Crocodile tears by OHCHR & JKCCS for human rights in Indian & Pakistani sides of J&K. By Hem Raj Jain

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An irked India on July, 8 lodged a strong protest (https://www.dailyexcelsior.com/india-slams-un-report-on-jk-as-false-and-motivated/ ) with the UN rights office over the OHCHR report (https://www.ohchr.org/Documents/Countries/IN/KashmirUpdateReport_8July2019.pdf  ) and in addition to other complaints India termed it as violative of India’s sovereignty and territorial integrity.

As per this OHCHR report - “[on 14 June 2018, OHCHR released a first report on the human rights situation in Indian-Administered Kashmir and Pakistan-Administered Kashmir. On 10 September 2018, the High Commissioner for Human Rights informed the Human Rights Council during its 39th session that the OHCHR report’s findings and recommendations had “not been followed up with meaningful improvements or even open and serious discussions on how the grave issues raised could be addressed.” Moreover, neither India nor Pakistan had taken any concrete steps towards providing OHCHR with unconditional access to their respective sides of the Line of Control (the report examined human rights in Pakistan Administered Kashmir and found that human rights violations there were more structural in nature; these included restrictions on the freedom of expression and freedom of association, institutional discrimination of minority groups and misuse of anti-terror laws to target political opponents and activists). The High Commissioner also informed Member States that OHCHR would continue its monitoring and reporting work on Kashmir]”. Therefore this follow-up OHCHR report of July 8, 2019.

This July 8, 2019 report has also quoted the figures given by ‘Jammu and Kashmir Coalition of Civil Society’ (JKCCS) of Kashmiris killed, injured, blinded etc in Indian side of J&K. But both the OHCHR and JKCCS are merely shedding  Crocodile tears for human rights of Kashmiris in India & Pakistan which is evident from the fact that the human rights can easily be protected on both sides of LoC in unified J&K but they are doing it, as explained below:-

(1)- India has assailed the July 8, 2019 report also by saying that it is ‘violative of India’s sovereignty and territorial integrity’. But India forgot that J&K is not integral part of India and is not like any other State of India.  Rather the political fate of J&K will be decided by plebiscite mandated by ‘Instrument of Accession’ (IoA) as mentioned in my March 25, 2019 online writ petition to J&K High Court reported at http://wadikinews.com/public-interest-writ-petition-under-article-226-of-the-constitution-with-respondents-i-the-union-of-india-ii-the-state-of-jk/

(2)- In seems that J&K High Court has not admitted my said online writ petition hence JKCCS should file this writ petition [preferably on behalf of the victims (and their family members) of human right violation in J&K] which will constrain Government of India (GOI) to carry-out plebiscite (after retrieving PoJK and after maintaining law & order in unified J&K) and which will solve all the human rights problems in both sides of LoC in J&K.

(3)- Before filing said writ petition in J&K High Court for plebiscite, the JKCCS should arrange a meeting of the victims (and their family members) of human right violation in Indian side of J&K and should explain the legal reality to them that as per IoA it is not India or Pakistan but the people of unified J&K who will decide the political fate of Unified J&K. But Governments of India and Pakistan both have taken the territory of J&K under their administration for granted and that is the main reason of human rights violations on both sides of LoC in J&K and this unfortunate situation can be rectified only through said writ petition by JKCCS in J&K high Court.

(4)- The main pleadings in said writ petition in J&K High Court under Article 226 of the Constitution can be as given below :-

(i)- That gory & chronic Kashmir problem has lingered mainly due to ultra-vires acts of the legislative bodies of the Union of India and the State of J&K) about ‘Instrument of Accession’ (IoA) of J&K to India accepted by the then Governor General of India on October 27, 1947 which in essence is given as –“[My Dear Maharajah Sahib, Your Highness’s letter dated the 26th October, has been delivered to me by Mr. V.P. Menon. In the special circumstances, mentioned by your Highness, my Government have decided to accept the Accession of Kashmir State to the Dominion of India. Consistently with their policy that, in the case of my State where the issue of Accession has been the subject of dispute, the question of Accession Should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir, and her soil cleared of the invader, the question of the State’s Accession should be settled by a reference to the people. Meanwhile, in response to your Highness’s appeal for military aid, action has been taken today to send troops of the Indian Army to Kashmir to help your own forces to defend your territory and to protect the lives, property and honor of your people. My Government and I note with satisfaction that your Highness has decided to invite Sheikh Abdullah to form an Interim Government to work with your Prime Minister: Yours Sincerely Sd/- Mountbatten of Burma”].

(ii)-  That as per IoA the people of J&K have nothing to do even with United Nations rather it is the responsibility of India to get plebiscite by getting the soil of united J&K cleared of Pak invaders (including non-citizens of united J&K) and after getting law & order restored in united J&K (including rehabilitation of Kashmiri Pandits) and how India does it is India’s headache whether by its own or through UN or by getting help from any friendly country for retrieving PoJK (militarily or on table).

(iii)- That neither Indian Parliament nor Legislative Bodies of J&K nor any other constitutional authority or institution in India has any constitutional-legal right to decide on the fate of territory of united J&K before plebiscite as per IoA. But in utter violation of this fundamental legal principle the Union of India and the State of J&K have illegally mentioned the J&K as a State like any other State of India and even an integral part of India which is against the letter and spirit of IoA, hence ultra-vires and null & void and legally ought to be repealed by Hon’ble Court.

(iv)- That in view of above mentioned the J&K High Court should be requested to issue appropriate writs as under:-

[1]- Get repealed the Article 1 (3) (a) of The Constitution of India and PART II THE STATE (3) of the Constitution of J&K [which illegally show J&K as Indian territory (like any other State of India) and even an integral part of India without any mention of the condition of plebiscite to decide the territory of J&K as per ‘Instrument of Accession’].

[2]- Recommend to the President of India that the President, under Article 86 (2) of the Indian Constitution, should send message to Parliament to incorporate in such repealed parts of the Constitution of India that – [As per ‘Instrument of Accession’ the fate of territory of J&K will be decided after plebiscite which will be carried out by Union of India after ensuring, in united J&K, the conditions conducive for carrying out such plebiscite].

[3]- Recommend to the Governor of J&K that the Governor, under Article 54 (2) of the Constitution of J&K, should send message to Legislative Bodies of J&K to incorporate in such repealed parts of the Constitution of J&K that [As per ‘Instrument of Accession’ the fate of territory of J&K will be decided after plebiscite which will be carried out by Union of India after ensuring in united J&K the conditions conducive for carrying out such plebiscite].

[4]- (In view of delay of 71 years and immense killings, injuries, sufferings and human rights violations due to chronic & gory so-called Kashmir problem) direct the Union of India to get plebiscite in united J&K at the earliest possible after ensuring in united J&K the conditions conducive for carrying out such plebiscite required by IoA.

--It is hoped that both OHCHR & JKCCS instead of shedding crocodile tears for violation of human rights in Indian & Pakistani sides of J&K,  the OHCHR will persuade JKCCS to immediately file said writ petition in J&K high Court for plebiscite so that human rights on both sides of LoC in J&K can be protected, restored and ensured in an effective manner.

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