We need to move forward from a routine of optics and symbolism, adjust our compass, rave courage and take a convincing leap in addressing the legal status of Jammu and Kashmir. Government of Pakistan has very rightly re-designated Indian administered Jammu and Kashmir as ‘illegally occupied Jammu and Kashmir’. It strips India of a concession of accepting its presence in Kashmir, of an administrative nature. Now it has changed into an ‘illegal occupation’. It brings into discussion, ways and means to undo the illegal occupation. Indian illegal occupation could be vacated either by the use of a military force or by using legal options available to us.
In addition to the use of military force by Pakistan another option could be using the Azad Forces and Gilgit Scouts referenced in UN Security Council documents. The two local authorities at Muzaffarabad and Gilgit reserve the right to use military force in seeking Indian vacation from ‘illegally occupied Jammu and Kashmir’. Azad Forces comprised of about 65,000 personnel in January 1948 and the Gilgit Scouts were also of a reliable number. A proportionate increase over the last 72 years would turn them into a huge military force, capable of engaging Indian army in Kashmir. If they have been embedded into Pakistan army, an independent revival to undo Indian occupation would be legitimate. Pakistan could intimate the UN General Assembly and Security Council of this compelling decision.
The legal option to challenge the ‘illegal occupation’ is inevitable. It would dignify Pakistan’s decision of issuing a new map, whichhas designated the Indian administered Jammu and Kashmir as Illegally occupied Jammu and Kashmir.A follow up on this would rehabilitate the faith of the people of Jammu and Kashmir, in our political, moral and diplomatic support. The legal challenge has to be taken up as a well-consideredand as an overwhelming project. Experts in the government of Pakistan, Kashmir Committee, Government of Azad Kashmir and legislature here, has so far a very poor record of a reliable understanding Kashmir as a legal case. The jurisprudence of Kashmir-India relationship is set out in UN Security Council Resolutions. However, the most important legal basis is explained in the Magher Singh v Principal Secretary, J & K Government case decided by the division bench of J & K High Court comprising of Janki Nath Wazir CJ and Shahmiri J in 1953.
Pakistan has very rightly re-designated the area as “Illegally occupied Jammu and Kashmir”. The natural consequence of this re-designation, has to be that we consider military and legal options, to undo the Indian illegal occupation of a part of Jammu and Kashmir
It is incorrect to argue that India had any authority to grant Jammu and Kashmir a Special Status. On the contrary, it was Maharaja of Kashmir who allowed India to look after three subjects of defence, foreign affairsand communications. The Janki Nath Wazir CJ and Shahmiri J judgement in 1953 has clarified this.
The judgement states, “By executing this Instrument of Accession the Ruler on behalf of the State acceded to the Dominion of India with the object that certain authorities specified in Section 6 (I) (a) shall by virtue of the Instrument of Accession, “but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State such functions as would be vested in them by or under the Act. It is clear that, even if the Instrument of Accession, had not made any specific reservations therein, the instrument read with Section 6, Government of India would leave the residuary sovereignty of the state entirely unaffected. But the Instrument of Accession does not leave this important matter to be determined by implication alone. Clause 3 of the Instrument of Accession runs as follows:
“3. Nothing in this Instrument affects the continuance of my sovereignty in and over the State, save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State”. Article 370 was introduced to highlight the fact that Jammu and Kashmir had not merged into India and future temporary relationship, would be governed accordingly. In fact abrogation of Article 370 has reverted Jammu and Kashmir to its position of 25th October 1947. In fact Kashmir has reverted to the currency of Stand Still Agreement with the Government of Pakistan. This clause protects the State Subject Law of 1927.
Pakistan has very rightly re-designated the area as “Illegally occupied Jammu and Kashmir”. The natural consequence of this re-designation, has to be that we consider military and legal options, to undo the Indian illegal occupation of a part of Jammu and Kashmir. Pakistan as a State could consider a direct military action, Azad Kashmir Forces and Gilgit Scouts could revert back to the fighting option of 1947 or Pakistan could use the legal option by involving the International Court of Justice.
India and Pakistan have skipped the two important elements of arbitration and judicial settlement provided in the article 33 of UN Charter, before invoking article 35 at the UN Security Council. Arbitration clause on Kashmir reads, “Calls upon the parties, in the event of their discussions with the United Nations Representative failing in his opinion to result in full agreement, to accept arbitration upon all outstanding points of difference, such arbitration to be carried out by an arbitrator, or a panel of arbitrators, to be appointed by the International Court of Justice in consultation with the parties.”
We have the July 2000 Report of The State Autonomy Committee constituted by the Government of Jammu and Kashmir (Indian occupied), three UN Reports, Gupkar Declaration of 4 August 2019 adopted by political parties of Illegally occupied Jammu and Kashmir and the regular inputs made by Government of Pakistan and the NGOs at the UN to roller skate the legal case of a people illegally occupied by India.
UN General Assembly or Security Council could make a reference to International Court of Justice. India is sitting in the UN Security Council. We need a simple majority in the General Assembly. A massive international campaign involving credible NGOs to prevail on the UN machinery is required. Ambassador Shamshad Ahmad has rightly encouraged me in his message, “Just keep it up. It only looks impossible until it happens”.
The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations