Legally Kashmir is not an integral part of India: HCBA
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The Jammu and Kashmir High Court Bar Association Kashmir on Friday said reference to the constitution of J&K with regard to Kashmir being integral part of India by Indian parliament members in Rajya Sabha is misconceived.
“Kashmir is neither an integral part of India nor are the happenings in Kashmir an internal matter of India and in this regard reference to the Constitution of J&K is totally misconceived, irrelevant and redundant,” spokesman of the Bar said in a statement.
Quoting the Bar president Mian Abdul Qayoom who chaired a meeting of the Executive Council of the lawyers body, the spokesman said: “When General Council of All J&K National Conference passed a resolution for convening a Constituent Assembly for deciding the accession issue, Pakistan raised the issue before the Security Council, where B.N. Rao, an Indian representative and the leader of Indian delegation, in his speech, made on March 29.1951, assured the Council that while the constituent Assembly may, if it so desires, express an opinion on the accession, but it could take no decision on it and any opinion expressed by it, would not bind the Government of India,” the Bar said.
“Consequently the Security Council, which was already seized of the matter, passed a resolution on May 5.1951, where-under, it affirmed that the convening a Constituent Assembly, as recommended by General Council of National Conference and any action that the Assembly might attempt to take to determine the future shape and affiliation of the entire state or any part thereof, would not constitute a disposition of the State and while reminding the Government of India and Pakistan of the principles embodied in Security Council Resolutions of April 21.1948, June 3.1948 and March 14.1950 and United Nations Commission for India and Pakistan resolutions dated August 13.1948 and January 5, 1949 stated that final disposition of the State of J&K will be made in accordance with the will of the people to be expressed by them, through the democratic method of a free and impartial plebiscite, conducted under the auspices of the United Nations”.
“ When Sheikh Mohammad Abdullah was dismissed as Prime Minister of J&K on 09.08.1953 and was detained, he while in detention, addressed a letter to the President of the Constituent Assembly on August 16.1956, when the Constitution was going to be finalized that by August 9 action, as well as by the long record of black deeds in and outside the house, the present Government and the Assembly have completely forfeited the confidence of the electorate and they no longer represent the political and economic aspiration of the people. He accordingly asked them to desist from such a course of action”.
The spokesman said: “On November 24, .1956, Mirza Muhammad Afzal Beg, while addressing the Constituent Assembly warningly stated that this house is not competent to finalize the question of accession or frame the constitution, because it has lost the confidence of the people”.
“Summary rejection of all these warnings, resulted in the boycotting of the Constituent Assembly by Mirza Afzal Beg and other MLAs, who all and others had entered in the Assembly, through fraudulent means, devised by none else but by Sheikh Mohammad Abdullah,” the spokesman said.
“When, despite the aforesaid declarations and warnings, Kashmir Constituent Assembly adopted a Constitution on November 17, 1956, to be enforced in full on January 26, 1957, section 3 of which declared that the State of J&K is and shall be an integral part of India, the Security Council again met on January 16, 1957 and passed a resolution (S/3779) on January 24, 1957 reminding the government of India and Pakistan and the authorities concerned, of the principle embodied in its resolutions of April 21,1948, June 3,1948, March 14,1950, March 30.1951 and UNCIP’s resolution of August 13.1948 and January 5,1949 that the final disposition of the State of J&K will be made in accordance with the will of people, expressed through the democratic method of a free and impartial plebiscite, conducted under the auspices of UN and reaffirmed the affirmation of its resolution of March 30,1951”.
“It also declared that the convening of a Constituent Assembly, as recommended by the General Council of National Conference and any action that Assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire state or any part thereof or action by the parties concerned, would not constitute a disposition of the State in accordance with the above principle” the spokesman said.
“The Bar President also stated that in terms of proviso added to Article 253 of the Constitution of India by Constitution (Application to J&K) Order 1954, the Government of India is bound to hold plebiscite in the State of J&K as has also been rightly said by Mr. A.G. Noorani, in his Article “it is a revolt” published by Greater Kashmir in its issue of August 5,.2016”.
“It is utterly unconstitutional to deny Kashmiris the right to demand a plebiscite, because that right is implicit in the proviso which shows that a decision regarding the disposition of Kashmir is yet to be made by international “Agreement” or at an “International Conference”. Proviso to Article 253 clearly invalidates section 3 of the Constitution of the State, which otherwise also, read in the context of UN and UNCIP resolutions is invalid and redundant,”
“Ever since 1931, Kashmiris have been engaged in a relentless strife against their continuous subjugation, the spirit of their sacrifice for attainment of freedom has reached the zenith in recent months,” he said.
“The establishment of Sainik Colonies and Resettlement of Kashmiri Pandits in separate clusters or implementing the Industrial policy are all tools of repression, which have been rightly rejected by the people of Kashmir” the spokesman said.
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