Jammu & Kashmir

Rajat VaishnawLLB 2nd YearRoll No. 163

Partition and dispute

• Before Independence from British in 1947 from 1820, Kashmir was ruled by the Maharaja of Kashmir who was Hindu although the majority of the population were Muslim, except the Jammu region.

• The partition was made on religious lines resulting in to the formation of two separate countries – India and Pakistan. Pakistan insisted that Kashmir should be given to it.

• Because of its location, Kashmir could choose to join either India or Pakistan. Maharaja Hari Singh was the ruler of Kashmir. Unable to decide which nation Kashmir should join, Hari Singh chose to remain neutral.

Indo-Pakistani War of 1947 • But his hopes of remaining independent were dashed in October 22 1947, as Pakistan sent in Muslim tribesmen who were knocking at the gates of the capital Srinagar.

• The Maharaja on October 24,1947 sent a frantic appeal to the Government of India for military help.• India refused to provide assistance unless the instrument of Accession is signed.• The Maharaja signed the instrument of Accession on October 26,1947 and it was accepted by india on October 27, 1947.• By the terms of the Instrument of Accession, the Maharaja, on behalf of the state, acceded to the Dominion of india on three subjects, viz. defence,external affairs and communications.

Tashkent agreement • In 1957, Kashmir was incorporated into the Indian Union. It was

given a special status under Article 370 of India's constitution, which ensures, among other things, that non-Kashmiri Indians cannot buy property there.

• Fighting broke out again in 1965, but a ceasefire was established. Indian Prime Minister, Lal Bhadur Shastri, and Pakistani President, M Ayub Khan, signed the Tashkent agreement on January 1, 1966.

• They resolved to try to end the dispute, but the death of Mr Shastri and the rise of Gen Yahya Khan in Pakistan resulted in stalemate (deadlock).

Shimla Agreement • In 1971 a third war, resulting in the formation of Bangladesh was broken out and India declared war on December 3, 1971. When Indians entered 50 km into the area of Pakistan, a ceasefire was reached.

• In 1972 Indira Gandhi, the Indian prime minister, and Zulfikar Ali Bhutto signed the Simla Agreement, which repeated the promises made in Tashkent.

Infiltration of Pakistani guerrillas

• The status quo was maintained until 1989. Thereafter Pakistani guerrillas struck in the Indian Kashmir valley. They established a reign of terror and drove out almost all the Hindus from the valley. Meanwhile Indian and Pakistani troops regularly exchanged fire at the border.

• India and Pakistan both tested nuclear devices in 1998, and then in 1999 test-fired missiles. When the Indian Prime Minister, Atal Behari Vajpayee, visited Lahore by bus in 1999, the world felt that such a genuine effort at friendly neighborhood relations would lower the tension along the LOC.

Kargil War & Cross-border troubles• But, again the cross-LOC firing in Kargil began during the mid-1998. Indian forces drove them out fighting bravely. The death toll, including both soldiers and civilians, was more than 30,000.

• India argued that the infiltrators were trained and armed by Pakistan, and based in "Azad Kashmir" with the full knowledge of the Pakistani government. Pakistan said that they were freedom fighters (!) from Kashmir and that it was giving only moral support.

Wars between Pakistan and India• First Kashmir War-1947• Movement of Pakistan’s irregular forces to Srinagar• Plea made by Harry Singh to India• Instrument of accession

• Second Kashmir War- 1965• Pakistan’s Gibraltar's Operation• United Nations mandated ceasefire

• Third Kashmir War-1971• Direct Military Confrontation• Instrument of surrender

International Human Right Law

o International human right law prohibits the arbitrary deprivation of life under any circumstances

o The Government of India is a signatory to the International Covenant on Civil and Political Rights (ICCPR)

o Article 6 of the ICCPR expressly prohibits derogation from the right to life, thus even during the time of emergency.

o The International Covenant on Civil and Political Rights (ICCPR) also prohibits torture and other forms of cruel, inhuman and degrading treatment

o Articles 4 and 7 of the ICCPR explicitly ban torture, even in times of national emergency or when the security of the state is threatened

Armed Forces Special Powers Acto Arrest individuals at will without any arrest warrants

o Raise residential houses to ground without any prior notification

o Shoot at will on any suspicious individual

o And above all enjoy full impunity from law and court