Published On: Mon, Oct 2nd, 2017

Changes in Jammu and Kashmir’s constitutional provisions

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Dr. Syed Nazir Gilani
nazir-gilaniRSS chief Mohan Bhagwat has called for changes in Jammu and Kashmir’s constitutional provisions. He opines that “necessary constitutional amendments” are needed for people of Jammu and Kashmir to be “completely assimilated” with the rest of the country. Indian leaders time and again raise article 370 as a political scare crow. People in the State rush to pick up sticks and whistles in defence. Mohan Bhagwat in his Vijayadashmi speech at the Rashtriya Swayamsevak Sangh (RSS) headquartersin Nagpur has not been clear whether he wants an ‘assimilation’ or an ‘integration’ of the State and its people.
The speech came at a time when the State is going through the most difficult and disturbed times of its history. Over the years Delhi and its leaders have misinterpreted the terms of relationship that exist between Government of India and the Government of Jammu and Kashmir.
It is time that People in India and leaders in India decide whether it has ever been possible in the history of mankind that an unwilling people could be humbled by the use of force or through an arrangement which continues to be pending a final reference of the people. Would it be of any use to play hot and cold with the terms of your relationship with the people?
Article 370 or any other such constitutional provisions in Jammu and Kashmir, do not have any merit. The question of relationship has been placed by Delhi before the UN Security Council for a further, free and final, UN supervised vote of the people of Jammu and Kashmir. Leaders in India have not been clear or they prefer to remain unclear, that the Assembly of Jammu and Kashmir, at Srinagar, is not fully representative and is infirm. Delhi and Srinagar have been cautioned by the UN Security Council resolution of 30 March 1951 that this Assembly is elected from only a part of the territory of the State and therefore does not have a full representative character.
J & K Assembly does not represent all the people living in Azad Kashmir, Gilgit and Baltistan, Kashmiri Diaspora and the 2.5million Kashmiri refugees living in various provinces of Pakistan. These people are designated as State Subjects and are recognised in UN Security Council Resolution of 21 April 1948. In addition to this the two houses of Jammu and Kashmir Assembly have resolved that Jammu and Kashmir has a limited and a provisional accession with the union of India. The State has not merged with India. Under Article 144 the State has secured a flag for itself and Article 48 admits that it is incomplete.
Outside Delhi and Srinagar, Government of India has placed the question of this provisional accession before the United Nations to seek a people’s vote on its fate. India and Pakistan have bilateral agreements duly recognising that Kashmir is as an outstanding dispute. Both countries remain fully mindful that the bilateral engagement can’t remain indeterminate and if this engagement fails, UN Security Council would proceed under Article 103 of the UN Charter.
India and Pakistan would have to make a reference to equality of people and right of self-determination of the people of Jammu and Kashmir. The sooner the better. It is usually debated that world is not interested in the people of Jammu and Kashmir. International concern works like a latent heat. It is always there. However, the people of Kashmir have so far misdirected their efforts and have never flagged the merits of their case.
It is an irony that the people of Jammu and Kashmir have never contributed to the debates at the UN. They have never raised any objection in regard to the manner of debate or in respect of any prejudice, caused to the merits of their case. On the contrary the world community has been advocating the interests of the people of Kashmir, in equity and with a good conscience.
There may be very few Kashmiri leaders, who would be knowing that countries like Argentina have remained vocal and sympathetic to the people of Kashmir. On 4 February 1948 at the 240th meeting of the UN Security Council Argentina quoting Article 1 paragraph 2 of the UN Charter came out very strong in support of the people of Jammu and Kashmir. Argentinian representative Mr. Arce stated, “Now that the disputes between India and Pakistan have been submitted to the jurisdiction of the Security Council, the delegation of Argentina will not be able to vote in favour of any draft resolution which does not leave the solution of the problem to be decided by a plebiscite, freely prepared, freely conducted and freely scrutinised under the authority of the Security Council”.
The Indian leaders need to know and educate the Indian people that both Srinagar and Delhi remain under a caution of the United Nations. Under this caution no action which violates the principle that the future of the State shall be decided under a UN supervised vote of the people, will be valid or a substitute for a Plebiscite. This position could be explained by the statement made by US representative Mr. Gross at the 566th meeting of the UN Security Council on 10 November 1951. He stated, “We will all recall that the representative of India stated to the Security Council on 1 March 1951 (533rd meeting) that, so far as the Government of India is concerned, the Constituent Assembly is not intended to prejudice the issues before the Security Council or tocome in its way. He went on to say on 29 March (538th meeting) that any opinion which the Constituent Assembly expresses will not bind the Government of India, nor prejudice the position of the Council. The members of the Security Council were gratified to hear these assurances repeated at our 548th meeting on 29 may 1951, and I recall that it was during that same meeting that I had the occasion to express the concern of the United States Government regarding an earlier statement attributed to Sheikh Abdullah that the Constituent Assembly would support to make a definitive decision on the question of accession”.
At a time when Delhi has an issue with the Government of Jammu and Kashmir, unsettled issues with the people of Jammu and Kashmir, outstanding dispute with Pakistan and is faced with a case at the United Nations, integration and assimilation call given by Mohan Bhagwat has no takers. It is encouraging to note that National Conference has asked PDP to “introspect about the costs the state could pay because of its abject surrender to the BJP and the RSS”. National Conference has warned the chief minister that “Her failure to stand up to this onslaught would result in unimaginable consequences for the entire state and (will) deeply affect peace and stability in the region.”
Hurriyat and all other schools of opinion in Jammu and Kashmir, in India, in Pakistan and Kashmiris living abroad need to energise their efforts, to discourage any efforts that do not stand up to the test of equality of people and the right of self-determination. It would not serve the interests of the people of India if its leadership turns communal on Kashmir. India is not going to succeed on this count. We need to question the good and decent Indians whether they see a solution through the use of state craft. If not, these people should oppose the use of security forces to hurt the people and habitat of Kashmir.
Chief Minister of Jammu and Kashmir Mehbooba Mufti and the leader of opposition, should pay heed to a recent statement made at a press conference by the President of Azad Kashmir, Sardar Masood Khan, that chief minister of Jammu and Kashmir, is a facilitator in the abuse of human rights in Kashmir. If so and if proven, she may face criminal liability at International Criminal Court, at some point in the future. The allegation would impact upon her future visits abroad as well. We do not live in 1948 anymore. It is 2017 and consent of the people is the basis of all governance around the world.
PDP is in alliance with BJP. It should make sure that Mohan Bhagwat and others hold their horses. Jammu and Kashmir does not have the ‘grave emergency’ of October 1947 anymore. It has three Governments of its own and the world community has invested its interest in the right of self-determination of Kashmiri people. Good and decent Indians have to honour their commitment and defend life, property and honour in Kashmir.
The author is the President of JKCHR – NGO in Special Consultative Status with the United Nations. He is on UN Register as an Expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. Author could be reached at dr-nazirgilani@jkchr.com

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