Dr. Syed Nazir Gilani

Those who opposes the Indian rule in Kashmir, have to reposition in their efforts to seek the realisation of self-determination through a UN supervised Plebiscite. The parties that have identified themselves, in rejecting the Indian action of 31 October 2019 are mainstream pro India parties, Hurriyat, non Hurriyat, Governments of Azad Kashmir and Gilgit and Baltistan, Government of Pakistan and the United Nations.

Seven pro India political parties came up with Gupkar Declaration on 4 August 2019, Hurriyat Conference has a constitution adopted on 31 July 1993, Azad Kashmir Government has its Constitution committing itself to a duty under UNCIP Resolutions and Government of Pakistan has assumed duties under UNCIP resolutions in AJK and has the UN template on the conduct of a UN supervised vote and the people of Jammu and Kashmir, have a title to ‘equality’ and right of ‘self-determination.’ India stands as a lone wolf and a leper in the eyes of law.

Each one of these parties have a higher burden of responsibility. How would these political parties behave and how long would they resist the temptation to gain power, remains to be seen. Interestingly many of Kashmiri leaders signatories to Gupkar Declaration have tasted the loss of liberty for the first time, of course, under less hostile living conditions. However, they have been subjected to the push and shove of a policeman.

We hope that Gupkar Declaration, cements these leaders for some time to stand together and seek on their demands made in the resolution. The first and foremost step, that they have avoided to take, is to challenge the State Governor for dissolving the Jammu and Kashmir Assembly on 21 November 2018 in bad faith and without any merit. All actions that have flown from 21 November to date are unconstitutional and without any legal effect.

Governor may have done a bidding for his employer, the Government of India but he cannot substantiate the contents of his report made to the President of India in a court of law. As a start Mehbooba Mufti had staked her claim to the Governor on 21 November 2018 that she had the support of National Conference with 15 members and Congress with 12 members to form the Government. It is an intriguing coincidence that the fax Machine at the Governor House was out of order to receive the claim. She however, managed to communicate her claim through WhatsApp and Twitter. Sajjad Lone of People Conference, also staked his claim to form the Government on the same day. He too had to WhatsApp and Tweet his claim.

The notice of two different claims of being able to form the Government was in public domain on 21 November 2018. Therefore, the decision of the Governor to dissolve the Assembly in the evening of 21 November 2018, is in bad faith and unconstitutional. The President of India’s Notification of 19 December 2018 and other orders that have flowed from this mischief, are all without any legal sanction. New Delhi could not overrun the Constitutional and Legislative process in Kashmir, unless it had to push through a self-serving legislation for the benefit of Delhi Government.

National Conference and Congress, should start helping as appropriate PDP (Mehbooba Mufti) and PC (Sajjad Lone) in their challenges to the unconstitutional conduct of the Jammu and Kashmir Governor, in the interests of his employer – the New Delhi. All acts done after 21 November and 19 December 2018, are unconstitutional. Governor as an Indian representative and a non-State Subject (non-Kashmiri) has committed a ‘fraud’ on the legislative process in Kashmir.

If the signatories to Gupkar Declaration are serious, they need to prove the constitutional disability of the Governor from 21 November 2018, when two respective claims by PDP and PC were lodged for the formation of the majority Government. It would automatically annul the action of Government of India taken on 31 October 2019.

On the action of 5 August 2019, National Conference in particular and other parties in general need to challenge the status of Indian army in Kashmir. National Conference shall have to make a reference to the ’character certificate’ given by Sheikh Abdullah, at the UN Security Council guaranteeing the good behaviour of these forces, pending the holding of a UN supervised Plebiscite in Kashmir. Other parties should bring into question and notice of the court, the four conditions placed on the Indian army, at the time of their temporary admission into Kashmir.

Signatories to the Gupkar Declaration, Azad Kashmir Government and the Government of Pakistan, could use the jurisprudence of UN Security Council resolutions of 21 April 1948 and 30 March 1951, to challenge the current manner of presence of Indian army and the action taken by Government of Indian on 31 October 2019. We need to involve France, United Kingdom, Netherlands, China and United States of America in particular and other countries in general, in our efforts seeking to vacate the action of Government of India taken on 31 October 2019, which temporarily has fractured the part of the State under Indian administration into two union territories and annexed them.

France has argued at the 539th meeting of the UN Security Council held on 30 March 1951, ““Resolutions of 13 August 1948 and 5 January 1949, to which we must always return because they won the express agreement of both India and Pakistan. If the parties are unable to reach agreement on the plan submitted to them, provision is made for arbitration, and, to make assurance doubly sure, arbitration is to be carried out by an arbitrator or panel of arbitrators appointed not by a political body but by the President of the International Court of Justice.” Similarly, United States of America at the 768th meeting of the UN Security Council held on 15 February 1957, has held that“The Security Council will, “always welcome any agreement which the parties themselves can reach on any basis which will settle the dispute, provided of course that, that basis is consistent with the principles of the Charter of the United Nations. Security Council had a ‘positive duty’ and “unless the parties are able to agreeupon some other solution, the solution which was recommended by the Security Council should prevail.”

Additional guidance is provided by the United Kingdom and Netherlands. United Kingdom has argued at the 606 meeting of the UN Security Council held on 6 November 1952 that, “The ultimate objective of a fair and impartial plebiscite under the auspices of the United Nations has, after all, been written into solemn agreements by the two governments and endorsed by this Security Council. These agreements have been affirmed and reaffirmed ‘by the two governments many times during the last three and a half years,” and Netherlands have argued at the 611th meeting of the UN Security Council held on 23 December 195, that “The party that would dare to violate an agreement thus reached would load upon itself a very grave offence against the other party, against the United Nations, and against the right of the people of Jammu and Kashmir to self-determination, a right which, in other contexts, both parties have so often and so eloquently defended.”

Therefore, any sense of helplessness that India has not left any options after 31 October 2019, is ill founded. In fact India has re-occupied the part of the State and has loaded upon itself a very grave offence committed against many the other parties.

The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.

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