Status of Indian and Pakistani armies in Jammu and Kashmir

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London: Dr Nazir Gilani is among a few Kashmiris who regularly write on Kashmir and human rights abuse. He, at times, comes out with new phrases, which provide a new dimension to debates. In response to my article, 'Another own goal', he made an interesting remark: "India is not an occupier in Kashmir. She is there as the consequence of a provisional agreement with the Government of Kashmir.

The jurisprudence of this provisional agreement is accepted by the Government of Pakistan in all her bilateral agreements with the Government of India, namely, Tashkent Accord and Shimla Accord."

This observation gave a new dimension to the debate and requires further consideration. The Indian army came to Jammu and Kashmir not as army of invasion; rather they came on request of the Maharaja of Jammu and Kashmir.

On 22 October 1947 some parts of the State were invaded by unruly tribal warriors, killing and pillaging on their way to Srinagar, the Maharaja's forces were not able to defend the State territory. The Maharaja had two choices: either let these tribesmen run over the country and destroy everything or seek help from India - he chose the later.

The Maharaja could not have got help from the government of Pakistan as they betrayed his trust; and despite the Standstill Agreement with the Maharaja, they stopped all the necessary supplies to the State and managed the tribal invasion to punish the Maharaja for not yielding to the demands of the Pakistani rulers who wanted State's accession to Pakistan.

The Maharaja requested help from India, and signed an accession treaty on 26th October 1947, which was 'provisionally' accepted by the government of India. In line with the request of the Maharaja the Indian forces landed in Srinagar on 27th October 1947. Their primary purpose was to save the State from the invaders; and protect 'life', 'liberty' and 'property'.

So Dr Nazir Gilani's contention is that the Indian army did not invade the State, rather they went there on the request of the Ruler of Jammu and Kashmir, and went there to protect the state from invasion. They had a specific role to perform in the State. What they did there, wrong as it might be, does not change the legal position of the army's presence.

In reply to some of the criticism, in my next article - It is a matter of perspective- I said: 'He (Dr Nazir Gilani) is entitled to express his opinion and defend it. Others have a right to accept it, remain silent or challenge it. Question, however, is if the Indian army, using Dr Nazir Gilani's phrase, is not 'an occupying force' then logically it is a 'legal force'. If that is so, then what is the problem? Why people of Kashmir are complaining and protesting?

don't know how many takers there will be for this argument in Jammu and Kashmir, and especially on the Indian side of the LOC. Also I don't know how many people will direct their wisdom and experience to elaborate this point to the satisfaction of those who have serious grievances.

Another friend and a colleague in struggle, Mumtaz Khan, also cared to read that article and made the following comments: 'The other point that didn't fit into nationalistic profile of Shabir Sahib when he specifically sought opinion of Valley people on the observations of Gilani Sahib that is very much against the very essence of nationalism especially what Shabir Sahib believe in entire state Jammu and Kashmir as single entity but trying to localize it which opponent forces normally practice to keep this division alive. I do not mean to doubt his intentions but words normally create such impression'.

Perhaps my friend didn't read carefully to note that I never used the word 'Valley' in that paragraph. I said: 'I don't know how many takers there will be for this argument in Jammu and Kashmir, and especially on the Indian side of the LOC'. Jammu and Kashmir does not mean the 'Valley'. Similarly the phrase 'on the Indian side of the LOC' does not stand for the 'Valley'.

Anyhow the fact is that many parts of the State have no complaints from the presence of the Indian army. For example, people of Gilgit and Baltistan have no problem with the Indian army. I have spoken to some leaders from Gilgit and Baltistan on the topic; they clearly have no problem from the Indian army. However their problem is related to the presence of the Pakistan army in Gilgit and Baltistan and many regard it as an army of occupation.

Similarly people of Ladakh have no problem with the presence of the Indian army in Jammu and Kashmir. I have spoken to many people from Jammu, and they seem to have no serious issue with the presence of the Indian army. However they had a serious problem with the presence of militants, many of them non Kashmiris, in parts of the Jammu region and wanted the Indian army to root them out.

Majority of people of Pakistani Administered Kashmir criticise what their brothers and sisters have to endure in the Valley, but have no direct problem with the presence of the Indian army (cross border skirmishes and firing created problems for the people, but that generally happened when there was infiltration taking place or when there was tension on the LOC which is manned by the Pakistan army from the other side).

That leaves us with the Valley of Kashmir, main part of the State in many ways; and which has faced wrath of the Indian army since 1989. The Indian army's relationship with the Valley has been different from other areas of the State; hence majority of the people, especially in 1990s regarded the Indian army as 'army of occupation'. I was referring to this fact rather than undermining struggle for unification and independence of the State, which has always been close to my heart.

After this explanation it would be pertinent to analyse the legal status of the Pakistani army in some parts of the State. Unlike the Indian army, the Pakistani army was never invited by a Ruler or any legitimate authority to enter the territory of the State of Jammu and Kashmir. Under terms of the Standstill Agreement, Pakistan was responsible for providing certain non military services which the government of the Punjab provided during the British Raj.

But despite the Standstill Agreement Pakistani government managed a 'Tribal invasion' to acquire Jammu and Kashmir. Unofficially Pakistani army and civilians entered the state territory to support and direct the tribal invasion. Officially Pakistani troops entered the State territory in April 1948, not on the request of Kashmiris, but to safeguard their strategic and other national interests.

The UN Security Council took a serious notice of illegal entry of the Pakistani troops in the State territory; and the UNCIP Resolution of 13 August 1948 explains this situation in the following words:

(l) As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw its troops from that State.

(2) The Government of Pakistan will use its best endeavor to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistan nationals not normally resident therein who have entered the State for the purpose of fighting.

I hope this explanation will help readers to understand legal status of both armies at the time of their entry in to the State territory. Their presence and role in the respective parts is subject of much controversy and resentment, but that is a separate topic. (ANI)

(The writer is a Spokesman of Kashmir National Party, political analyst and author of many books and booklets. Also he is Director Institute of Kashmir Affairs.)(ANI)

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