Kashmir Special

De Facto Plebiscite in Kashmir

The division of the subcontinent was based on Two-Nation Theory, as being Muslim or Hindu commands entirely different beliefs and lifestyle. In fact, the hero of one nation was considered villain of the other. The people of the subcontinent fought against British rule, which led to the creation of India and Pakistan. The agenda of creating a separate homeland for Muslims was to ensure social and political empowerment of the Muslims of the subcontinent, who were a minority in a Hindu majority subcontinent. 
In 1947-48, India and Pakistan fought their first war for the state of Jammu and Kashmir. A princely state ruled by a Hindu ruler Maharaja Hari Singh, while most of his subjects were Muslims. On January 1, 1948 India took the Kashmir dispute to the United Nations. The UN Security Council (UNSC) resolution of April 21, 1948, one of the most important UN resolutions on Kashmir dispute, resolved: “Both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.” The mutual agreement between India and Pakistan to solve the issue through the UN led the UNSC and UN Commission of India and Pakistan (UNCIP) to pass several resolutions on the Kashmir dispute. 
Pursuant to the mutual consent, it is a binding agreement between India and Pakistan. Moreover, in presence of valid UNSC resolutions, any deviation by either country will be violation of the international law. It is most pertinent to state here that the complaint related to the Kashmir issue was initiated by India and the UNSC explicitly, and by implication, rejected Indian claim that the state of Jammu and Kashmir is legally an Indian territory. The UN resolutions categorically established the holding of a free and impartial plebiscite as a governing principle for the settlement of Kashmir dispute between India and Pakistan.


Changing the status of Jammu and Kashmir is an act of aggression. Explicitly violating UNSC resolutions is tantamount to threatening the peace and stability of the world. It is a case fit for initiation of sanctions and stern actions prescribed under Chapter VII of the UN Charter, particularly in view of the fact that Kashmir dispute is a potential nuclear flashpoint between two nuclear armed countries. 


Seven decades have elapsed since the UN and India promised a free and impartial plebiscite to amicably resolve the Kashmir dispute, however, the UN has remained a silent spectator while India has been mercilessly killing the unarmed civilians in Indian-Occupied Jammu and Kashmir to suppress the legitimate and lawful freedom struggle seeking the right to self-determination through a free and impartial plebiscite. Indian occupant forces stationed in Indian Occupied Jammu and Kashmir are acting in sheer violation of Universal Declaration of Human Rights 1948 (adopted by the UN), in particular: Article 3 that “guarantees right to life, liberty, and security”; Article 5 that says, “no one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment”; and Article 9 that prohibits “arbitrary arrest, detention or exile”. 
For seven decades, the world has silently witnessed stories of half-widows, gang rapes, mass graves, pellet gun victims, arbitrary arrests, illegal detentions and massacres committed by the Indian forces. Since July 2016 to December 2019, many stories of human rights abuses committed by Indian troops have been published by leading international media houses including BBC, The Guardian, Al Jazeera, The New York Times, and The Washington Post.


It is time to realize that Kashmiris have completely rejected India and want freedom from the Indian occupation. The hoisting of Pakistani flags at the funerals of martyrs is a loud and clear message from people of Indian-occupied Kashmir.


In August 2019, BJP government pursuing the Hindutva ideology made a move and abrogated Article 370 and 35A of the Indian constitution in sheer violation of the resolutions passed by the UNSC. The BJP government abrogated the special status of the state of Jammu and Kashmir without even following the due process of law prescribed in Indian constitution and blatantly violated its own constitution. The BJP government intends to change the demography of Indian Occupied Jammu and Kashmir. Indian action of merger of the Occupied Jammu and Kashmir has no legal effect in view of the valid UN resolutions, which are binding on India and Pakistan being members of the UN. Changing the status of Jammu and Kashmir is an act of aggression. Explicitly violating UNSC resolutions is tantamount to threatening the peace and stability of the world. It is a case fit for initiation of sanctions and stern actions prescribed under Chapter VII of the UN Charter, particularly in view of the fact that Kashmir dispute is a potential nuclear flashpoint between two nuclear armed countries. Pakistan is entirely committed to implement the UNSC resolutions regarding holding of plebiscite. Therefore, India is an aggressor threatening the peace and security of the South Asia, which will have immense impact on the whole world. 


Despite India’s unwillingness to follow through with UN resolutions a de facto plebiscite already seems to have taken place. The verdict of the masses is loud and clear that Kashmiris have completely rejected India.


The indefinite curfew in the Indian Occupied Jammu and Kashmir since August 2019 is enough to say that India has lost Kashmir. Indian forces have unleashed a wave of state-sponsored terrorism against the peaceful Kashmiris that is tantamount to genocide. It is time to realize that Kashmiris have completely rejected India and want freedom from the Indian occupation. The hoisting of Pakistani flags at the funerals of martyrs is a loud and clear message from people of Indian Occupied Jammu and Kashmir. The situation in Jammu and Kashmir is extremely volatile due to an overpowering desire in overwhelming majority of Kashmiris to attain liberation from Indian occupation. Therefore, every civilized citizen of the world including upright Indian writers, lawyers, journalists and human rights activists should not remain silent spectators anymore. 
The purpose of holding plebiscite is to ascertain the will of the people, and for this very reason, holding of plebiscite was agreed and endorsed by the UNSC. The BJP government is not willing to accept the ground realities that even the third generation of Kashmiris want freedom from India and merger with Pakistan. Despite India’s unwillingness to follow through with UN resolutions a de facto plebiscite already seems to have taken place. The verdict of the masses is loud and clear that Kashmiris have completely rejected India. India is afraid of the natural alliance between Pakistanis and Kashmiris. Kashmiris appear to have voted with untiring throats, with eyes destroyed or deformed by pellets, and with bodies willing to fall to the ground for the freedom their heart desires. The vote is clearly for “FREEDOM” from India. In view of the de facto plebiscite, it is the duty of the lovers of democracy and human rights to mobilize world opinion in favor of the immediate implementation of UN resolutions on Kashmir dispute, which will result in holding of a free and impartial plebiscite in the entire state of Jammu and Kashmir. 


The writer is Advocate Supreme Court of Pakistan based in Islamabad and author of book titled Kashmir and Human Rights (2016).
E-mail: [email protected] 
 

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