Indian Occupation: De Facto to De Jure


Dr. Waleed Rasool
Scarred by a turbulent mixture of unfettered brinkmanship and realpolitik, which have led to numerous and ongoing acts of aggression, invasion and annexation. The month of October is of remarkable significance in the political history of Jammu and Kashmir and in the daily lives of all Kashmiris. Since 27th October 1947, India has maintained a steady course in aiming to achieve the full military occupation of Jammu and Kashmir. There has been consistent strategic thinking both at the campaign and tactical level. International experts of Kashmir dispute maintain that India was hatching a plan to occupy Jammu and Kashmir before the events of 21/22 October 1947, when India finally landed the first Sikh 1/11th regiment of 3500 troops at Srinagar airport. In order to gain control over Kashmir, India’s chief modus operandi was set within the realist framework: engaging the entirety of the three key actors in the dispute i.e. Kashmiris, Pakistan and the UN simultaneously. Massey (1947-1948), then Pakistan Army Chief Lt. General, admitted that the land army at Srinagar airport on 27th October occurred with the connivance of the involvement of Lt. General Rob Lockhart, Air Marshal Thomas and Rear Admiral T. S. Hall. The preparation was carried out prior to 26th July when 100 Dakota transport aircrafts were assembled in Delhi proving that India’s sole focus and goal was firmly set on military invasion. Breathing down India’s neck, whilst sending a clear message, a Resolution was adopted on 19th July by the Muslim Conference at Sardar Ibrahim Khan’s residence in Aabi Guzar, Srinagar. India was now feeling the very pulse and will of the majority of Kashmiris’ inclination toward Pakistan because Kashmiris acceded to Pakistan 24 days before Pakistan and India came into existence on 14th and 15th July 1947. To accomplish set objectives, Pandith Nehru worked on three tactical fronts simultaneously. He managed the Kashmiris through Sheikh Abdullah to silence the sentiment of 78% Muslim majority of Kashmir while engaging Pakistan in peace endeavors. After gaining a military foothold on 27th October 1947, India rushed to the UN to stamp the notion that she is committed, even at international forums level, to grant Kashmiris the right of self-determination which culminated in the adoption of the 5th January UNCIP Resolutions under Chapter-VI of the UN Charter. India’s entire plea meant to justify the military invasion of 27th October relied on the Instrument of Accession. However, international legal scholars have questioned the legality and validity of this Instrument of Accession. The premise underpinning the empirical research works published by an Oxford University Press was based on the following points: 1) Indian army was already guarding Srinagar Airport when the Sikh Maharaja of Patiala provided Hari Singh a battalion of infantry and a battery of the mountain artillery. Alastair Lamb observed that ‘when Indian troops landed on 27th, they caught in to surprise, Patiala gunners were already guarding the Srinagar Airfield: (A. Lamb, p131) 2) Victoria Scofield argues it was never possible to sign the document when the Maharaja left from Srinagar to Jammu on 26th at noon along with his entire Caravan when it was taking up 18 hours to reach Jammu. 3) The Maharaja was in a desperate rush because he did not have any control over his state. 4) The resolution adopted by the elected members at the Muslim Conference on 19th July regarding accession to Pakistan reflected, affirmed and confirmed the consensus of the people as carried out by their constituent body because they were elected representatives when Sheikh Abdullah’s National Conference boycotted the elections. 5) According to Sir Gerald Fitzmaurice, Hari Singh had no legal authority in signing the Instrument of Accession because he had already delegated the authority under the same subject to the Government of Pakistan in pursuit of the Standstill Agreement. 6) The Instrument of Accession was conditional, subject to ratification of a popular referendum in the erstwhile State of Jammu and Kashmir. According to renowned Indian Supreme Court lawyer and author Noorani (p.228) Gandhi raised the valid point as per Indian Independence Act under Section 7(10) b,1947. The British Crown’s suzerainty over the Indian Princely States lapsed and with all treaties and agreements in force between them beggars the question how could the Maharaja sign the Instrument of Accession when he had no legal authority?  Victoria Schofield maintained, even if the decision of the Maharaja, being the ruler of the Muslim majority state was justified, why was the decision of the Muslim rulers of Junagarh and Hyderabad not deemed to be justified? The argument advanced by independent and internationally recognized scholars holds both internal and external validity having been impartially examined. It is important to observe that no single Pakistani author was cited to challenge the Indian military occupation of the 27th of October on legal grounds. It is interesting to mention that there is no legal justification even in the context of the Indian argument in post 5th August 2019 scenario, because article 370 and 35A were the only thread which glued Kashmir to India as argued Mehbooba Mufti. Article 370 was incorporated under the special circumstances by Sheikh Abdullah in 1953 providing a constitutional link between India and Jammu and Kashmir. Even, if Article 370 was legally binding between Kashmir and Union of India as per the Indian argument now there is no such legal justification. India’s strategic moves remained linear in outlook in order to rely on flexing its military muscle whilst simultaneously projecting the appearance of democratic governance on the international stage. It has been established and proven time and again that India favors the geography over the demography, namely territorial occupation minus population. India not only denies international laws but manipulates her own domestic laws at will as per the whims of the state.  India ensured that every opportunity would be taken to quantitatively increase the bulk of troops on the grounds which reached 131000 in 1953. On 12th January 1953 during a UNSC session, Dr Graham proposed to demilitarize Kashmir as a prerequisite to exercise the right to self-determination. It was proposed that 22000 Indian troops and 6000 Pakistani armed forces remain in Kashmir. However, India denied the proposed suggestion not wanting to decrease its military personnel. India’s pattern is consistent with heavy reliance on the density of troops, presently approximating a million ie 903000 –an all-time high in 2019. It is the highest concentration of troops in any chunk of land globally post 5th August 2019 making IoK the most militarized territory.

As an occupying power, India is the aggressor as defined by international law therefore Kashmir is an international armed conflict with relevance to customary and treaty-based law including the Fourth Geneva Convention of 1949. India is an occupying power therefore international law seeks to limit the effects of the armed conflict for humanitarian reasons. The rule of law (RULAC) classifies IoJK as an international armed conflict. Therefore, occupying power cannot extend sovereignty over the occupied territory. Having lost both credibility and legitimacy in the eyes of the governed population, having forsaken all constitutionality and democratic rule principles, India resorts to administration through the barrel of a gun to control. India may retain the de facto control but never the de jure because every and any occupying power exercises the same option namely forcible subjugation through military occupation rule. Although ultimately resilience triumphs unfortunately it does but at heavy human cost.

The need of the hour is to rebuild our case on legal grounds aside from other options. However, on the political front, Kashmir’s case used to be said to be  a war of nerves between Pandith Nehru and Sheikh Abdullah, both Kashmiri Pandith’s in DNA. Nehru maintained de facto control and Abdullah lost. It is why, his successor Farooq Abdullah has nothing to convey to the younger generation especially after 73 years. Conversely, Sardar Ibrahim’s vision was clear when compared to Abdullah’s. Ibrahim did strive for effective control. Consequently, the people of IoJK have to maintain the consistency of the struggle and strive for it, legally justified struggle, following in the footprints of Sardar Ibrahim.

(-The writer is a hails from Indian occupied Kashmir. Asst. Prof and Director of the Institute of Multi-track Dialogue, Development, and Diplomacy, Islamabad.)