President empowered to amend Article 370
by Bhim Singh on 24 Feb 2019 8 Comments

The media is flooded with highly provocative stories of ‘fire in Kashmir’, which is in Jammu and Kashmir, which acceded to India on October 26, 1947. It is unfortunate that well known writers, authors, jurists, and politicians have not cared to explore the historical background of the State. J&K proper includes the present Indian State as well as Pakistan Occupied Territory (POK) measuring nearly 4500 sq. miles, Pak-Occupied Gilgit-Baltistan measuring nearly 32,000 sq. miles as well as another territory measuring about 5500 sq. miles under the illegal occupation of China in Gilgit region, which was illegally occupied in violation of UN Resolution dated August 13, 1948.


Gilgit-Baltistan was occupied by Pakistan after the Resolutions of the Security Council were passed and accepted by Pakistan. Thus, Gilgit and Baltistan were occupied in violation of UN Resolutions on J&K which were accepted by Pakistan. Gilgit-Baltistan continues under Pakistan occupation till date. In fact, Pakistan has declared this region as its official province. Similarly, Baltistan has also been illegally occupied by Pakistan declaring it as its territory.


This is important to note that Pakistan attacked India after signing the UN Resolutions in 1948, which has been noted by the whole world and the United Nations. Moreover, it was Pakistan, not India, which has violated the UN Resolutions vis-à-vis J&K. The UN Resolution dated January 5, 1949 accepted by Pakistan, declared that it shall withdraw all its troops (armed forces) as well as civilians settled by Pakistan from outside the State. Research scholars should find time go through the 10-point Resolution adopted at the meeting of the United Nations Commission for India and Pakistan on January 5, 1949.


Pakistan signed this memorandum but did not implement even a word mentioned in this document (No.5/1196, para 15 dated Jan. 5, 1949). Instead, Jammu and Kashmir was invaded at several times at different places, which has been noted by the United Nations. It is Pakistan which has violated its agreements with the United Nations Resolutions. It is Pakistan which was directed to vacate all occupied areas which have not been vacated till today. Pakistan continues to govern Gilgit-Baltistan illegally and in violation of United Nations Resolutions. Pakistan has declared Gilgit-Baltistan as a province of Pakistan, in total violation of UN Resolutions.


In 1963, Pakistan illegally gave away occupied territory of Gilgit region to China, which continues under the illegal possession of China even today. China has constructed more than 50 military helipads in that occupied territory and managed to connect Beijing with Peshawar and established road connection from Beijing to Peshawar through Indian territory of Gilgit. The surprise is not Chinese occupation, but the silence of the United Nations for Pakistan’s infringement of UN Resolution of August 13, 1948.


Gilgit & Baltistan were illegally occupied by Pakistan after this Resolution. Pakistan continues to occupy more than one-third of the territory of J&K in violation of UN Resolutions. The occupied territories form constituent parts of J&K and shall be called as Indian Territory according to the Instrument of Accession signed by the Ruler of J&K vis-à-vis J&K on October 26, 1947. The time has come for India to take up this pending issue with the United Nations with clear message that:

a)     J&K forms an integral part of India as its Ruler, Maharaja Hari Singh, signed the Instrument of Accession on October 25, 1947 in accordance with the Act of British Parliament.


b)    That India was partitioned and Pakistan was created. General Sir Douglas Gracey took over as Commander-in-Chief of unorganized Pakistan Army whereas Lord Mountbatten remained the Governor-General of India. Pakistan declared its independence on August 14, 1947 whereas India declared its independence on August 15, 1947. Pakistan attacked J&K (India) on October 20, 1947. Pakistan’s Resolution to attack India was vetoed by General Sir Douglas Gracey, who was In-charge of Military Affairs of Pakistan at the time. Lord Mountbatten, the then Governor-General of India, had conveyed to Mohd. Ali Jinnah that terror or violence could not make J&K be trapped by Pakistan.


c)     That Pakistan invaded Gilgit-Baltistan after signing the UN Resolution. Gilgit-Baltistan was a territorial part of J&K which had been acceded to the Union of India in accordance with the UN Resolutions also. These are stirring resolutions adopted by Pakistan violating all its own agreements and UN Resolutions. It was only Mr. Krishna Menon who in 1957 exposed Pakistan’s ugly designs before the Security Council during his 8+ hour historical speech. It was because of Krishna Menon’s speech exposing Pakistan’s designs vis-à-vis J&K that Pakistan remained quiet for years.    


The Government of India should take the matter to the United Nations with a clear message that the Accession of the State of J&K to the Indian Union signed by its erstwhile Ruler on October 26, 1947 was completely valid under the Government of India Act, 1935 and was validly carried under the command of International Law and totally irrevocable. The Accession of J&K with the Union of India gained acceptability after Pakistan itself violated UN Resolutions of August 13, 1948 and January 5, 1949.


The question today before the Indian Parliament should be what needs to be done vis-à-vis J&K to ensure all fundamental rights, civil liberties and freedom to the residents of J&K who were designated as citizens of India after the state integrated to the Union of India in 1947. It is unfortunate that a temporary provision called Article 370 was inserted in the Indian Constitution by the Members of the Constituent Assembly. This provision has reversed the command/will of the Ruler of J&K who signed the Instrument of Accession in October 26, 1947.


All other Rulers (575 States) who signed similar Instrument of Accession were accepted by the Constituent Assembly except the State of J&K. This is an important question that needs to be discussed. Why has Parliament been silent on the issue of integration of the entire State with the Union of India? Why has Parliament not assumed its powers to legislate in respect of at least three subjects, namely, Defence, Foreign Affairs, Communication and Allied Matters? Why has Parliament swallowed the ‘temporary provision’ for 70 years?


Pakistan has violated UN Resolutions and Resolutions of the Security Council vis-à-vis J&K, while Indian Parliament has not exercised its constitutional authority in 70 years. That is not all. The Indian Flag has not been extended to J&K till today. J&K is only state in the Indian Union where citizens of India are called ‘residents’. They have not been guaranteed all Fundamental Rights enshrined in the Constitution of India (Chapter III). This author himself spent nearly eight years in prisons under J&K’s Public Safety Act even when he was a Congress legislator in 1978.


The Parliament of India should hold a special session and declare that J&K has been an integral part of the Indian Union and therefore the Constitution of India shall apply to the Indian citizens in J&K with all Fundamental Rights and civil liberties. It should declare that J&K shall have the Indian Flag. In other words, there shall be one Constitution, one Flag and Fundamental Rights to all from Kanyakumari to Kashmir.


The author is a senior advocate and chief patron of the National Panthers Party, Jammu

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