According to the Indian Independence Act, the rulers of princely states were given the choice to freely accede to either India or Pakistan, or to remain independent. However, 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 dominion 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 despite 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. There was a revolt against the decision of the Maharaja. However, Lord Mountbatten while accepting the instrument of accession made it clear that the acceptance of accession was provisional and after the situation in Kashmir normalized, the question of accession would be settled through reference to the people.
Kashmir was a fit case for accession to Pakistan as 78% population of Kashmir was Muslim and it had geographical proximity with the areas that formed Pakistan. The landing of Indian troops in Kashmir caused wide spread resentment among the people of Kashmir. So as a protest against the landing of Indian troops in Srinagar, 27 October is observed as a Black Day by Kashmiris on both sides of the LOC and Kashmiri diaspora all over the world as well as in Pakistan which is a party to the Kashmir dispute.
In the backdrop of the war that erupted between India and Pakistan, the former took the issue to the UN. The UN during the course of its deliberations on the subject passed several resolutions, including two UNICEP resolutions calling for a plebiscite in Kashmir under the auspices of the UN, as was also promised by Lord Mountbatten. Nehru accepted the UN resolutions and in his correspondence with his Pakistani counterpart as well as in his statements in the Indian parliament repeatedly pledged to fulfill Indian obligations in that regard. Regrettably, India reneged on its pledges and through the constituent assembly of the occupied Kashmir made a declaration of accession of the state to India.
It is pertinent to mention that the UN through its resolutions 91 and 122 repudiated the Indian stance that the issue of accession of Kashmir had been resolved by the constituent assembly of IIOJ&K. These resolutions reiterated that the question of accession could not be resolved by any means other than those enunciated in the UN resolutions on the subject. This proves beyond any doubt that the Indian claims of Kashmir being an integral part of India have no legal or moral basis.
The people of Kashmir are not going to accept the Indian occupation as is evident from their continued struggle.
Indian claim was also effectively negated by the High Court of IIOJ&K in a landmark judgment on the attempts by the Modi government to have Article 370 of the Indian constitution repealed. The judgment said: “Article 370 of the Indian constitution is a permanent provision and cannot be abrogated, repealed or even amended. Jammu and Kashmir retained limited sovereignty and did not merge with the dominion of India after partition in 1947”. The Indian Supreme Court also gave a similar verdict on the subject. However, under pressure from Modi government this verdict has been rescinded.
The Indian intransigence to fulfill its obligations in conformity with UN resolutions led to two more wars between India and Pakistan and eventually to the launching of an armed struggle by the people of Kashmir in 1989 to win their freedom. Since then India has been using its military might ruthlessly to suppress the freedom struggle. According to reports compiled by human rights organizations within India and those working on a global level, Indian troops have brutally killed 95875 Kashmiris, gang-raped 11246 women, destroyed 110,433 structures, arrested 162,262 civilians and enacted 7195 custodian killings from January 1989 to 30th September 2021.
In the wake of a new wave of uprising in the backdrop of the killing of Burhan Wani in July 2016 up till now, Indian security forces have killed 1483 Kashmiris, tortured and injured 29483 including 11400 by pallet guns, arrested 27,207 and destroyed 4355 houses.
The scrapping of articles 370 and 35-A of the Indian constitution by the Modi regime, bifurcation of state into two territories, its annexation to the Indian Union followed by a new domicile law designed to change balance of population, has further aggravated the situation. These actions contravene UNSC resolutions, international law and 4th Geneva Convention.
Fearing backlash against the decision, India had increased the number of its security forces before making its move. Since August 5, 2019 the entire population of Kashmir is under siege. The Indian forces continue extrajudicial killings with impunity and reportedly they have killed more than 270 Kashmiris during search and cordon operations. Since 5th August 2019 Indian security forces have killed 442 people 9ncluding 67 custodial killings, tortured and injured 2136, arrested 15234 civilians and disgraced and molested 116 women. Hardly a day passes without two to three Kashmiri youth being killed.
The illegal and unilateral action by the Modi regime in IIOJ&K posed a grave threat to peace and security in the region. Modi regime inspired by the RSS ideology of Hidutava has not only promulgated anti-Muslim laws in India itself and IIOJ&K but has also adopted a belligerent posture against Pakistan.
Regrettably, the international community and the UN – notwithstanding the fact that they have not accepted the Indian narrative on Kashmir being its internal matter – do not seem inclined to force India to resolve the Kashmir issue. The people of Kashmir are not going to accept the Indian occupation as is evident from their continued struggle and the determination to take their freedom movement to its logical end. Similarly, Pakistan being a party to the dispute cannot remain oblivious to what is happening in the valley. The UN and international community must fulfill their obligations to the people of Kashmir before it is too late.
The writer is a former diplomat and freelance columnist.