PLEBISCITE: GHOST OF A DEAD RESOLUTION

01 Feb 2018 17:10:50


Early morning chill and fog failed to dampen the spirits of the voters who had assembled at the polling stations an hour before the scheduled start of voting.

 

 

Adv. Divya Roy

The troubles in the Kashmir Valley has been given different narratives and solutions various perspectives. One aspect of the Jammu Kashmir issue is the involvement of the International community. While India has always maintained the stand that the Kashmir is an internal issue of India, the question often crops up in one’s mind why India go to the United Nations Security Council when Jammu & Kashmir had acceded to India legally and even in subsequent years why the issue of plebiscite is still kept alive when the people of Jammu & Kashmir had ratified the accession through their elected representatives in their Assembly. A lot of misconceptions have been propagated by Pakistan and some international communities with respect to India’s bringing up the Kashmir issue before UN. The international community in general and Pakistan in particular need to understand that the legal status of Jammu & Kashmir has never been disputed. India lodged a complaint under Article 35 (Chapter VI) of the U.N Charter in the U.N Security Council on January 1, 1948, charging Pakistan with “aiding and abetting” tribal invasion of Jammu and Kashmir which it said had acceded to Indian Union through an instrument of accession signed by the then ruler.

In subsequent turn of events several resolutions were passed by the UN Security Council. The key UN resolution items were the unconditional withdrawal of troops sent or maintained by Pakistan, from all parts of Jammu and Kashmir, thus acknowledging that the presence of Pakistani troops in any part of Kashmir was illegal. Further, the UN resolution directed that so called Azad Jammu Kashmir Govt. and Pakistan Occupied Jammu Kashmir Forces both in Pakistan Occupied Jammu Kashmir should be disbanded as they were illegal. The third important point of resolution was that the integrity of Jammu & Kashmir should be fully restored. It should be one entity like how it was during Maharaja Hari Singh’s rule as on 15th August 1947. The fourth point in the UN resolution stated that those displaced from their homes in Mirpur, Gilgit, Baltistan, Muzaffarabad etc. under Pakistan’s illegal occupation, due to communal and violent attacks by Pakistani tribes must be settled back in their homes. There was a mass exodus of about two lakh people from these regions to the Jammu & Kashmir regions that was under Indian governance since 1947. The important factor certifying the legal status of Jammu & Kashmir as an Indian territory was the fifth point of the UN resolution saying that India would maintain the required number of forces whereas it also said that Pakistan must withdraw its forces completely.

The UN resolution which has kept the International community abuzz all these years is about the issue of plebiscite. It gave instructions for the restoration of peace. Pakistan was to withdraw “from the State of Jammu and Kashmir tribesmen and Pakistani nationals not normally resident therein and who had entered the State for the purpose of fighting”. Once that process was underway, India was to scale back its military presence to the “minimum strength required for the support of civil power in the maintenance of law and order” and to deploy these troops. So the resolution dictated that the onus to clear out first was on Pakistan and thereafter India had to phase out its military deployment in phases. Truce was to be determined thereafter and after the truce, both parties were to consult the commission for a resolution of the issue through plebiscite.

 

Residents voted in remote himalayas, Ladakh i.e largest parliamentary constituency of India

 

 

 

Both India and Pakistan raised objections to the Resolution. Subsequently the Commission amended the Security Council Resolution, adopting two resolutions of its own, which were accepted by both India and Pakistan. India’s acceptance to plebiscite was pre-conditional. The UN resolution was in three parts (phases). The first phase was of ceasefire, second was truce and only after these two were complete the plebiscite had to be conducted. India had made its position clear that unless Part I and II of the resolution were implemented by Pakistan, and notified to India the third part of plebiscite would not bind India. India had made its stand clear to the UNCIP Chairman Dr. Lozano and Lozano accepted the proposal. Partial cease-fire was achieved by the Commission at the beginning of 1949. However, a truce could not be achieved due to an adamant attitude of Pakistan over the process of demilitarization. Eventually, the Commission declared its failure in December 1949.

It was under these circumstances and on account of the complete failure of Pakistan to adhere to its commitments under the UN resolutions that India noted its concerns with the UN. At this stage it became important to explore other methods of ascertaining the will of the people of Jammu & Kashmir to which India had always reiterated its commitment. On 15 February 1954, the assembly members of Jammu & Kashmir Assembly unanimously ratified the state's accession to India. The Constitution of India came into force on 26 January 1957. Part II, section (3) of the Constitution states 'The State of Jammu and Kashmir is and shall be an integral part of the Union of India. India’s commitment to plebiscite was thus fulfilled and the will of the people of State was endorsed vide the legal process in 1954.

Meanwhile, India also registered its concern about the credibility of the UN Security Council as out of its 15 members at that time, majority had become allies of Pakistan through the Baghdad Pact. India therefore, took a stand that the UN Security Council was no longer an independent body which had the locus to decide an issue between India and Pakistan as India had very legitimate apprehensions about any impartial outcome from their intervention.

 

Kashmiri women stand in a long queue as they wait to cast their vote 

 

 

 

The role of UN which had already been abandoned because of the non compliance of its resolutions by Pakistan. It came to a complete end when in 1964 the UN, approached by then Pakistan Foreign Minister Zulfikar Ali Bhutto on Kashmir issue, refused to intervene and concluded merely by recording that “the India Pakistan question remains on the agenda of the Security Council”. By Shimla Agreement both the parties decided that all the issues between the two countries will be decided bilaterally, without any role of a third party.  On their official visit to Pakistan the two UN Secretary Generals, first Butros Ghali and then Kofi Annan in 1991 and 1998 respectively reiterated the same point while addressing the Pakistani media when they stated “According to the UN Charter, if two contesting states signed a bilateral agreement by virtue of which peace and normalcy is restored, and the agreement is ratified by the respective Parliaments, the role of Security Council comes to an end”.

It is rather unfortunate that even today within our own country a lot of vested interest give a rather gray picture of the plebiscite issue. Plebiscite is ‘people’s will’ and in the case of Jammu & Kashmir the people of the state have expressed their will through their elected representatives by ratifying the ‘Instrument of Accession”. For years after the UN resolution was passed it could not be implemented as the first step was never realized by Pakistan, the question of India organizing the Plebiscite did not arise. And once the people expressed their will by ratifying the Instrument of Accession and UN itself opting out the issue, the question of plebiscite itself becomes infructuous.

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