Right to self-determination has been in place in J&K since November 1956

Self-determination rights for Kashmiris

Self-determination rights in J&K
Self-determination rights in J&K

Self-determination rights for Kashmiri’s in place since November 1956

[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]A[/dropcap]part from the validity of ‘J&K’s accession’ to India and ‘the denial of a Plebiscite to the Kashmiri’s ‘ (discussed in the author’s two preceding articles, click on the link to access them) the third issue raised by the “separatists” brigade of that plagued State of India is that of the perceived denial of the “Right to Self-determination to the people there.

That blabber is invariably the one that comes out of the mouth of Miewaiz Unmar Farooq, the 44-years-old chairman of the Awami Action Committee, one of the two key factions of the All Parties Hurriyat Conference, a “grassroots coalition” of pro-Pakistan and pro-freedom parties in Jammu and Kashmir.

The man who holds the hereditary title of Mirwaiz (Kashmiri term for traditional preacher of Muslims in Kashmir) is said to hold a PhD in Islamic Studies called ‘Moulvi Fazil’ He is stated to be the father of three children from a Kashmiri-American who is the daughter of a Kashmiri doctor settled in Buffalo, New York.

It is strange, therefore, that despite his own scholarly background and that of his family, Umar Farooq is demanding “Self-determination rights for Kashmiris” when, in fact, the outcome of implementing that very right has been in place in his State from 17th November 1956 in the form of a Constitution by which the people solemnly resolved to give themselves Justice, Liberty, Equality and Fraternity through the means of a Constituent Assembly democratically elected from across the State of J&K on the basis of adult universal franchise.

[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]W[/dropcap]hat then explains Umar Farooq’s obsessive demand today for self-determination for J&K? It’s probably due to the fact that (i) even a doctorate in Islamic studies does not inculcate the knowledge of a Constitutional democracy, or (ii) he had not even been born when the Yuvraj Karan Singh of J&K promulgated his order of 1st May 1951 calling for democratic election to the formation of a Constituent Assembly or (iii) not born to experience the international excitement when the actual elections happened in August 1951 or (iv) born almost 17 years after the J&K State Constitution was enacted and also undergone alterations after all stipulated legal provisions.

What perhaps explains Umar Farooq’s demand for self determination rights is that he is said to be a Sunni Muslim and that, by some devilish destiny, his birthday marks Pakistan Day.

Whatever it be, time has come to educate the Mirwaiz on the issue, especially as it is perceived in international law.

Explicitly embraced by US President Woodrow Wilson, by Lenin and others, the principle of self-determination became the guiding principle for the reconstruction of Europe following World War I. The principle is prominently embodied in Article I of the Charter of the United Nations.

Paragraph 1 of this ‘Article’ provides: that “All peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.”

Elaborating on this basic principle, Unrepresented Nations and Peoples Organization (UNPO), a Europe-based outfit cited above says:

“[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]E[/dropcap]ssentially, the right to self-determination is the right of a people to determine its own destiny. In particular, the principle allows a people to choose its own political status and to determine its own form of economic, cultural and social development. The exercise of this right can result in a variety of different outcomes ranging from political independence through to full integration within a state. The importance lies in the right of choice so that the outcome of a people’s choice should not affect the existence of the right to make a choice. In practice, however, the possible outcome of an exercise of self-determination will often determine the attitude of governments towards the actual claim by a people or nation. Thus, while claims to cultural autonomy may be more readily recognised by states, claims to independence are more likely to be rejected by them. Nevertheless, the right to self-determination is recognised in international law as a right of the process (not of outcome) belonging to peoples and not to states or governments.” (ibid)

In the context of “independence” being a possible outcome of the “Self-determination of rights”, our Mirwaiz perhaps needs to be reminded of what Sheikh Abdullah, the then the Prime Minister of J&K, said in his opening address to the J&K Constituent Assembly in Srinagar on November 5, 1951.

Of the four objects and functions of the Constituent Assembly, one, said Abdullah, was “to declare its reasoned conclusion regarding accession and the future of the State. He enumerated three alternatives: accession to India; accession to Pakistan or complete independence” (Source: Page 119 of Third Edition of “The Constitution of Jammu & Kashmir” by Adarsh Sen Anand, former Chief Justice of J&K High Court and former Chief Justice of India).

And just in case the Mirwaiz has forgotten, Section 3 of the finally enacted State Constitution of J&K says “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.” And this Section, according to its Section 147, is not subject to the provision that “no bill or amendment to make any change in the provision of Section 3 shall be introduced in either House of the Legislature.”

[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]F[/dropcap]or all you know, the Mirwaiz might be disgruntled that the British India Independence Act, 1947, which brought about the Partition on the basis of it being a religious Muslim majority state. Well, well. The Mirwaiz should be reminded that the Partition on religious basis was made applicable only to British India which that Act of 1947 defined as “all territories for the time being comprised within the Governors’ Provinces and the Chief Commissioners’ Provinces.” On the other hand, the Indian States were independent States, subject to the paramountcy of the British Crown. These States of Princes, Nawabs and Maharajas, were given a different treatment with the option of signing the Instrument of Accession to either Dominion of India or Dominion of Pakistan.

For just a while, really, the Mirwaiz must turn away from his doctorate topic of “Politico-Islamic role of Shah-e-Hamdan”, a 14th-century Islamic scholar who introduced Islam in the Valley. And instead, read the history of J&K’s Constitution and that of Self-determination rights.

1. Text in Blue points to additional data on the topic.
2. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.

Arvind Lavakare has been a freelance writer since 1957. He has written and spoken on sports on radio and TV. He currently writes on political issues regularly. His writings include a book on Article 370 of the Indian Constitution.

His freelancing career began in "The Times of India" with a sports article published when he was a month shy of 20 years of age. He was also a regular political affairs columnist first for rediff.com for five years or so and then shifted to sify.com. He also wrote extensively for niticentral.com "till it stopped publication."


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