Article 370: Pakistan’s foreign-office myopic view or a faux pas

In his weekly press briefing, Pakistan foreign-office director general (South Asia and SAARC) Dr. Mohammad Faisal said (April 6, 2019), “Pakistan will never accept the repeal of Article 370 of the Indian Constitution… Besides violating the rights of Kashmiris, it will also contravene relevant UNSC (UN Security Council) Resolutions”. He added that Article 370 was incorporated in India’s Constitution in October 1949. And, it exempts Jammu and Kashmir from the country’s Constitution while allowing the state to draft its own [constitution]. Indian newspapers, including prestigious The Statesman have reported his statement.

It appears that doctor Faisal’s statement is not in sync with principled stand of the government of Pakistan. Article 370 is rooted in accession-to-India resolution of so-called `constituent assembly’ of the disputed Kashmir. The `assembly’ itself banks on Maharajah Hari Singh’s mythical `Instrument of Accession’, not registered with the UNO. By accepting Article 370 and occupied Kashmir’s constitution, Pakistan binds itself to accepting Azad Kashmir as part of India. The IHK’s constitution provides seats for Azad Kashmir. Will Pakistan hold elections in Azad Kashmir under Indian or IHK’s constitution?

If our foreign office revisits Kashmir-case files, it will come to know that: (a) India never registered Instrument of Accession with the United Nations. In the summer of 1995, the Indian authorities reported the original document as lost or stolen? (b) Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions _ Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957 _ to forestall the `foreseeable accession’ by the puppet assembly.. These resolutions outlaw accession or any other action to change status of the disputed state. (c) Pakistan stresses international-law jus cogen `pacta sunt servanda’ treaties are to be abided by, being binding on signatories. Non-compliance reduces a state to status of a rogue state. (d) India through a series of steps whittled down Kashmir’s special status under Article 370 and 35-A of India’s Constitution. Governor replaced sadr-e-riast who could conveniently dismiss wazir-e-riast (now chief minister). (e) Kashmiri leaders are begging for `election’ which is ultra vires of UN resolutions. Kashmiris’ fate of total integration hangs in hands of petition pending with India’s Supreme Court.

Pakistan’s information minister’s statement

In a prelude to Foreign Office spokesman’s statement (April 6, 2019), Pakistan’s information minister had dared India hold elections in IHK (March 11, 2019). Taking the two statements juxtaposed, the inference is that Pakistan implicitly admits that: (a) Jammu and Kashmir is not a disputed territory. It is an `integral part of India’. IHK had acceded to India as per the Maharajah’s Instrument of Accession not registered with UNO or invoked on UN forums. (b) `Pakistan administered Kashmir’ (Azad Kashmir) is under illegal occupation by Pakistan. Heretofore I quote from IHK’s `Constitution’.

`Preamble to the Constitution of Jammu and Kashmir

“WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR,

having solemnly resolved, in pursuance of the accession of this State to India

which took place on the twenty sixth day of October, 1947, to further define the

existing relationship of the State with the Union of India as an part thereof…’.

`Relations with Government of India

Article 3 in part 2 of the Jammu and Kashmir constitution reads as,

“Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India.

Relations with Pakistan administered Kashmir

Article 48 of Part VI of Jammu and Kashmir constitution defines Pakistan administered Kashmir as “Pakistan Occupied Territory”.

There are currently 87 seats in Jammu and Kashmir State assembly, but article 48 of Jammu and Kashmir constitution also recognizes 24 seats from Pakistan administered Kashmir and mentions that these 24 seats will remain vacant till Pakistan ceases the “occupation” of Kashmir and the said area shall be excluded in delimiting the territorial constituencies till that time.

To India’s pleasure, Pakistan’s chagrin

What information minister or foreign-office spokesman said should please India. For, India says clasula rebus sic stantibus, a fundamental change of circumstances (literally `things as they stand’), making plebiscite demand an anachronism.

Look at Janus-faced Pundit Jawaharlal Kaul/Nehru. Nehru had earlier declared in a radio broadcast (Nov 2, 1947) that the government of India was “prepared, when peace and order have been established in Kashmir, to have a referendum held under international auspices like the United Nations.” I am quoting from Chaudhri Mohammad Ali’s The Emergence of Pakistan.

Nehru befooled Sheikh Abdullah to stab Pakistan in the back. Barkha Dutt recalls (This Unquiet Land, p. 154) `In a 1948 speech to the United Nations, Sheikh Abdullah … made a blistering defence of the accession to India. Sher-e-Kashmir (Lion of Kashmir) roared, :I had thought all along that the world had got rid of Hitlers…but what is happening in my poor country I am convinced that they have transmigrated their souls into Pakistan…I refuse to accept Pakistan as a party in the affairs of Jammu and Kashmir’

Dutt says, “Sheikh Abdullah [later] began to talk about possibility of independent Kashmir…Soon after he changed his stance he was jailed and dismissed from office and was not able to lead the state for another twenty years’. Stanley Wolpert and Alastair Lamb (Kashmir – A disputed legacy 1846-1990, Birth of a Tragedy) also doubt existence of Instrument of Accession (October 26, 1947).

Pakistan’s foreign office has yet to produce a luminary of the caliber of Indian foreign secretaries Shiv Shankar Menon, Krishnan Srinivasan, JN Dixit and Jagat S. Mehta. These gentlemen knew that Kashmir was not an atoot ang (unbreakable part), but a disputed state. India and Parvez Musharraf partly implemented Mehta’s proposals. His proposals are contained in his article “Resolving Kashmir in the International Context of the 1990s” Some points of his quasi-solution are: (a) Pacification of the valley until a political solution is reached. (b) Conversion of the LoC into “a soft border permitting free movement and facilitating free exchanges…” (c) Immediate demilitarization of the LoC to a depth of five to ten miles with agreed methods of verifying compliance. (d) Final settlement of the dispute between India and Pakistan can be suspended (kept in a “cold freeze”) for an agreed period. Voracious readers may refer for detail to Robert G Wirsing, India, Pakistan and the Kashmir Dispute (1994, St Martin’s Press, New York pp. 225-228). Mehta’s thinking is in line with JN Dixit’s. Dixit says ‘it is no use splitting legal hair. “Everybody who has a sense of history knows that legality only has relevance up to the threshold of transcending political realities. And especially in inter-state relations… so to quibble about points of law and hope that by proving a legal point you can reverse the process of history is living in a somewhat contrived utopia. It won’t work.”(Victoria Schofield’s book Kashmir in the Crossfire).

Does Pakistan’s Foreign Office abides by IHK and India’s constitutions? When shall Pakistan cease its `occupation of Azad Kashmir’ to hold elections on 24 seats reserved for Pakistan-administered Kashmir’? Certainly, the afore-quoted statements do not reflect Pakistan’s position on Kashmir dispute, based on UN resolutions. India has no mandate to change the status of the disputed state through sham elections. It is time Pakistan gagged its loose-cannon information minister or unbridled foreign-office spokesman.

Mr. Amjed Jaaved has been contributing free-lance for over five decades. His contributions stand published in the leading dailies at home and abroad (Nepal. bangladesh, etc). He is author of seven e-books including Terrorism, Jihad, Nukes and other Issues in Focus (ISBN: 9781301505944). He holds degrees in economics, business administration, and law.