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According to the white paper on Jammu & Kashmir published by the government of India early in 1948, Government of India made it clear that they would regard “Instrument of accession” as purely provisional until such time as the will of the people of the state be ascertained. This instrument of accession was signed under the Indian Independence act 1947, which served as the constitution of India from 15thAugust 1947 to 25th January 1950. In case of Jammu & Kashmir, the instrument of accession was executed by ruler on 26th October 1947. The Governor General of India accepted the “instrument of accession” on 27thOctober 1947. This acceptance is a legal prerequisite under section 6(1) of the Indian Independence act 1947. Further, the governor General of India stipulated that state’s accession should be settled by a reference to the “will of people”. Therefore the instrument of accession and the terms and conditions of the state’s accession with India are purely constitutional accepted by the constitution of India. Jammu & Kashmir was the only state which negotiated the terms and conditions for the accession. The same was echoed in Parliament of India by none less than the then Indian Home minister P. Chidambaram, where he acknowledged in the Rajya sabha on 6th August, 2010 that Jammu & Kashmir had acceded to India in “unique” circumstances (Indian Express, 7thAugust, 2010) and he added that Jammu & Kashmir is a “unique” problem which requires a “unique” solution. The clause 7 of the instrument of accession says and I quote: Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into any agreements with the Government of India under any such future constitution (Chapter 1, Doc. No. 5, Instrument of accession). Therefore, while signing the “instrument of accession” and framing terms and conditions, the state of Jammu & Kashmir declared its intentions to have own constitution drafted by own constituent assembly. The state of Jammu & Kashmir had acceded to India in 1947 in respect only of defense, foreign affairs and communications. Negotiations were held between the then Indian Prime minister and his colleagues with the then Prime minister of Jammu & Kashmir Sheikh Mohammad Abdullah for five long months from May to October 1949. Article 370 of Indian constitution was the result of these negotiations and defined the relationship of state of Jammu & Kashmir with India. While replying to Dr. Mukherjee’s question in Indian legislature on 2 January 1952 as to what the Congress Government was going to do about the fact that one-third of Kashmir’s territory was still held by Pakistan. Pandit Nehru replied and I quote: “It is not the property of either Indian or Pakistan. It belongs to the Kashmiri people. When Kashmir acceded to India, we made it clear to the leaders of Kashmiri people that we would ultimately abide by the verdict of their plebiscite. If they tell us to walk out, I will have no hesitation in quitting. As a great nation, we cannot go back on it”. To this Dr. Mukherjee did not respond. In another statement in the Lok Sabha on 31 March 1955, Pandit Nehru said: “We should remember that Kashmir is not a thing to be bandied between India and Pakistan but has a soul of its own and individuality if its own. Nothing can be done without the goodwill and consent of the people of Kashmir”. In one of the letters to the then PM of Pakistan, Pandit Nehru said: I have repeatedly stated that as soon as peace and order have been established, Kashmir should decide on accession by plebiscite or referendum under the international auspices such as those of United Nations (Letter No. 368Primin, dated 21 November 1947). In his report to All Indian Congress Committee on 6 July 1951 as published in the Statesman, New Delhi, on 9 July 1951 Pandit Nehru said: Kashmir has been wrongly looked upon as a prize for India or Pakistan. People seem to forget that Kashmir is not a commodity for sale or to be bartered. It has an individual existence and its people must be the final arbiters of their future. At the international platform, while taking part in a debate at the meeting of Security Council on 24 January 1957, the then Indian representative, Mr. Krishna Menon said: So far we are concerned, there is not one word in the statements that I have made in this council which can be interpreted to mean that we will not honour international obligations. I want to say for the purpose of record that there is nothing that has been said on behalf of the Government of India which in slightest degree indicates that the Government of India pr the Union of India will dishonour any international obligations it has undertaken.

Therefore Instrument of accession and article 370 are very much the part of Indian constitution. Instrument of accession guarantees us the right to self determination and Article 370 guarantees us internal autonomy. Therefore, resolving the political imbroglio in Jammu & Kashmir is a permissible and an obligatory course under the constitution of India.

However, Article 370 was eroded with the passage of time by none less than its makers. This was acknowledged by the then Indian Home minister Gulzari Lal Nanda in Lok Sabha on 4 December 1964 and I quote: “What happens is that only the shell is there. Article 370, whether you keep it or not, has been completely emptied of its contents. Nothing has been left in it”. This is the reality of “Special status” of the state of Jammu & Kashmir. The process of erosion of Article 370 either unilaterally by India or with support from their collaborators in Jammu & Kashmir has been fully documented by A.G. Noorani in his book “Article 370: A Constitutional history of Jammu and Kashmir”. There was a half hearted attempt by National conference for the restoration of Autonomy where they submitted a memorandum to the then Prime Minister of India on 4 November 1995. We still are unable to know what happened later to this attempt. In another attempt to restore Autonomy in Jammu & Kashmir, the legislative assembly adopted the NC-backed resolution recommending the greater autonomy to the state. Despite being the strong unionist force for India in Kashmir, New Delhi did not respond to National conference and dumped this resolution as if it was garbage. Quite ironically, Omar Abdullah (Chief Minister of J&K from 2009 to 2014) remained the part of the same cabinet which rejected the resolution. Further, the will of people, which is a constitutional and democratic right of the people of state, is not being ascertained and is being dealt with full military might. By denying “right to self determination” to the people of Jammu & Kashmir, New Delhi is disrespecting its own constitution framed by its own stalwarts and kind of principles they claim to hold. The timeline from 1947 to 2018 is full of broken promises from both India and unionist forces within Jammu & Kashmir and present situation is the result of those broken promises.

In the present scenario where we are struggling to bring peace to the valley and the failure to report deaths and sufferings in Kashmir contrasts strangely with the overheated coverage worldwide of even most minor unrest in Tibet leave alone Tehran, people here in Kashmir feel that we are not only being crushed but merely ignored. Public opinion in India is mute. They prefer to avoid the subject for fear that political rivals will question their patriotism. Kashmir is never spoken of, and it has never been allowed to speak. Most of the Indian writers and intellectuals who witnessed the hijacking of India’s secular democracy by Hindu supremacists often appear as evasive as their Chinese peers on Tibet. Many more have tended to become nervous at the mention of anger and disaffection in the Kashmir valley. As the Kashmiri writer Basharat Peer wrote in his moving “Letter to an Unknown Indian”, Indian Journalists might edit out the “faces of the murdered boys” and “their grieving fathers”, they may not show “the video of a woman in Anantnag, washing the blood of the boys who were killed outside her house”, but, “Kashmir sees the unedited Kashmir”. Since 1990, Kashmir’s economy suffered huge losses and according to one estimate Kashmir’s economy has incurred a loss of more than 1,880,000 million Indian rupees (US $ 40.4 billion). In December 2009, the Tribunal released the report entitled “Buried Evidence” which documents 2,700 hidden, unmarked, and mass graves, containing 2,943 bodies, mostly of men, across 55 villages in the Bandipora, Baramulla, and Kupwara districts of Kashmir. These bodies, bearing the marks of torture, burns, and desecration, were revealed to be local and ordinary people killed in “fake encounters” by Indian forces. In Kashmir, these Indian forces tend to be aligned with Hindu majoritarian interests and are authorised to question, raid houses, make arrests without bringing charges, intimidate, perpetrate custodial violence and permit protracted detentions without due process. Citing “National security”, Indian forces in Kashmir shoot and kill on unverified suspicion, and are immune from prosecution under a draconian law called as Armed forces special powers act (AFSPA). All these actions are deemed as “acts of service” and rewards and promotions are given to personnel for killing presumed insurgents (New York: Human rights watch, 2006, 65-66). This was clearly exemplified from the Machil fake encounter, where it has been reported, was also motivated by the promise of cash rewards.

Ever since Kashmir was invaded people lived a life full of miseries and sorrows. In 1841 A.D Gulab Singh of Dogra family plotted something that brought the liquidation of Sikh kingdom of Punjab. The conspiracy matured in Feb 1845 and he wrote to Governor General not to lose time and position the British Army to brush down the Sikhs. In Nov. 1845 the Anglo-Sikh war broke out and British emerged victorious in the war and Sikh Kingdom was grounded. The treaty of Lahore dated 9th March 1846 made an end to Sikh Kingdom of Punjab. The British took the control of Punjab with the help of Gulab Singh. As a result of services rendered by him to British, he wanted something in return and his cruel eye was on poor Kashmiris. The British did not disappoint him and entered into a sale deed with him. Kashmir was sold to him for £ 1500,000 (75 Lakh INR) without taking into view the considerations of Kashmiris. Both Kashmir and Kashmiris were sold and at what a cost. This shameful transaction was done by British in a highly immoral way. Kashmir neither belonged to British nor to the Gulab Singh, but still they decided our future. This is the biggest tragedy in the painful history of Kashmir. The history is full of deceptions. It feels pain and I believe it is needless to mention our sufferings. Although land is famous for its natural beauty but you will find heaven and hell just near each other. Recently, United Nations published a 49 page long report on human rights violation and sufferings in Kashmir. But, despite the pain and sufferings, new generation of Kashmiri youth is on the march. They have completely lost the fear of death. Some fight with guns, some with stones; they will perish but they will not surrender. An unusual phenomenon of trying to save the militants at encounter sites is something unheard of and speaks about the volumes of the extent to which youth of Kashmir can go without caring for their own lives. They are developing the independence of spirit and spirit for independence and it will not be quelled easily. The struggle for freedom in Kashmir did not start with killing of Hizbul Mujahideen Commander Burhan Muzaffar Wani, neither did it start in 1989 when people got arms to fight this occupation. The fight for freedom is older than India’s freedom struggle. People have been fighting various sorts of occupiers over last few centuries. Every generation in its own time has fought and did not bow before mighty occupiers. Be it Yousuf Shah Chak (the then king of Independent Kashmir) who by deceit was arrested by Mughal emperor Akbar (the then Indian King) or be it Sheikh Imad ud Din (the then Governor of Independent Kashmir) who resisted Gulab Singh Dogra (an invader from Punjab belt of Current India) or be it current generation who is resisting the present Indian occupation. Kashmiris have a rich history of resistance and will resist every wrong done to them. But at the same time, all of us must understand this fact that we are paying very heavy price by losing young, talented and bright youth to this bloody conflict. The youth of Kashmir need a peaceful space for the expression of their sentiments. The responsibility lies on all the stakeholders.

The people of Kashmir are yearning for peace, Justice, freedom and right to self determination. It is an obligation on both Pakistan and India to bring an end to the sufferings of people here in Kashmir. People want a just and dignified peace that guarantees us total freedom from foreign occupation and alien domination. New Delhi and Islamabad appear to be in collusion. If Pakistan overlooks India’s conflicts in Jammu & Kashmir, India seems willing to forget Pakistan’s occupation of its own “Azad Kashmir”. The struggle to achieve right to self determination will not be extinguished until India and Pakistan accept its exercise by the people of Jammu and Kashmir and fulfill their promise(s) made to the people of Jammu & Kashmir. We have survived by keeping faith of fate, but fate being unkind has kept us in the hands of others. Now the only thing that is needed this time we are allowed to shape our destiny. The majority of the people want New Delhi and Islamabad to secure a good-agreement on the right of Kashmiris to determine the course of their future, set a time-frame and define the interim conditions necessary to proceed with. Following this, Civil Society and political leaders must put out in motion the processes to educate, debate and consult with the society, including its minority groups, in sketching out the terms of reference for a resolution, prior to negotiations with India and Pakistan. So let us all work together and make Justice as our collective aspiration and help Kashmiris to bring peace.

Nissar Ul Ashraf, PhD

National Postdoc Fellow (DST-SERB, Govt. of India)
University of Kashmir

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