January 30, 2007	Tuesday	Muharram 10, 1428

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ISLAMABAD, Jan 29: An Indian-held Kashmir jurist says the state’s 1947 accession by its ruler to India was flawed, never given a promised ratification, and proposes that Azad Kashmir and the All-Parties Hurriyat Conference (APHC) make a new initiative to Islamabad and New Delhi for a solution or approach the UN.

Molvi Aijaz Ahmad Naqshbandi, now visiting Pakistan and Azad Kashmir, questioned the legality of Jammu and Kashmir’s accession to India in 1947 on multiple grounds.

Talking to Dawn on Sunday, he said only the Azad Kashmir government was entitled to speak for both parts of the disputed state because the legislative assembly sitting in Muzaffarabad also represented the Indian-held part while an assembly there kept 25 seats vacant for Azad Kashmir.

“Now when the two countries (India and Pakistan) have resolved to solve their dispute by bilateral talks ... it is an opportune time for the prime minister/president of AJK, in collaboration with APHC, to approach (them) ... by tendering an application to the same effect in writing either directly or through the observers of the UNO stationed in both countries,” he said.

This, he said, would be in consonance with UN resolutions passed on the issue since the issue was taken to the world body by India at the start of the first of the two India-Pakistan wars over Kashmir in 1947.

Mr Naqshbandi, who is based in Srinagar, and often deals with constitutional matters in his legal practice but is not associated with any political party, said the Indian and Pakistani governments must get “fullest cooperation” of the people of their countries and of Kashmir above their party politics because of the immense importance of the Kashmir issue for regional and international peace.

But, he said, if any country denied the demand of Kashmiri political parties from a common platform, they could approach the UN to challenge the legality of the instrument of accession under Article 36 of its charter that empowers the Security Council to “recommend appropriate procedures or methods of adjustment” at any stage of a dispute and also provides for a reference to the International Court of Justice (ICJ).

Mr Naqshbandi said such a course, even in the worst case, would leave no scope for the UN under its charter but to recommend to the ICJ to determine the legality of the instrument of accession and would facilitate a permanent settlement.

Any other settlement, he said, might not be legally binding on the Kashmiri people even in respect of a UN-mandated plebiscite because they had not been a party to the dispute between India and Pakistan.

Mr Naqshbandi said Kashmir’s position was different from that of British India’s other princely states because of its 1846 sale by the British to Dogras and thus the state ruler could not accede to India as envisioned by the Indian Independence Act of 1947 passed by the British parliament.

Even what he saw as a flawed instrument of accession was never ratified by what then British governor-general of India, Lord Louis Mountbatten by the promised “reference to the people”, he said.

Mr Naqshbandi questioned the accession offered by Kashmiri ruler Maharaja Hari Singh on another ground: while section 7 (1) (b) of the Indian Independence Act declared all treaties executed by the British with Indian provinces and princely states and their rulers as cancelled, the 1846 Treaty of Amritsar selling Kashmir to Dogra Maharaja Gulab Singh was also deemed to have been cancelled.

This, he said, was a peculiar kind of treaty with no parallel in the sub-continent because it conferred the right to rule Jammu and Kashmir upon Dogras and their heirs. “Once the same was deemed to have been cancelled, it withdrew the Dogra dynasty’s authority to rule the J&K,” he argued.

He said Mr Hari Singh had accepted the operation of the Indian Independence Act to Kashmir by mentioning on the top of his instrument of “conditional accession” that he was doing it under that Act. “Hence he himself also conceded to his being stripped of the authority to rule J&K under section 7(1)(b). Therefore, the instrument of accession could not legally accede J&K with India because this was executed by Mr Hari Singh not in the capacity of Maharaja or ... dejure ruler of J&K.”

It was for this reason, he said, that Lord Mountbatten addressed a separate letter to Mr Hari Singh promising that the accession would have to be put to the state people for ratification.

Mr Naqshbandi cited the Indian constitution and some laws to support his point that New Delhi too recognised that the accession was still not finalised.