UN Resolutions on Kashmir are Null & Void / Krishan Tyagi

Jammu & Kashmir – Ladakh Union Territories

Temporary, Transitional and Special Provisions. Some aspects of Article 370 got diluted over the decades in the fields of judicial system and public administration.

As mentioned, Article 35A did not have any parliamentary sanction and was supposed to be temporary too.

However, there has been no response from the world leaders to Prime Minister Imran Khan’s SOS calls. Saudi Arabia, Malaysia, Britain, France, Canada and other countries either ignored Pakistan’s requests for intervention or told Pak leaders that they were “watching the situation”! The European Union in response actually slammed Pakistan for exporting terror to India and Europe. Thinking that Pakistan might be useful to Americans in Afghanistan, US President Donald Trump flip-flopped between ‘being happy to mediate between India and Pakistan’ and ‘leaving it up to PM Modi to handle the situation’, that excited Pak leadership one minute and depressed the next.

Apart from that small achievement, whereafter Pak foreign minister bragged that “Kashmir issue has been internationalised”, Pakistan drew blank in the international diplomacy. Even the members of the Organisation of Islamic Countries (OIC) and other Muslim countries did not support Pakistan on the issue. Actually as a slap in the face for Imran Khan, the UAE made its stand loud and clear that the removal of Article 370 from its Constitution was India’s internal matter.

Let us look at the UNSC Resolutions in detail and their brief background –

At the UN Security Council, in relation to the Jammu and Kashmir dispute, Resolutions 38, 39, 47, and 51 were passed in 1948, Resolution 80 was passed in 1950, Resolution 91 was passed in 1951 and Resolution 122 in 1957.

Among them, the main resolution was the UNSC Resolution 47, adopted on 21 April 1948, wherein the proposal to hold a plebiscite in Jammu and Kashmir was made, that we will be looking in more details in the coming paragraphs.

Before that the Resolution 38 of 17 January 1948 called upon both India and Pakistan to take immediate measures (including public appeals) to improve the situation on the ground, and to refrain from doing anything which might aggravate the situation. Under the Resolution 39 of 20 January 1948, the UNSC constituted a Commission, called UN Commission for India and Pakistan, to resolve the dispute between them over the state of Jammu and Kashmir.

The Resolution 51 of 03 June 1948 was just a follow up of Resolution 47 directing the UN Commission to visit the areas of dispute. However, as detailed below, for years no progress took place on Resolution 47 and the story of further Resolutions is that of disagreements over the withdrawal of troops.

its nationals from Kashmir, ie the parts of the state that it occupied through, as seen by the UNSC, an unlawful invasion. To quote the original text, the Resolution said: “The Government of Pakistan should undertake to use its best endeavours to secure the withdrawal from the state of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the state for the purpose of fighting, and to prevent any intrusion into the State of such elements and any furnishing of material aid to those fighting in the State.”

In the second step, India was asked to progressively reduce its forces to the minimum level required for law and order. The Resolution said, “when it is established to the satisfaction of the Commission (UN Commission for India and Pakistan) set up in accordance with the Council’s resolution 39 (1948) that the tribesmen are withdrawing and that arrangements for the cessation of the fighting have become effective, the Government of India should put into operation in consultation with the Commission a plan for withdrawing their own forces from Jammu and Kashmir and reducing them progressively to the minimum strength required for the support of the civil power in the maintenance of law and order.”

In the third step, India was asked to appoint a Plebiscite Administrator nominated by the United Nations who would conduct a free and impartial plebiscite. “When the Indian forces have been reduced to the minimum strength”, outlining the conditions such as equitable representation of both India and Pakistan in the administrative bodies for a fair plebiscite the Resolution laid out the third step, “The Government of India should undertake that there will be established in Jammu and Kashmir a Plebiscite Administration to hold plebiscite as soon as possible on the question of the accession of the State to India or Pakistan.”

As can be seen from the original text of the Resolution, the proposed three steps to resolve the Kashmir dispute were to be taken in sequence, meaning the second step was to be taken up on the completion of the first one, and the third step was to be taken up on the completion of the second one.

Pakistan never withdrew its nationals from Kashmir, the territory internationally called ‘Pak Occupied Kashmir’. And, because Pakistan did not take the first step that it was asked to, and thus even the first condition for conducting the plebiscite did not get fulfilled, things did not move further.

So, the reality of the UNSC Resolutions on Kashmir is that it was Pakistan that defied the UNSC directions and did not leave the parts of Kashmir that it occupied through an unlawful invasion, rendering the UNSC Resolution ineffective.

In fact, the founder and first Governor General of Pakistan Muhammad Ali Jinnah did not believe in a plebiscite. On 1 November 1947 Jinnah rejected Indian Governor General Lord Mountbatten’s proposal to decide the accession of Junagarh, Hyderabad and Kashmir by an ‘impartial reference to the will of the people’. His reply to Lord Mountbatten was that a plebiscite was unnecessary and states should accede according to their majority population. Jinnah was willing to urge Junagarh to accede to India in return for Kashmir. When Mountbatten suggested that the plebiscite could be conducted by the United Nations, Jinnah again rejected the proposal, hoping that the invasion would succeed and Pakistan might lose a plebiscite. According to constitutional expert AG Noorani, Jinnah ended up squandering his leverage.

Later for the plebiscite, Jinnah demanded simultaneous troop withdrawal, but it was not accepted as the UNSC accepted the legitimacy of Indian forces in Jammu and Kashmir because of the Instrument of Accession, while Pakistani forces invading the state was seen as an hostile and unlawful act. And thus Pakistan did not withdraw its nationals as directed by the UNSC. In fact, in a complete violation of the UNSC Resolution, in May 1948 the Pakistani army officially entered the conflict.

that State of Pakistan transformed itself into another State called Bangladesh in 1971, a fully-fledged Member State of the United Nations in its own right since. So, a smaller part of the erstwhile State of Pakistan cannot claim itself to be the inheritor of that State of Pakistan which was the party to the dispute with India, even if it calls itself Pakistan, as the present day India cannot make claims on behalf of the India of Ashoka’s or even British times. In the concerned UNSC Resolution, present day Bangladesh, the then East Pakistan, was a joint claimant as a part of Pakistan. The present day Pakistan can only pursue that claim if Bangladesh joins it in pursuing that claim.

Don’t Mess With Modi in Texas / New York Times

An Oped by a New York Times columnist, Roger Cohen, suggests a change of outlook and an attempt to balance the anti India rehetoric that has been bane of this News Paper so far, on the Kashmir issue.

Talking about Imran Khan, Cohen is very scathing, he says in his Op. Ed, “Suggesting Modi has sympathy for the Third Reich, comparing him to a Fascist leader and stating that he may commit “genocide,” is to protest too much. Raising the possibility of nuclear war is reckless. All this suggests his bluff has been called.”

“If Pakistan is so concerned about Nazi Germany”, Cohen asks, “it might begin by recognizing the State of Israel. Whether Pakistan really wants a solution in Kashmir, the region that justifies its bloated military budget, and whether it can ever transparently demonstrate that its intelligence services have stopped finding uses for radical Islamism in its various violent forms, remain open questions”

Expressing concern about Pakistan’s Western neighbor, He postulates, “They are important questions for the United States, as it contemplates a military withdrawal from Afghanistan. A quandary for Trump now will be how to secure Pakistani support, rather than suffer an incensed Pakistan’s sabotage, if he moves forward with his promise to bring American troops home.”

“Modi will not turn back from his elimination of Kashmir’s autonomy. That phase of Indian history is over. Trump and Modi are both forceful, media-savvy politicians. But they are not alike. Modi, a self-made man from a poor family, is measured, ascetic, not driven by impulse. Trump was born on third base. He’s erratic, guided by the devouring needs of his ego. I’d bet on Modi to transform India, all of it, including the newly integrated Kashmir region.”

Read full NYT article

No respect for beggars – Pak Paper reminds it’s Countrymen

Courtesy: Pakistan Today

Dawn newspaper publishes an article as a rare example of responsible and realistic journalism

“There is no respect for beggars in the international community, especially when our image is portrayed as a state marred by terrorism and economic failure” admits the columnist

“In these circumstances, none of the countries will dare stand with us in these testing times” he adds, “Therefore, the only way to come out of this Kashmir imbroglio is to improve our economic conditions.”

“The current government came to power a year ago with a lot of promises of economic prosperity and investment but it seems none of the targets is being achieved.”

“We tried options like resorting to direct military interventions and using proxies to liberate Kashmir, but all in vain. We did not manage to liberate Kashmir. Similarly, we outsourced jihad to various ‘jaishs’ and ‘lashkars’ but these outfits further defamed us.”

Mirror To Mirror with Former BBC Correspondent Krishan Tyagi

Pakistan never recognised that Jammu & Kashmir enjoyed a special status in the Union of India through Article 370 and Article 35A in the Constitution of India. Pak government, establishment and media call the Indian region of Jammu and Kashmir “Maqbooza Kashmir” (Occupied Kashmir) using the formal phrase “Indian Occupied Kashmir (IOK)”. But the moment the Modi government decided to abandon those provisions, Pakistan decided it is a violation of some agreement with Pakistan! Pakistani establishment claimed the Article 370 could not be removed unilaterally by India.

As the Indian parliament passed the resolutions to abrogate Article 370 (and Article 35A as a consequence) and reorganised the region into two Union Territories of Jammu & Kashmir and Ladhakh, Pakistan reacted sharply. Pakistan’s national assembly in a joint session condemned India for unilaterally changing the status of Jammu & Kashmir. Pakistan downgraded the diplomatic relations with India by sending the Indian envoy back home; the trade with India has been completely stopped; the train and bus services between the two countries have been stopped; Pakistani air space has again been restricted for Indian planes; and most importantly, Pakistan is taking the matter to the United Nations Security Council and International Court of Justice, if possible. Prime Minister Imran Khan has phoned world leaders and Foreign Minister Shah Mahmood Qureshi has visited Beijing seeking China’s support at the UNSC in order to make India withdraw its measure in relation to Jammu and Kashmir.

There has not been much of a reaction from the Indian government to the unilateral measures taken by the Pak government. The only response from the Indian government that we saw during the week was that the Ministry of External Affairs spokesperson Ravish Kumar asked Pakistan to review its decision to downgrade the ties with India.

However, the Indian media as well as Pak media have been taking great interest in the developments in Pakistan in the field. The Indian media in general dismissed the Imran Khan government’s attempts to garner international support against India as desperate and fruitless efforts. For instance, Palki Sharma Upadhyay at WION News, India’s global news channel, wished Pakistan “Good Luck” in its efforts. On the other hand, as expected Pak media has been very supportive of their government.

Different television channels have joined their government in severely criticising the present Indian government’s measure to absorb “disputed Jammu and Kashmir” into India; condemned “Indian atrocities on Kashmiri people”; and used abusive words for Indian prime minister Narendra Modi.

On the Pakistani television news channel 24 News,one of the senior most Pak journalists, Najam Sethi who also believed that India has acted inappropriately, presented a very realistic assessment of the options available to the Pakistan establishment in its opposition to the abrogation of Article 370 of the Indian constitution in relation to Jammu and Kashmir.

Mr Sethi reported that there was no positive response from Saudi Arabia, Malaysia, the US or China to PM Khan’s phone calls and FM Qureshi’s visit to Beijing. These countries at present have very strong trade and investment relations with India, and it is not in their national interest to annoy India. China particularly at this moment is not very happy with Pakistan. Turkey is the only country that has supported Pakistan on the issue. Basically, Pakistan doesn’t have much of international support.

Najam Sethi also talked of the UN Resolutions on Kashmir proposing a plebiscite in Jammu and Kashmir. Generally the people in Pakistan think the plebiscite was supposed to take place in the Indian region of Jammu & Kashmir only. Because the plebiscite did not take place, Pakistan calls Indian region of Jammu and Kashmir, as mentioned, “Indian Occupied Kashmir” and the area under its own control “Azad Kashmir (Free Kashmir)”. Mr Sethi informed the 24 News viewers that according to the concerned UN Resolutions, the plebiscite was to be held in the whole of Jammu & Kashmir, INCLUDING THE KASHMIR UNDER PAKISTANI CONTROL.

However, as mentioned in the review, even Mr Sethi, a very mature journalist, omitted the extremely important detail of the UNSC Resolution 47, adopted on 21 April 1948, wherein the proposal to hold a plebiscite in Jammu and Kashmir was made. The Resolution had recommended a three-step processfor the resolution of the dispute between India and Pakistan. In the first step, Pakistan was asked to withdraw all its nationals from Kashmir. In the second step, India was asked to progressively reduce its forces to the minimum level required for law and order. In the third step, India was asked to appoint a plebiscite administrator nominated by the United Nations who would conduct a free and impartial plebiscite. These steps were sequential, meaning the second step was to be taken up on the completion of the first one, and the third step was to be taken up on the completion of the second one. Mr Sethi kept quiet on the fact that the plebiscite did not take place because Pakistan did not fulfil the first condition. It never withdrew its nationals from Kashmir. So, the reality of the UN Resolutions on Kashmir is that they could not be acted upon because Pakistan did not keep its part. The responsibility for the non-implementation of the UN Resolutions lies with Pakistan.

Even more importantly, the fact is that the present state of Pakistan is not the state of Pakistan that was a party against the state of India in the UN Resolutions relating to Kashmir in 1948-1949. THAT STATE OF PAKISTAN NO LONGER EXISTS. More than half of the population of that State of Pakistan transformed itself into another State called Bangladesh in 1971. So, a smaller part of that State cannot claim itself to be the inheritor of the erstwhile State of Pakistan, the party to the dispute with India, even if it calls itself Pakistan. In that Resolution, present day Bangladesh, the then East Pakistan, was a joint claimant as a part of Pakistan. The present day Pakistan can only pursue that claim if Bangladesh joins it in pursuing that claim.

So, all the UN Resolutions relating to Jammu and Kashmir, where the State of India and the then State of Pakistan were the parties to the dispute, are null & void after the transformation of East Pakistan into Bangladesh.

But, no one including Indian political leaders and Indian media has ever told Pakistan.

Courtesy mirrortomirror.com

Rejoice Daughters of J&K; RIP Article 370 / Neelam Jain

In a huge move, Home Minister Amit Shah on August 5, 2019, announced scrapping of Article 370 of the Constitution that provides special status to the state of Jammu and Kashmir. With it was also laid to rest the highly discriminatory provision of the state that penalized a woman for marrying an outsider but protected a male in similar circumstances.
Article 370 and 35A – as introduced in the Indian Constitution for granting special status to Jammu and Kashmir, were a fundamental breach of women’s fundamental rights as Indian citizens. A glorious tradition that believes in

Yatra naryastu pujyante ramante tatra Devata,
yatraitaastu na pujyante sarvaastatrafalaah kriyaah

“Where Women are honoured, divinity blossoms there, and where women are dishonored, all action no matter how noble it may be, remains unfruitful”,

the state of J&K deprived its daughters their basic right if they married an outsider. In Jammu and Kashmir, citizenship was unequal among men and women. The irony was never lost on the daughters when the entire country thronged to the most revered shrine of Mata Vaishno Devi, yet the same state displayed an unsavory bias against its girls.

What an anomaly. If a woman from J&K married a foreigner she would lose her right to inherit, own or buy immovable property in the state, whereas no such law affected a male in a similar situation. Consider this, if a boy from the state married a girl from outside, his wife not only became a state-subject (the certificate that confers special privileges on the state residents), but their children enjoyed the status by default. Whereas, if that boy had a sister and she also chose to marry an outsider, she stood to lose her state-subject and all the related rights. Her husband would never be welcomed as a traditional ‘Jamai’ in the state. Their children were aliens. All because of her gender!

You might exclaim, “Are you joking!” Yet, that’s exactly what it was. A poor joke played by the state on its own daughters.

An interesting example is the well-known family of Farooq Abdullah himself. Farooq Abdullah married a British woman and their son Omar Abdullah got to become the Chief Minister of the state. Omar’s wife was also not from the state, yet it did not impact his rights. On the other hand, Omar’s sister when she married an outsider she lost all rights as a state subject.

On October 7, 2002, the Jammu and Kashmir High Court overturned the established legal position. The court ruled that by marrying an outsider, a J&K woman did not lose her permanent-resident status. The decision was contested by the state’s political parties, who drafted a bill known as the Daughters Bill or the Permanent

Residents’ (Disqualification) Bill stripping a woman of permanent resident-status if she married a foreigner. Although the bill was not passed, a similar bill was introduced in March 2010. This bill was also not passed. It, however, had considerable political support

The 2002 ruling came after a bunch of women went to court to fight against the discriminatory nature of the law. The battle, however, was only partially won. Women marrying outside the state could inherit their parental property, but the rider was they still could not pass it on to their children.

Women have had to fight for their rights through history. However, in a modern India that enshrines equal rights to its women in the Constitution, the state of Jammu and Kashmir continued to practice the anachronistic denial of fundamental rights on the basis of gender.

August 5, 2019, spelt a historic victory for the women of the state. August 15 is India’s Independence Day, but in my opinion women of J&K could herald their independence 10 days in advance. By one fell well-deliberated swoop, Home Minister Amit Shah set the anomaly right. The Damocles sword was lifted from the neck of many a woman of the state who had inherited property, but by virtue of having married an outsider could not pass it on to her children. They always feared losing the property.

Besides other political and geographical implications of the August 5, 2019 move by the Home Minister under the aegis of PM Narendra Modi, it is a big day for the women of the state who now feel on par with men in their citizenship rights.

“I am a woman with thoughts and questions and shit to say. I say if I’m beautiful. I say if I’m strong. You will not determine my story–I will.” -Amy Schumer