will not be legally obliged to uphold the integrity and sovereignty of India. By swoosh of repeal, India’s nemesis, Pro-freedom parties (so-called separatists) will become mainstream stakeholders.

Legal view

To quote A G Noorani (Dawn August 11, 2019), “Article 35-A is not a mere executive order under Article 370 but is itself a constitutional provision, a compact recorded in both constitutions. No court can ignore this. As the Privy Council held, ‘parliament could as a matter of abstract law’ repeal the statute of Westminster recognising the independence of the dominions. But that is theory and has no relation to realities.”

The threat to Article 35-A poses an existential threat to disputed Kashmir. Curbs on alienation of hereditary occupancy of lands existed in Kashmir since times immemorial.

In 1922, the princely state’s council of ministers imposed curbs on employment of outsiders in administration, as well as “all grants of land for agricultural and house-building purpose and grant of houses and other state property shall be made to state subjects only”. A notification in April 1927 defined them.

The basic principles committee set up by the J&K constituent assembly presented its report on Feb 3, 1954. “All these fundamental rights should be subject to the overriding condition that: (i) no law of [J&K] relating to [J&K] subjects to be hereafter called ‘permanent residents’ and regulating their rights and privileges; and (ii) no law hereafter to be made by the [J&K] legislature defining the permanent residents and conferring on them special rights and privileges in relation to acquisition and holding of property in [J&K] or in the matter of employment under [J&K] and imposing restrictions on citizens other than permanent residents for settling within [J&K] should become void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Part III of Constitution of India.”

On Feb 11, 1954, the report of the drafting committee was presented to the constituent assembly, in which an annexure set out the provisions of the Indian constitution, besides Articles 1 and 370 that should apply to J&K. Obviously; this annexure had been settled with the Indian government. Article 35-A was among them. On Feb 15, Girdhari Lal Dogra moved that a copy of the annexure be sent to the Indian government “for appropriate action”. On May 17, the president’s order under Article 370 followed, inserting, among other provisions, Article 35-A in the constitution.

Article 370 of India’s constitution records a compact between the centre and Kashmir, so does Article 35-A. Articles 370 and 35-A are a symbiotic twin, which was negotiated over May to October 1949. It was agreed between Jawaharlal Nehru and J&K’s delegation headed by Sheikh Abdullah. Nehru recorded it in a note dated July 20, 1952. The terms of the agreement were explained to the Indian parliament (Lok Sabha) and to the J&K constituent assembly.

Article 35-A was added to the constitution of India through the presidential order of 1954 issued by the first president Rajendra Prashad on May 14, 1954 in exercise of the powers conferred by clause (1) of Article 370. Article 35-A empowers the J&K legislature to define permanent residents of the state. The J&K adopted its own constitution on 17th November 1956 and defined the person who could be the permanent resident of the state.

Background to state-subject law

The background of state subject law is as old as the geographical and cultural history of Kashmir exists. The permit system known as “Rahdari” for the exit and entry into the state existed even during medieval and ancient periods of Kashmir. The state subject provisions got the legal shape only when Maharaja Hari Singh in 1927 enacted a law known as state subject or permanent residency law. The dogras were apprehensive that better educated people from east and west Punjab would migrate to Kashmir and dominate government services due to their advancement in education. Major portion of government service posts were occupied by either KPs or dogras in J&K state during dogra  rule. A very negligible percentage of Muslims were given jobs in government. During dogra rule, the British Government used to send their medical teams from England to treat Kashmiri patients. Even they were not allowed to over-stay sis-monthly sojourn.  

Myopic Kashmiris did nothing to stop special-status erosion

Leaders of the mainstream political parties connived at erosion of the terms of accession through amendments to disputed-Kashmir constitution and Article 370

What to do?

The time is ripe for Kashmiris to review Kashmir-India relation. With one voice Kashmiris from all walks of life should annul so-called accession, stay standstill or accede to Pakistan. And then, review relation with Pakistan also in keeping with Pakistan’s-constitution Article: 257. The article states:  `When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State’. It is time the Kashmiris woke up and grab the opportunity to correct their historical blunder.

Mr. Amjed Jaaved has been contributing free-lance for over five decades. His contributions stand published in the leading dailies at home and abroad (Nepal. Bangladesh, et. al.). He is author of seven e-books including Terrorism, Jihad, Nukes and other Issues in Focus (ISBN: 9781301505944). He holds degrees in economics, business administration, and law.

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Human rights violations in India

Amjed Jaaved

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In yet another damning report, the United Nations’ High Commissioner for Human Rights, Michelle Bachelet expressed `concern over restrictions on Non-governmental Organisations, arrests of activists and implications of Citizenship Amendment Act.

She `appealed to the Government of India to safeguard the rights of human rights defenders and NGOs, and their ability to carry out their crucial work on behalf of the many groups they represent’. She `expressed regret at the tightening of space for human rights NGOs in particular, including by the application of vaguely worded laws that constrain NGOs’ activities and restrict foreign funding’. Besides, she `cited as worrying the use of the Foreign Contribution Regulation Act (FCRA), which a number of UN human rights bodies have also expressed concern is vaguely worded and overbroad in its objective’. The Act prohibits `receipt of foreign funds “for any activities prejudicial to the public interest’. But, it leaves vague definition of the `public interest’ ad `prejudicial’ to wild imagination of police officers. 

The Act, which was adopted in 2010 and was amended last month, has had a detrimental impact on the right to freedom of association and expression of human rights. Amnesty International was compelled to close its offices in India after its bank accounts were frozen over alleged violation of the FCRA. Bachelet noted, `The FCRA has been invoked over the years to justify an array of highly intrusive measures, ranging from official raids on NGO offices and freezing of bank accounts, to suspension or cancellation of registration, including of civil society organizations that have engaged with UN human rights bodies. ..Constructive criticism is the lifeblood of democracy. Even if the authorities find it uncomfortable, it should never be criminalized or outlawed in this way.’

India keeps the UN in dark: The UN Human Rights Committee oversees implementation of the International Covenant on Civil and Political Rights to which India is a party. The Committee  found that India did not  `show the specific nature of the threat or risks posed, and limit its responses to those necessary and proportionate to address such threat or risks’ . India was bound to explain to the Committee that it was invoking `national security and protection of public order as a reason to restrict the right to freedom of association’. 

The Committee noted that `more than 1,500 people have reportedly been arrested in relation to the [CAA] protests, with many charged under the Unlawful Activities Prevention Act – a law which has also been widely criticized for its lack of conformity with international human rights standards’.

Bachelet drew attention to arrest and continued detention  of   the 83-year-old Catholic priest Stan Swamy, a long-standing activist engaged in defending the rights of marginalized groups, despite his poor health. She urged India `to ensure that no one else is detained for exercising their rights to freedom of expression and peaceful assembly, and to do its utmost, in law and policy, to protect India’s robust civil society’. 

A bird’s eye view of India’s anti-human laws:  India claims to be the “world’s greatest democracy”. But, the shiny face of democracy has been disfigured by repressive Indian laws like: (1) Indian Armed Forces (Special Powers) Act, (2) Terrorist-Affected Areas (Special Courts) Act, (3) Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), and (2) Prevention of Terrorism Act, 2002 (POTA). 

The aforementioned laws clothed police and security/armed forces with emergency powers without explicitly abrogating people’s fundamental rights under the Indian Constitution (a fundamental right cannot be usurped or altered). 

POTA is successor to TADA. The TADA remained in force between 1985 and 1995 (modified in 1987) under the background of the Punjab insurgency and was applied to whole of India. The Act had a sunset provision for lapsing after two years post-commencement, which it did on 24 May 1987.  The POTA is just old wine in new bottle.  It does not repeal fake cases under TADA. Indian media termed POTA as “draconian’. Verily so as penalties under this law are akin to those stipulated in Draco’s code of 610 BC to forestall future revolts by common men.  The code provided death penalty for even trivial offences like stealing an apple, or an earthenware utensil.

The POTA attaches evidentiary value to the telephonic, telegraphic and internet conversations.  The brutality of the law was brought into limelight when S. A. R Geelani, a Kashmir lecturer in Delhi University was implicated for attack on the Indian parliament (December 13).

POTA was employed to frame cases against several other Kashmiri leaders _ Yaseen Malik, Syed Ali Geelani et al.  Despite his frail health (ailing kidney, heart with right ear subjected to micro-surgery), Malik was arrested on March 25 under POTA for receiving ISI’s money when he was addressing a press conference at the Hurriyat office. The court acquitted him with observation that there is not an iota of believable evidence against him.

Syed Geelani and his journalist son-in-law, Iftikhar Gilani also were detained under POTA.  Funny charges on senior Geelani included: (1) “Being a member of Jamaat-e-Islami, he criticised US war against Afghanistan, and described himself as Pakistani”.

Iftekhar Geelani was detained for violation of Official Secrecy Act for possessing information about Indian troops’ movement of pre-1996 period.   The alleged information was available on the internet. Having failed to make a case against him, police charged him under the Pornographic Act!

POTA features: In what follows, we would review significant features of POTA. It usurps Constitution-of- India safeguards for fundamental rights (part 3, articles 13-35). The rights include “life and liberty of the person” (article 21) and “freedom of expression” (article 19). The POTA also violates article 21 which provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. 

TADA was meant to suppress the Sikhs’ freedom movement.  POTA is intended to stifle Kashmiris’ freedom movement.  Due to heavy opposition from the NHRC, human rights organisations and political parties POTA was not introduced as a bill in parliament.  Instead, it was promulgated as POTO, Prevention of Terrorism Ordinance.

POTO became POTA on March 26, 2002. POTA as a modified version of TADA, with similar inconsistencies in protection of human rights.

The POTA violates international-human-rights standards, which provide the framework for international protection and promotion of human rights. It is also incompatible with international human rights standards and treaties, particularly the International Covenant on Civil and Political Rights (ICCPR), to which India is a party.

India has signed but not yet ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to validate torture under POTA. However, notwithstanding non-ratification, adherence to international human rights standards has been upheld by the Supreme Court of India in a number of decisions (for example, Vishaka & Others vs. State of Rajasthan & Others: 1997(6) SCC24).

The Telegraph Act makes intercepts inadmissible as evidence. But POTA allows it. Other rights-suffocative features of POTA include: (1) vague definitions, (2) insufficient pre-trial and trial safeguards, (3) threats to freedom of association and freedom of expression. Ensuing paragraphs highlight the features.

VAGUE DEFINITIONS: Section 3(5) of the POTA, while criminalizing membership of a “terrorist gang” or a “terrorist organisation,” does not clearly define what these terms mean. The crime is considered complete upon proof of membership.

Thus POTA provides for criminal liability for mere association or communication with suspected terrorists or expressing political opinions without the possession of criminal intent. Obviously, the section is repugnant to ` the right to freedom of association’ enshrined in Article 22 of the ICCPR.

Section 3(8), purports to punish those in possession of information of material assistance in preventing a “terrorist acts”. Failure to provide such information is punishable by up to three years’ imprisonment.

Section 4 of POTA allows legal presumption that if a person is found in unauthorized possession of arms in a “notified area,” he/she is automatically linked with terrorist activity. This along with other provisions undermines the basic right to be presumed innocent until proven guilty.

ARREST: Section 48(2) provides for pre-trial police detention for up to 180 days. This provision contradicts Articles 9(2) and 9(3) of the ICCPR which require that all arrested people be promptly informed of the charges against them and that they are entitled to trial within a “reasonable time”, or release.

TORTURE:  Torture in police custody is a well-known fact. Section 32 provides that confessions, even those under duress or torture, made to police officers are admissible in trial. This violates Indian Evidence Act, article 14(3) (f) of the ICCPR and article 20(3) of the Constitution of India.

Section 56 of the Ordinance provides for protection from punishment and blanket immunity to police officers who use torture or cruel, inhuman or degrading treatment during interrogations. POTA obviously contradicts India’s repeated promises that she is dedicated to eradicating torture”.

Efforts on the anvil to refine POTA are nothing but palliatives to cure police brutality.  Hence, they are not worth discussing.   When asked about the POTA, in an interview to The Hindu, Dato’ Param Cumaraswamy, former United Nations Special Rapporteur on Independence of Judges and Lawyers said: “Past experience had shown that draconian legislations did not provide much safety to the state against terrorists or militants but were used only to protect the safety of the government in power”. He added, “My concern is that extensive powers given to the executive can always be abused without there being any independent judicial review”.

Conclusion: India uses its draconian laws to gag dissent. The Hindu-monk chief minister of India’s northern state of Uttar Pradesh regards a cow as a citizen. He directed the police to register cases under National Security Act for offences concerning a cow. One hundred and forty cases were soon registered to terrify the Muslim.

The inescapable conclusion from the above analysis is that the POTA is meant to gag political dissent and crush freedom movements.  It baffles one’s imagination that POTA has the same goal as Draco’s code had 2, 613 years back that is “crush common men’s revolt by use of brutal force”.  POTA is unnecessary in view of India’s other equally draconian laws like Indian Armed Forces  (Special Powers) Act and Terrorist-affected Areas (Special Courts) Act. These laws allow pre-trial detention of “suspected militants” without disclosing reasons and house searches without warrants. An arrestee is considered guilty until he is proved innocent. An appeal against POTA lies to the inaccessible Supreme Court.

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India’s fury at Moeed Yousaf’s interview?

Amjed Jaaved

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In an interview with Indian media outlet The Wire, Moeed Yusuf , revealed that India had expressed a “desire for conversation” but said that Pakistan’s agreement to talks would be conditional (Talks with India only possible with Kashmir as third party, says SAPM Moeed Yusuf,  Dawn 14 Oct 2020) . India quickly denied any offier for talks. Moeed as also his interviewer were quickly dubbed anti-India  jihadi.

A leader becomes a traitor the moment he stops singing paeans for “secular democracy”. Take Sheikh Abdullah. Barkha Dutt recalls (This Unquiet Land, p. 154) `In a 1948 speech to the United Nations, Sheikh Abdullah … made a blistering defence of the accession to India. Sher-e-Kashmir (Lion of Kashmir) roared, :`I had thought all along that the world had got rid of  Hitlers…but what is happening in my poor country I am convinced that they have transmigrated their souls into Pakistan…I refuse to accept Pakistan as a party in the affairs of Jammu and Kashmir’

Dutt says, “Sheikh Abdullah [later] began to talk about possibility of independent Kashmir…Soon after he changed his stance he was jailed and dismissed from office and was not able to lead the state for another twenty years’.

While talking to Cyril Al Maeda in  an exclusive interview that appeared on 12th May, Pakistan’s  former prime minister Sharif had  said  `Militant organizations are active. Call them non-state actors, should we allow them to cross the border and kill 150 people in Mumbai?’ During Kalbushan jhadav’strial, Indian counsel used the MNS statement ` to blame Pakistan for its alleged involvement in sponsoring terrorism in India’.

The factual position is that gullible  Sharif  had relied on statement  by  then serving ISI chief Shuja Pasha. Even Pasha’s statement was grossly misinterpreted. Pasha never asaid that it was ISI who in any way sponsored the Mumbai operation. Even the USA never trusted interrogation of David Headley who was `linked’  to the Mumbai incident. 

Let me quote   Mohammed Adobo  and   Etgar  Ugur  (eds.), Assessing the War on Terror, 2013, Lynne Reiner Publishers, Inc., Colorado 80301 (USA). Chapter V: Pakistan Perfidious Ally in the War on Terror, C. Christine Fair, p. 85)

According to Indian officials who interrogated him after his indictment, David Headley, an American involved in the Mumbai attacks conceded ISI involvement (Jason Burke, “ISI chief aided Mumbai terror attacks: Headley”, The Hindu October 19, 2010; Jane Perlez, Eric Schmitt and Ginger Thomson, “US had  warnings on Plotter of Mumbai Attack”, New York Times, October 17, 2010). US officials have not endorsed this claim. Bt, according to some reports, the current director general of the ISI Shuja Pasha, acknowledged that the persons connected to the ISI were involved in attacks (Woodword, Obama’s Wars, pp 46-47). Documentary analysis shows secretive Mumbai trials were translucent (Davidson, Betrayal of India: Revisiting the 26/11 Evidence).

It is a documented fact that India is stroking insurgencies in neighbouring countries. Unlike Kashmir, Bangladesh was not a disputed state like Jammu And Kashmir State. It was an integral part of Pakistan. But, harboured, nurtured, trained and armed Bangladeshi ‘freedom fighters’… Some Indian diplomats and RAW cover officers have made startling revelations in their books about involvement in insurgencies or terrorism in neighbouring countries. . For instance, RK Yadav, and B. Raman (The Kaoboys of R&AW: Down Memory Lane) make no bones about India’s involvement in Bangladesh’s insurgency. They admitted that India’s then prime minister Indira Gandhi, Parliament, RAW and armed forces acted in tandem to dismember Pakistan. Raman recalls ‘Indian parliament passed resolution on March 31, 1971 to support insurgency. India Gandhi had then confided to Kao that if Mujib was prevented from ruling Pakistan, she would liberate East Pakistan from the clutches of the military junta. Kao, through one R&AW agent, got hijacked a plane Fokker Friendship Ganga of Indian Airlines from Srinagar to Lahore. India’s security czar Doval publicly claims that he acted as a spy under a pseudonym in Pakistan for 11 years. India’s then army chief, SAM Manekshaw confessed in video interview that India Gandhi ordered him to attack erstwhile East Pakistan. (YouTube: Indian Army Stories of the Indo-Pak War 1971 by Sam manekshaw).

United Nations’ view of `accession:  Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions to forestall the `foreseeable accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and affirmative Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state.

Under hypnotic spell of Indian propaganda, readers naively accept IHK’s `assembly’ and preceding `instrument of accession’ as fait accompli. No sir, they aren’t. Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the sham assembly, the Security Council passed two resolutions to forestall the foreseeable` accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state.

`Accession instrument’ is a myth, unregistered with the UN. Alastair Lamb, in his book Incomplete Partition (Chapter VI: The accession Crisis, pp.  149-151) points out that Mountbatten wanted India not to intervene militarily without first getting `instrument of accession’ from maharajah Hari Singh.  Not doing so would amount to `intervening in the internal affairs of what was to all intents and purposes an independent State in the throes of civil conflict’.  But, India did not heed his advice. It marched its troops into Kashmir without maharajah‘s permission _ an act of aggression. Lamb says `timing of the alleged Instrument of Accession undoubtedly affected its legitimacy'(p.172, ibid). She adds `If in fact took place after the Indian intervention, then it could well be argued that it was either done under Indian duress or to regularise an Indian fait accompli’.

He argues that the maharajah was travelling by road to Jammu (a distance of over 350 km). How could he sign the instrument while being on the run for safety of his life? There is no evidence of any contact between him and the Indian emissaries on October 26, 1947. Actually, it was on October 27, 1947 that the maharajah was informed by MC Mahajan and VP Menon (who had flown into Srinagar) that an Instrument of Accession is being fabricated in New Delhi. Obviously, the maharajah could not have signed the instrument earlier than October 27, 1947. The instrument remains null and void, even if the maharajah had actually signed it. The reason, as pointed out by Alastair is that the `signatures’ were obtained under coercion. Under law, any undertaking secured through coercion or duress is null and void. She points out Indian troops had already arrived at and secured Srinagar airfield during the middle of October 1947. On October 26, 1947, a further airlift of thousands of Indian troops to Kashmir took place. She questions: “Would the maharajah have signed the Instrument of Accession, had the Indian troops not been on Kashmiri soil?” Isn’t it funny that, in the summer of 1995, the Indian authorities reported the original document as lost or stolen?

Lamb concludes (p. 191, ibid):`According to Wolpert, V. P. Menon returned to Delhi from Srinagar on the morning of 26 October with no signed Instrument of Accession.  Only after the Indian troops had started landing at Srinagar airfield on the morning of 27 October did V. P.   Menon and M. C. Mahajan set out from Delhi from Jammu. The Instrument of Accession, according to Wolpert, was only signed by Maharajah Sir Hari Singh after Indian troops had assumed control of the Jammu and Kashmir State’s summer capital,  Srinagar’.

It is time the Kashmiris woke up and grab the opportunity to correct their historical blunder. It is `Now or Never’. No more palliatives.

Conclusion: India is unqualified to become a permanent member of Security council as it has flouted international treaties. India is wedded to `might is right’ (Noam Chomsky, Rogue States: The Rule of Force in World Affairs). It should be shunned as a rogue state and punished as a pariah states ( Tim Niblock, Pariah States and Sanctions in the Middle East).

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Tripartite dialogue over Kashmir: Only Way out

Dr.Ghulam Nabi Fai

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Women walking past Indian security forces in Srinagar, summer capital of the Indian state of Jammu and Kashmir. Nimisha Jaiswal/IRIN

Dr. Moeed Yusuf, Special Advisor to Prime Minister of Pakistan on National Security and Strategic Policy disclosed in an interview with senior Indian journalist, Karan Thapar (October 13, 2020) that India sent us a message for a desire to a conversation. He added that Pakistan stands for conversation that moves us forward. He however emphasized that there are three parties to the dispute, Pakistan, India and there is a principal party, called Kashmiris.  The only thing that matters is the wishes of the people of Kashmir.

We whole heatedly welcome the articulation of Dr. Yusuf to include the Kashmiri leadership in the talks. The people of Kashmir will welcome any talks between India and Pakistan as long as the genuine leadership of the people of Jammu & Kashmir is the part of process of negotiations. They steadfastly maintain that tripartite talks are the only way to resolve the Kashmir issue that has dominated the South Asian region for over 73 years. They maintain this constructive position, despite the outrage caused and the indescribable suffering inflicted on them, by the barbarities of the Indian occupation forces.

The people of Kashmir want to emphasize that as the dispute involves three parties –Government of India, Government of Pakistan and the people of Kashmir who are the most directly affected – any attempt to strike a deal between two parties without the association of the third, will fail to yield a credible settlement. The contemporary history of South Asia is abundantly clear that bilateral efforts have never met with success. The agreement between India and pro-India Kashmiri leaders, like Sheikh Abdullah failed because they sought to bypass Pakistan. Similarly, the agreements between India and Pakistan, like Tashkent Declaration and Simla Agreement failed because they sought to by pass the Kashmiri leadership. All these attempts served only to prolong the dispute, leaving the basic issue unsettled and preserved the stalemate. Although the Simla Agreement of 1972 is irrelevant to the Kashmir dispute, yet it did visualize a ‘final settlement’, but failed for a concrete course of action toward determining Kashmir’s status by the will of its people.

No longer can the mere holding of talks between India and Pakistan defuse the situation. It is a matter of record that during the 72 years history of dispute, India has merely used the façade of talks to evade settlement and ease internal or external pressure. In 1962, when India was facing grave difficulties because of war it had launched against China, it agreed to a round of ministerial talks only to delude two eminent emissaries sent by the United States and the Great Britain. The six seemingly serious sessions were simply exercise in futility. After the end of the 1965 war, when the Security council had committed itself to address the underlying cause of the India – Pakistan conflict – which was none other than the Kashmir dispute – Indian secured the support of its ally, the former Soviet Union and the tacit acquiescence of others to help consign the dispute to limbo as far as the United Nations was concerned. Today, India is again in confrontation with China on one side and with Pakistan on the other. We earnestly hope that the Indian Government’s message to Pakistan ‘for a desire to have a conversation’ will not be one more step in that direction to sabotage the real intent of the talks through diversionary tactics.

Dr. Moeed Yusuf’s approach is based on pragmatism when he said that there can be no progress in talks if they are not accompanied by practical measures, like:

i. To release all political prisoners; ii. Reverse military siege in Kashmir, iii. Pull back the Domicile Law that changes the demography of Kashmir; iv. End human rights violations; and v. Stop Indian state terrorism.

In the past, India has not desisted from its human rights violations while announcing its intent to talk. India has to be told in an understandable language that peace cannot be held, nor continued as long as terror reigns over Kashmir and India remains at war with Kashmiris.

The people of Kashmir believe that the conversion of Line of Control (LoC) into an international border is a non-solution. Such an idea is an insult to the intelligence of the people of Kashmir. They fought against status quo and as Dr. Moeed Yusuf said ‘Line of Control is a problem and cannot become a solution.’

We hope that the Secretary General of the United Nations maintains and intensify his watch over the situation in Kashmir and not be lulled into the belief that India and Pakistan will initiate any meaningful dialogue over Kashmir unless there are some mediatory initiatives by an impartial third party. Third party could be the United Nations itself or a person of an international standing who could be delegated by the United Nations to bring all the three parties together.

The policy that aims at merely defusing the situation, whatever that may mean, and not encouraging a credible settlement has not paid in the past. It is likely to do even less now.

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