A Comprehensive Note on Jammu & Kashmir
THE UNITED NATIONS
The United Nations Security Council first took cognisance of the Jammu and Kashmir issue in 1948 after the accession of the State to India, and at Indias behest. A distortion of the nature of the Security Councils involvement has been fostered over the years by Pakistan to try and project that it was the status of Jammu and Kashmir that was the subject under discussion.
It was India that approached the Security Council on January 1, 1948 with the request that the Security Council intervene to vacate Pakistans aggression and illegal occupation of Indian territory of the state of Jammu and Kashmir.
India approached the Security Council of January 1, 1948, and said: "Such a situation now exists between India and Pakistan owing to the aid which invaders, consisting of nationals of Pakistan and of tribesmen from the territory immediately adjoining Pakistan on the North West, are drawing from Pakistan for operations against Jammu and Kashmir, a State which has acceded to the Dominion of India and is part of India...The Government of India request the Security Council to call upon Pakistan to put an end immediately to the giving of such assistance which is an act of aggression against India." India was the complainant before the Security Council against aggression by Pakistan.
The United Nations Security Council appointed a United Nations Commission for India and Pakistan (UNCIP). Initially Pakistan continued to deny any role in the tribal raids maintaining that it was a natural response of the martial tribes to reports of killings of Muslims in Jammu and Kashmir. Later, however, in July 1948, Sir Zafarullah Khan admitted to the UNCIP that three regular Pakistani Brigades had been fighting in Kashmir territory since May 1948.
The UNCIP taking note of the developments adopted a resolution on August 13, 1948, divided into three parts. The first part called for a cease-fire. The second part called for Pakistan to withdraw its nationals and tribesmen and to vacate the territory occupied by it. Then after the above stipulation had been implemented India was to withdraw the bulk of its forces from the State leaving an adequate number behind to ensure that the Government of Jammu and Kashmir maintains law and order and peace, a clear indication that the UNCIP believed that Jammu and Kashmir was a part of India. Part (3) of the Resolution to be implemented after parts (1) and (2) stated that both India and Pakistan had reaffirmed their wish that the future status of Jammu and Kashmir shall be determined in accordance with the will of the people.
Yet the ensuing months, after the adoption of the resolution, saw Pakistan brazenly advancing deep into Baltistan and Ladakh, hundreds of kilometres to the east while the so-called Azad Kashmir forces, which were to be disbanded, were expanded and consolidated and formed what the UNCIP Military Adviser described as a "formidable force".
A subsequent resolution was adopted by the UNCIP on 5, January 1949 on the same issue. However, this resolution was to be binding only if the stipulations of the resolution of August 14, 1948 had first been met. India accepted this resolution also. It is noteworthy that while India accepted the two resolutions, Pakistan balked at implementing even the first one and has still , even after the passage of fifty years, not vacated the territories of Jammu and Kashmir seized by it. Indeed, the portion of the State now called the Northern Areas, has been declared a part of Pakistan, separate to the entity named "Azad Kashmir"
It is very significant that during the debates in the UN Security Council and in the wording of the two resolutions the sovereignty of India over Jammu and Kashmir was taken as accepted.
Speaking in the Council of February 4, 1948 the representative of the United States of America, Warren Austen said "..The external sovereignty of Kashmir is no longer under the control of the Maharaja.. with the accession of Jammu and Kashmir to India, this foreign sovereignty went over to India and is exercised by India and that is why India happens to be here as a petitioner..".
The UNCIP Resolution of 5 January, 1949 stated that "..The Secretary General of the United Nations will .. nominate.. a Plebiscite Administrator.. He will be formally appointed to office by the Government of Jammu and Kashmir.. The Plebiscite Administrator shall derive from the State of Jammu and Kashmir the powers he considers necessary.."
Subsequently, on 26 January 1957 at the 765th meeting of the Security Council the representative of the Soviet Union stated "The question of Kashmir has been settled by the people of Kashmir themselves. They decided that Kashmir is an integral part of the Republic of India".
The last time that the issue of Jammu and Kashmir came before the UN Security Council was in the aftermath of the 1965 India Pakistan war. The perfunctory passing reference to Jammu and Kashmir, with no reference to the resolutions of August 13, 1948 and January 5, 1949 demonstrates that, for the world community, the Kashmir issue was no longer of any consequence and would have been forgotten if it was not for the war forced by Pakistan on India in 1965.
The irrelevance of the 1948 and 1949 resolutions to the contemporary situation was highlighted by the President of the Security Council, Gunnar Jarring in his report to the Council in 1957 when he said ".. The Council, will, furthermore, be aware of the fact that the implementation of international agreements of an ad hoc character, which has not been achieved fairly speedily, may become progressively more difficult because the situation with which they were to cope has tended to change.."
Dr. Frank Graham, the UNCIPs representative stated in March 1958 ".. the execution of the provisions of the resolution of 1948 might create more serious difficulties than were foreseen at the time the parties agreed to that. Whether the UN representative would be able to reconstitute the status quo which it had obtained ten years ago would seem to be doubtful.....".
If, in 1957 and 1958, Mr. Jarring and Mr. Graham felt that the resolutions of 1948 and 1949 could not be implemented because of the changed situation, the sheer implausibility of these resolutions having any meaning today is self-evident. The State of Jammu and Kashmir to which these resolutions applied does not exist any longer with a part of the territory having been handed over to China by Pakistan and demographic changes having been effected in Azad Kashmir and the Northern Areas.
The changed situation in terms of peoples representation in Government is nowhere more evident than in the part of Jammu and Kashmir with India. India became a Republic in 1950, with the will of the people. Pursuant to the Accession of Jammu and Kashmir to India the Constitution of India made provision to accord to State of Jammu and Kashmir a special and protected place in the Indian polity, under Article of 370 of the Constitution. In 1951, the Jammu and Kashmir Constituent Assembly was elected by secret ballot, for which all J&K State subjects were eligible. It adopted, in 1956, the Constitution of Jammu and Kashmir which declared that the State of Jammu and Kashmir was an integral part of India, and that Accession to India was final and irrevocable.
The Accession of the State to India had never been an issue for the Kashmiris. In the 1947, 1965 an 1971 wars, even according to disinterested international commentators, the people of Jammu and Kashmir actively blunted Pakistans attempts to incite insurgency and participated vigorously cooperation with the Army to ensure victory. In 1975, Sheikh Abdullah, the undisputed leader of the Kashmiris, and the Indian Prime Minister Mrs. Indira Gandhi concluded the Kashmir Accord with both sides accepting the validity of the Constitution of the State of Jammu & Kashmir, reiterating the status of Jammu and Kashmir as an integral part of the Indian Union. A little over a year later, in 1977, elections were held. These elections are internationally endorsed as free and fair including by the International Commission of Jurists. In these elections, the accession of Jammu and Kashmir to India was not questioned. It was a non-issue. Sheikh Abdullah who in 1947 had supported the accession and then endorsed it again in 1975, won the elections handsomely, even though arrayed against him was Indias then ruling party, the Janata, supported by a range of local parties including Mirwaiz Farooqs Awami Action Committee and the Jamaat Islami. The Congress was not a serious contender. If any signal was needed, there could be no clearer indication that Abdullahs policies, including his belief in the legitimacy of the Accession of Jammu and Kashmir to India, had the support of the people of the State.
The people of Jammu and Kashmir have participated in elections to Parliament and the State Assembly many times. It is an expression of their will, expressed through the ballot box, that the National Conference, a supporter of Jammu and Kashmirs accession to India, remains the dominant political party in the State, first under Sheikh Abdullahs leadereship and, following the latest Assembly and Parliamentary elections in 1996, and 1998 under his son Dr Farooq Abdullah.
It is ironical that after itself being responsible for non-implementation of the Resolutions at the time when they were adopted, Pakistan today seeks to capitalise on the situation of violence created by it in the State of Jammu and Kashmir. It is incongruous that Pakistan seeks the implementation of out of date resolutions in some parts of the State, when even the state of Jammu and Kashmir does not exist as it did in 1947, thanks to Pakistans generosity in unilaterally ceding to China part of the territory of the State, and occupying another part.
Pakistans bid today to revert to the Resolutions of 1948 and 1949 is merely a ploy to camouflage its continuing activity to destabilise Jammu and Kashmir and to capitalise on the situation that it has created through the use of terrorists and mercenaries.