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Petitioner: JAMMU & KASHMIR COUNCIL FOR HUMAN RIGHTS through Secretary General Syed Nazir Gilani and another VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 4 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s):Khawaja Muhammad Saeed, Syed Manzoor Hussain Gillani, Muhammad
Siddiq Farooqi Title:JAMMU & KASHMIR COUNCIL FOR HUMAN RIGHTS through Secretary General Syed Nazir Gilani and another vs AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 4 others Case No.: Writ Petition No,122 of 1992 Date of Judgment:1999-04-02 Reported As: 1999 YLR 77 Result: Order accordingly Judgment ORDER ' SYED MANZOOR HUSSAIN GILANI, J.---The petitioner, Syed Nazir Gilani, a state subject and famous human rights activists, Advocate by profession and Secretary General of Jammu and Kashmir Council for Human Rights (for brevity it will be referred as JKCHR) with its headquarter at London, has filed this petition under section 44 of Azad Jammu and Kashmir Interim Constitution Act. 1:*4 for a direction to the respondents Lim appointment of plebiscite adviser to meet me requirement of section 11 of the Constitution. Before proceeding further, relevant provision of the Constitution of Azad Jammu and Kashmir of which the implementation is sought, may be reproduced here. It is section 11 which is as follows: "11. Plebiscite Adviser.---The president may appoint a plebiscite adviser to advice the Government in relation to the holding of a plebiscite in the State of Jammu and Kashmir in terms of the UNCIP Resolutions." 2. The case of the petitioner is that the objects for the JKCHR has been formed are: "(1) To liaise with U.N. Commission on human rights and the sub commission on prevention of discrimination and protection of minorities to seek to promote respect for fundamental human rights in the State of Jammu and Kashmir. (2) To monitor the violation of human rights, (3) To forge close working link with United Nations Military Observer Group in Kashmir and other N.G.Os. Working in the field,
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(4) To provide humanitarian help and assistance to those who are victims of the abuse of human rights in Kashmir and may for this purpose set up a charitable trust, (5) To seek to provide assistance to victims of torture and set up a voluntary funds to finance therapy and rehabilitation projects, to enable victims and their families once again, to lead productive normal life within their community, (6) To preserve, protect and defend the basic rights including the right of self determination as envisaged under U.N. Resolution, of the people of Jammu and Kashmir including the rule of Law, by all legal and constitutional means, (7) To bring to light all acts of the Azad Government of the State of Jammu and Kashmir and that of Indian Held State Jammu and Kashmir and the officers and the authorities working under them which take-away or violate the basic rights or omit to perform functions under the law, of the people of Jammu and Kashmir or any sector or individual member thereof and generally, to act for the maintenance and advancement of these rights, (8) And such other matters allied objects as may be considered necessary to promote and secure the said objects, (9) To set up branch offices in pursuit of those objects." 3. It is stated by the petitioner that respondents Nos.2 and 3 (President and Prime Minister of Azad Jammu and Kashmir), were interviewed by him and urged for appointment of plebiscite adviser to advise the Government with regard to the plebiscite in the State, but no action has been taken by them so far, while it is imperative for them to appoint a plebiscite adviser in view of section 11 of the Constitution for advising the Government in regard to holding plebiscite in the State of Jammu and Kashmir in terms of the U.N. Commission for India and Pakistan (UNCIP) Resolutions of 1948 and 1949. 4. The petitioner in the background of the following paras.11 to 13 of the petition, requests for the indulgence of the Court for a direction to the respondents to fulfil its responsibilities under section 11 of the Constitution. "11 That the atrocities perpetrated by the Indian Security Forces in occupied Kashmir have certainly surpassed the brutalities of the apartheid regime in South Africa, or of the Nazis 50 years ago. The systematic and deliberate acts of murder, torture rape, the destruction of houses and business, pushing hundreds of young people into the concentration camps of the Indian oppressors are all part of vicious plan to break the will of the people demanding the right of self-determination. The Government of India has responded to this situation in two ways. On the one hand, it has isolated the State of Jammu and Kashmir from the rest of world by continuous denying access to international human rights monitoring groups such as the Amnesty International, Asia Watch, International Committee of Red Cross and the people belonging to the electronic and print media of the world. Secondly, systematic barbaric atrocities are being perpetuated against the people of Kashmir in the form of collective punishment, mass killing, mass confinement, inhuman and degraded treatment, heinous torture, prolonged siege, enforced starvation, burning of houses and shops, demolishing of structures, molesting of elders, gangraping and beating of inmates. "12 - That the Indian occupied Kashmir present a ghastly picture of unrelenting savagery, brutal tortures of youth in interrogation centres, gang-rape of helpless women, indiscriminate murder of innocent citizens, arsoning house and hamlets, looting of private property and utter devastation of villages and towns. India has amused half a million armed forces in Kashmir to quell the people's uprising who have risen against tyranny and barbarism. The people of the State of Jammu and Kashmir even with their blood are continuously trying to implement the UNCIP Resolutions but to no avail. The Indian Government with its Brute forces continuously suppressing the wishes of the people in murdering thousands of them and, thus, committing genocide. This fact itself is suffice for the president to appoint a plebiscite adviser under section 11 of the Constitution Act.
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"13. That due to the tremendous sacrifice offered by the people of the State of Jammu and Kashmir there are clear cut signals even from the western countries including the united states of America that time for solution of Kashmir problem is now no more far away than it was three years before. This fact is also sufficient for respondent No,3 to advise respondent No,2 to appoint the plebiscite adviser but they are miserably failing in their national duty at this hour of trial and tribulation." ' Substantiating his case in view of above, it is stated in para.6. "6. That it may kindly be appreciated that section 11 of the constitution act was enacted by the legislature of the Azad Government of the State of Jammu and Kashmir with a view to endeavour towards the mobilising of the world opinion leading to implementation of the UNCIP Resolutions which aimed at to conduct plebiscite, of course, with the consent of the Government of Pakistan and India in terms of aforesaid resolutions. The consistent reluctance of President of Azad Government of the State of Jammu and Kashmir and other respondents not to appoint the plebiscite adviser is violative of the Constitution provision and the Honourable High Court, being the custodian of the Constitution, is required to preserve, protect and defend the rights of the people of the State of Jammu and Kashmir including the rule of law by all legal and Constitutional means and .To safeguard the sanctity of these provisions." 5. The Government of Pakistan, through the Ministry of Kashmir Affairs was arrayed as respondent No,5 in the case vide order of the Court, dated 24-9-1996 who in spite of being served upon, has not filed any written statement. Other respondents have filed the written statement. All the respondents have in substance agreed and admitted the contentions of the petitioner regarding appointment of plebiscite adviser, however, it is the joint stand of all the respondents i,e, the Government of Azad Jammu and Kashmir and Azad Jammu and Kashmir Council that the proper time for appointment of plebiscite adviser shall be when the Government of India is prepared and extends cooperation for holding plebiscite in the State of Jammu and Kashmir. In the absence of cooperation from India the appointment of adviser at this stage shall incur huge expenditure which the Government of Azad Jammu and Kashmir cannot afford at this stage. The Azad Jammu and Kashmir Council in a preliminary objection raised in the written statement has stated as follows: "That in accordance with the Azad Government of the State of Jammu and Kashmir Interim Constitution Act, 1974, under section 31(3), the Government of Pakistan is responsible for the matters arising out of United Nations Commission on India and Pakistan resolutions. In accordance with statutory provisions the Government of Pakistan is discharging its responsibilities to pursue the international community and the United Nations to help resolving the Kashmir issue by making the Government of India to agree and allow the holding of plebiscite in the State of Jammu and Kashmir. The appointment of plebiscite adviser as provided under section 11 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, will be made the moment India is prepared and cooperative with the Government of Pakistan for holding plebiscite in the State of Jammu and Kashmir. The plebiscite adviser if appointed at this stage, Azad Government shall have to incur huge expenditure which the Azad Government cannot afford at this stage. The respondents have never expressed their intention for not appointing the plebiscite adviser and are anxiously waiting for the time to come when the plebiscite adviser would be appointed with the cooperation of Government of India. The petitioner cannot be termed as aggrieved persons at the hands of the respondents as such the present writ petition entails, dismissal on this short ground among others." 6. We have heard the petitioner Syed Nazir Gilani and the Advocates representing the respondents at length. 7. The petitioner contended that it is the responsibility of Pakistan and India to implement the UNCIP Resolutions of 1948 and 1949 and for achieving the object, the Azad Kashmir Government being a liberated part of the State, having its Constitutional setup, is under obligations under section 11 of the Constitution to appoint a plebiscite adviser to advise the Government to mobilise the world
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opinion for the purpose. He contended that in accordance with the UNCIP Resolutions the cease- fire is observed, United Nations observers are appointed on both sides of the cease-fire line and the case of Kashmir is still on U.N. Agenda, hence it cannot be said that the plebiscite adviser shall be appointed when India agrees to it. He contended that inaction of India in delaying the implementation of UNCIP Resolutions, necessitates the appointment of adviser for a whole time functioning on the matter for advising the Azad Kashmir Government for mobilising the world opinion to compel India to implement the resolutions. He contended that Azad Kashmir is the base camp of liberation activities being the liberated part of the State. He also contended that the words may' used in section 11 of the Constitution has to be read as shall' and is of mandatory nature, as the Azad Kashmir and its Government owe their existence to the liberation movement and UNCIP Resolutions. 8. The learned Advocates appearing on behalf of respondents contended that the appointment of plebiscite adviser is a Constitutional requirement, but it is premature to appoint the adviser as the plebiscite process has not commenced. According to them the proper stage for appointment of the adviser is when the process of plebiscite actually starts and India agrees to it. They contended that Azad Kashmir Government is short of funds, hence cannot afford to appoint the adviser, till the actual stage arises for it. In the written arguments filed on 2-1-1999, it is contended that question of appointment of adviser is a political question which can be directed by the executive only in its discretion and the Courts should not intervene in the plebiscite question. It is also stated in the written arguments that the implementation of UNCIP is the responsibility of Government of Pakistan. The Azad Kashmir Government and Council, who are not authorised to legislate on the subject, cannot issue any executive order of any sort in this behalf. It is also contended by the learned Advocate for the Azad Government that provisions of section 11 are in conflict with the provisions of sections 31(3) and 56 of the Constitution. 9. Before dilating upon the relevant arguments and points of law raised through the pleadings, at bar and in the written arguments, a brief background of the involvement of U.N. In Kashmir dispute. Azad Kashmir movement, status of its Government. And Constitutional development in Azad Kashmir may be placed on record which are relevant for deciding the case put up before the Court. 10. The State of Jammu and Kashmir under the instrument of partition should have formed the part of Pakistan, as majority rather predominant part of its population, is Muslims. But India in utter disregard to the instrument of partition usurped most part of the State which is under its immoral, unconstitutional and illegal control. The territory now comprising Azad Jammu and Kashmir, and Gilgit and Baltistan have been liberated by its people. The people of the Jammu and Kashmir State rose in revolt against the autocratic Government of the Dogra Maharaja and liberated this part of the State. India illegally occupied the other parts of this State, against which the people of the occupied Kashmir rose in Jehad and the matter was taken to the United Nations by India. The Security Council of the United Nations unanimously adopted different resolutions from time to time and appointed a permanent commission for India and Pakistan on the Kashmir problem on 20th January, 1948. (Which will be referred as UNCIP hereinafter). The above referred resolution was followed by the resolution of 21st April, 1948 and 3rd June, 1948, where after, the UNCIP started functioning and passed the historical resolution on 13th August, 1948 followed by other resolution of 5th January, 1949. Both the resolutions are respectively reproduced here for being material for the purpose of discussion to follow. (The resolutions and clarifications of resolutions referred in this judgment are reproduced from the documents issued by Government of Pakistan through M. Ayub, Liaison Officer with U.N. Commission for India and Pakistan, from Karachi on 25-1-1949). The United Nations Commission for India and Pakistan.
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"Having given careful consideration to the points of view expressed by the representatives of India and Pakistan regarding the situation in the State of Jammu and Kashmir, and ' Being of the opinion that the prompt cessation of hostilities and the correction of conditions the continuance of which is likely to endanger international peace and Security are essential to implementation of its endeavours to assist the Governments of India and Pakistan in effecting a final settlement of the situation. ' Resolves to submit simultaneously to the Governments of India and Pakistan the following proposal: ' PART I Cease-Fire Order. (A) The Governments of India and Pakistan agree that their respective High Commands will issue separately and simultaneously a cease-fire order to apply to all forces under their control in the State of Jammu and Kashmir as of the earliest practicable date or dates to be mutually agreed upon within four days after these proposals have been accepted by both Governments. (B) The High commands of Indian and Pakistani forces agree to refrain from taking any measures that might augment the military potential of the forces under their control in the State of Jammu and Kashmir. (For the purpose of these proposals 'forces under their control' shall be considered to include all forces, organised, and unorganised, fighting or participating in hostilities on their respective sides). (C) The Commander-in-Chief of the forces of India and Pakistan shall prompt), regarding any necessary local changes in present dispositions which may facilitate the cease-fire. (D) In its discretion and as the Commission may find practicable, the Commission will appoint military observers who under the authority of the Commission and with the cooperation of both Commands will supervise the observance of the cease-fire order. (E) The Government of India and the Government of Pakistan agree appeal to their respective people to assist in creating and maintaining an atmosphere favourable to the promotion of further negotiations." ' PART II Truce Agreement ' Simultaneously with the acceptance of the proposal for the immediate cessation of hostilities as outlined in. Part I, both Governments accept the following principles as a basis for the formulation of a truce agreement, the details of which shall be worked out in discussion between their representatives and the commission. (A) - (1) 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 endeavour to secure the 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. (3) Pending a final solution, the territory evacuated by the Pakistan troops will be administered by the local authorities under the surveillance of the commission. (B) (1) When the commission shall have notified the Government of India that the tribesmen and Pakistan nationals referred to in Part II, A-2 hereof have withdrawn, thereby terminating the situation which was represented by the Government of India to the Security Council as having occasioned the presence of Indian forces in the State of Jammu and Kashmir, and further, that the Pakistan forces are being withdrawn from the State of Jammu and Kashmir, the Government of
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India agrees to begin to withdraw the bulk of their forces from the State in stages to be agreed upon with the commission. (2) Pending the acceptance of the conditions for a final settlement of the situation in the State of Jammu and Kashmir, the Indian Government will maintain within the lines existing at the moment of cease-fire the minimum strength of its forces which in agreement with the commission are considered necessary to assist local authorities in the observance of law and order. The commission will have observers stationed where it deems necessary. (3) The Government of India will undertake to ensure that the Government of the State of Jammu and Kashmir will take all measures within their power to make it publicly known that peace, law and order will be safeguarded and that all human and political rights will be guaranteed. (C) (1) Upon signature, the full text of the Truce Agreement or communique containing the principles thereof as agreed upon between the two Governments and commission, will be made public. ' PART III ' The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the Truce Agreement both Governments agree to enter into consultations with the commission to determine fair and equitable conditions whereby such free expression will be assured. "VII. Resolution adopted at the meeting of the United Nations Commission for India and Pakistan on 5th January, 1949. The United Nations Commission for India and Pakistan. ' Having received from the Governments of India and Pakistan in communications, dated December 23 and December 25, 1948 respectively their acceptance of the following principles which are supplementary to the commission's resolution of August 13, 1948; (1) The question of the accessior of the State of Jammu and Kashmir 13 India or Pakistan will be decided through the democratic method of a free and impartial plebiscite. (2) A plebiscite will be held when it shall be found by the commission that the cease-fire and truce arrangements set 'forth in Parts I and II of the commission's resolution of 13th August, 1948, have been carried out and arrangements for the plebiscite have been completed. (3) (a) The Secretary General of the United Nations will, in agreement with the commission, nominate a Plebiscite Administrator who shall be a personality of high international standing and commanding general confidence. He will be formally appointed to office by the Government of Jammu and Kashmir. (b) The Plebiscite Administrator shall derive from the State of Jammu and Kashmir the powers he considers necessary for organising and conducting the plebiscite and for ensuring the freedom and impartiality of the plebiscite. (c) The Plebiscite Administrator shall have authority to appoint such staff or assistants and observers as he may require. (4) (a) After implementation of Parts Iand II of the commission's resolution of 13th August, 1948 and when the commission is satisfied that peaceful conditions have been restored in the State, the commission and the Plebiscite Adviser will determine in consultation with the Government of India, the disposal of Indian and State armed forces, such disposal to be with due regard to the security of the State and the freedom of the plebiscite. (b) As regards the territory referred to in A-2 of Part II of the resolution of 13th August final disposal of the armed forces in that territory will be determined by the commission and the. Plebiscite Administrator in consultation with the local authorities.
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(5) All civil and military authorities within the State and the principal political elements of the State will be required to cooperate with the Plebiscite Administrator in the preparation for and the holding of the Plebiscite. (6) (a) All citizens of the State who have left it on account of the disturbances will be invited and be free to return and to exercise all their rights as such citizens. For the purpose of facilitating repatriation there shall be appointed two commissions, one composed of nominees of India and the other of nominees of Pakistan. ' The commissions shall operate under the direction of the Plebiscite Administrator. The Government of India and Pakistan and all authorities within the State of Jammu and Kashmir will collaborate with the Plebiscite Administrator in putting this provision to effect. (b) All persons (other than citizens of the State) who on or since 15th August, 1947, have entered it for other than lawful purpose, shall be required to leave the State. (7) All authorities within the State of Jammu and Kashmir will undertake to ensure, in collaboration with the Plebiscite Administrator, that: (a)There is no threat, coercion or intimidation, bribery or other undue influence on the voters in plebiscite; (b)No restrictions are placed on legitimate political activity throughout the State. All subjects of the State, regardless of creed, caste or party, shall be safe and free in expressing their views and in voting on the question of the accession of the State to India or Pakistan. There shall be freedom of the press, speech and assembly and freedom of travel in the State, including freedom of lawful entry and exist; ' All political prisoners are released; ' Minorities in all parts of the State are accorded adequate protection; and ' There is no victimisation. ' The Plebiscite Administrator may refer to the United Nations Commission for India and Pakistan problems on which he may require assistance, and the commission may in its discretion call upon the Plebiscite Administrator to carry out on its behalf any of the responsibilities with which it has been entrusted. (9) At the conclusion of the plebiscite, the Plebiscite Administrator shall report the result thereof to the commission and to the Government of Jammu and Kashmir. The commission shall then certify to the Security Council whether the Plebiscite has or has not been free and impartial. (10) Upon the signature of the truce agreement the details of the foregoing proposals will be elaborated in the consultation envisaged in Part III of the Commission's Resolution of 13th August, 1948. The Plebiscite Administrator will be fully associated in these consultations. ' Commends the Governments of India and Pakistan for their prompt action in ordering a cease- fire to take effect from the minute before midnight…
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