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Kashmir is a case qualitatively different from
border disputes. Here the territory involved is a
whole country, a country larger than many member
states of the United Nations, a country larger the
major part of which has existed for more than a
millennium as a sovereign political entity on its
own, a country whose distinct physical environment,
history and culture have shaped its people's
individuality.
Is the Kashmir dispute a "territorial dispute"?
It is a "territorial dispute" only in
the sense that the State of Jammu and Kashmir is
disputed territory and is so recognized
internationally. But the expression can be
misleading. For it usually suggested contentious
claims of two states to a territory, one party
basing its claim on the validity of a de facto or de
jure boundary demarcation and the other challenging
it. That is why territorial disputes are hardly
distinguishable from border disputes, amenable to
solution through bilateral agreement, judicial
determination or, more often, arbitration.
Kashmir is a case qualitatively different from
border disputes. Here the territory involved is a
whole country, a country larger than many member
states of the United Nations, a country larger the
major part of which has existed for more than a
millennium as a sovereign political entity on its
own, a country whose distinct physical environment,
history and culture have shaped its people's
individuality. Here the matter is not one of placing
a few hundred square miles on one side or the other
of an international frontier and thus settling a
boundary conflict. It is a matter of the disposition
of a country through the same process by which the
two contestants, the Indian Union and Pakistan
themselves emerged as independent states - the
process of establishing sovereignties on the basis
of popular consent. As long as the Kashmir dispute
remains unresolved, the agenda of the independence
of the South Asian subcontinent remains unfinished.
Did not the Maharaja's act of accession to India
gain legitimacy by virtue of the fact that it was
supported by the largest political organization in
Kashmir, the National Conference, and the most
popular leader, Sheikh Mohammad Abdullah?
If this support had really rested on,
and reflected, popular sentiment, then the history
of the Kashmir dispute would have been entirely
different. In that case, India would have been not
merely willing but eager to have the United Nations
conduct a plebiscite in Kashmir so that the
accession would be speedily ratified and India's
position vindicated for good. All that India would
have required would have been sufficient safeguards
against a breach of the Ceasefire Line or eruption
of violence during the period of the plebiscite.
These would have been easily obtained. Indeed, they
were provided for in the plan drawn by the United
Nations Commission for India and Pakistan (UNCIP).
With a Plebiscite Administrator appointed by the
United Nations and inducted into office, the freedom
of the voters from coercion and intimidation would
have been assured. Pakistan would have had no means
to exert any pressure whatsoever on the voters nor
would it have chosen to draw overwhelming
international censure for disrupting the plebiscite
process. If there has been popular support in
Kashmir for joining India, the dispute over Kashmir
would have lasted for a year or so at most. It would
have dissolved long ago.
Let us here contrast the cases of
Hyderabad, Junagarh and Goa - three areas that India
annexed through what it called (a phrase reminiscent
of Nazi ideology) "police action". In none of these
cases did India have to bring in the resounding
names of a local political organization or leader to
justify the annexations. Yet, leader or no leader,
organization or no organization, the overwhelming
majority of the people in these areas wished to be
part of the Indian nation and, though a certain
arrogance on India's part raised some eyebrows,
world opinion recognized the fact and the
incorporation of the these areas in India met with
international acquiescence. Pakistan's complaints in
the cases of Hyderabad and Junagarh and the protest
of the United States over the invasion of Goa were
storms of the teacup variety; the controversies
subsided in short time.
The presentation by India of Sheikh
Abdullah and his National Conference as the
embodiment of mass approval for the entry of Indian
troops into Kashmir has itself provided an eloquent
commentary on the nature of India's claim to
Kashmir. The same Sheikh Abdullah was dismissed as
Prime Minister in 1953, kept in prison for years and
charged with treason because he insisted on complete
autonomy for the State and stressed repeatedly that
the accession was provisional. At one time, in 1957,
he sent a hand-written letter from jail t the
Security Council denouncing the Indian position. A
vocal section of the National Conference formed what
was called the Plebiscite Front, which demanded that
the issue of accession be referred to the people's
vote. The fact that later in 1975 Sheikh Abdullah
turned a somersault and, signing on the dotted line,
became Chief Minister again is an indicator more of
his personal character than of the strength or
consistency of India's political position in
Kashmir.
A glimpse into Kashmir's political
history might be apposite here. Kashmir was unique
among all the Princely States of India in organizing
a political movement on its own in opposition to
autocracy.
This took the form of a mass agitation
in 1931, which a year later, gave birth to the
Muslim Conference. Sheikh Abdullah was undoubtedly
the hero the agitation and no one equaled his appeal
to huge Kashmiri gatherings. He was at the peak of
his popularity from 1931 to 1933. As early as 1934,
however, a streak of opportunism in him became
visible when he stayed away from an agitation
directed by his more steadfast and less theatrical
colleague, Ghulam Abbas, against the limitation of
the franchise for the legislative assembly and the
restriction of the assembly's powers. From that time
onwards, although he retained his unsurpassed
capacity to arouse the emotions of the masses, his
political position zigzagged and his popularity
began to wane. When he succeeded in converting the
Muslim Conference into the National Conference, he
attracted the patronage of Jawaharlal Nehru,
enlisted the support of the great propaganda machine
run by the Indian Congress, gained some glitter in
non-Kashmiri eyes but lost the cohesiveness of his
Kashmiri following. Within a short period, the
co-architect of the National Conference, Prem Nath
Bazaz (Hindu) and the former President of Muslim
Conference - both expressed disillusionment about
Abdullah's integrity. The former established his own
party and the latter revived the Muslim Conference.
Non-Muslims regarded Abdullah as a Muslim chauvinist
(what is called 'communalist' in India) and Muslims
suspected that he had struck some kind of a deal
with the Dogra regime despite its practice of open
discrimination against the Muslims. Both were right
not because Abdullah was taking the middle position
but because he easily swung from one extreme to the
other.
Two other things affected Abdullah's
public standing. First, he betrayed pronounced
fascist proclivities and frequently resorted to
strong-arm methods in bullying his opponents. This
became a scandal in the late 1930s and the early
1940s; he had to suffer physical reprisal for his
hooliganism in places like Poonch and Rajauri.
Second, while still employing his emotive rhetoric,
he veered more and more towards cooperation with the
Maharaja's autocratic regime. As if this was not
enough, he broke the pledge he had made that he
would not side with the Indian Congress against the
Muslim League (the two major parties in British
India).
In an attempt to recapture his
following among Muslims, especially the
intelligentsia, Abdullah joined prominently in the
jubilant reception accorded to M.A. Jinnah on his
visit to Kashmir in 1944. Jinnah tried to reconcile
Abdullah and Abbas and put the question squarely to
Abdullah. "How much significant support have you
obtained from Hindus for the objectives of the
National Conference?" When Abdullah could cite only
the names of a few individuals, Jinnah queried, "The
what is the point of dividing the Muslims into two
camps, the Muslim Conference and the National
Conference?" Abdullah thought he had a answer to
that. "But the National Conference is in reality the
Muslim Conference in a better guise," he said. Came
back the forthright rebuke, "That means you are
committing a fraud on Hindus." This left Abdullah
only with one course: vituperative speeches against
"outsiders" like Jinnah. (In private remarks, he,
however, disowned the speeches.) This was the nadir
of Abdullah's position in Kashmir.
When he felt the ground slipping from
under his feet, Abdullah sought the counsel of a
group of very able communists from Lahore. They
drafted the manifesto called 'New Kashmir' for him
in 1944 and then produced a most impressive
declaration about the sale deed miscalled the Treaty
of Amritsar to which the Maharaja owed his title to
Kashmir. Armed with this and a stirring slogan,
Abdullah launched his 'Quit Kashmir' campaign
against the Maharaja in May 1946. He was jailed on a
charge of sedition and Jawaharlal Nehru felt
impelled to enter the fray. Considerable publicity
was generated as a result, but apart from small
groups (mostly the cadres of the National
Conference, better-trained than those of the Muslim
Conference) the masses, both Muslim and Hindu, stood
aloof. The Maharaja demonstrated his triumph by
arranging to be driven in a spectacular motorcade
through the main street of Srinagar on his birthday
in September. It was not the respect and sympathy
for the Maharaja on the part of the great Muslim
majority but the distrust of Sheikh Abdullah that
made this possible. The wrong medium had eclipsed
the right message.
After the partition of British India in
August 1947, Abdullah wrote letters to his friends
from jail recommending Kashmir's accession to India,
making sure that the letters would be seen by the
Maharaja's officials. This reinforced the assurances
that the Maharaja had received from the leaders of
the Indian Congress, including Mohandas Gandhi, that
Abdullah would help him to join India. Abdullah was
granted "royal clemency" and released from jail in
return for colluding with the Maharaja in
maneuvering accession to India. He flew immediately
to Delhi to confer with the Indian leaders, as did
the Maharaja's courtiers. Abbas, the leader of the
Muslim Conference, languished in jail.
At the time, Abdullah's constituency in
Kashmir, in the estimate of impartial observers, had
shrunk to a few districts of Srinagar. That, in
essence, was the reality of the popular backing for
India establishing sovereignty over Kashmir. The
estimate, of course, was not shared by Jawaharlal
Nehru, nor perhaps by Gandhi, but when doubts began
to grow in Delhi whether Abdullah's presumed
popularity would swing the vote in India's favor,
did India begin to wriggle out of its pledge to a
plebiscite. The doubts about success turned to
certainty of defeat when Abdullah, as mentioned
earlier, had to be ousted as Prime Minister and
jailed in 1953. From that time, Indian policy was
set dead against any ascertainment of the wishes of
the people of Kashmir on the accession issue. Nehru
did make a promise to the Prime Minister of Pakistan
to cooperate in the holding of a plebiscite by April
1954 but, as the ensuing correspondence between the
two showed, it was done only to palliate an aroused
public opinion in both Kashmir and Pakistan.
How can the claim that the Maharaja's act of
accession to India was offensive to popular
sentiment be reconciled with the fact, hardly
questioned, that there was no mass uprising in the
Vale of Kashmir against the entry of Indian forces
into Kashmir in 1947?
No invasion of one country by another
encounters an immediate insurrection. There were no
popular uprisings in the capitals of Western Europe
when they witnessed the victorious march of the Nazi
troops. Nor did the Soviet forces when they were
triumphant, face mass upheavals and defiance in
Eastern Europe. There was no immediate revolt in
Kabul against the Soviet invasion of Afghanistan.
Resistance against foreign occupation requires
organization and takes time to develop.
If in Kashmir, India did succeed in
dampening the sentiment of revolt for a number of
years by co-opting the section of the people
represented by the National Conference which was
joined by a whole lot to careerists, it nor more
belies the claim of popular loathing of Indian
occupation than the existence of the Vichy regime
belied French resistance to Nazi occupation. If
Sheikh Abdullah who in 1947 supported India taking
over Kashmir by force had been at one time the most
popular leader in Kashmir, Marshall Petain, who
capitulated before Hitler and cooperated with him,
had been the most respected war hero of France. All
occupation regimes find collaborationists in the
occupied countries; there are Quislings and Lavals
and Najibs in every society. Kashmir could not be in
exception.
There were some added circumstances in Kashmir.
First, simultaneously with sending its
troops into Kashmir, India made a solemn declaration
that the accession of Kashmir was provisional and
subject to the people's verdict. She gave this
solemn assurance to the people of Kashmir, to
Pakistan, to Britain and to "the whole world", in
Jawaharlal Nehru's words. This created the
reasonable expectation in the mass mind that India's
annexation of Kashmir was a temporary affair and
would be reversed by a peaceful process. Arzi Ilhaq
(temporary accession) became a common expression. A
mass uprising seemed unnecessary.
Second, at the time of the entry of
Indian troops, the leaders of the Muslim Conference
were in jail or in exile from the Vale. The
organizing force of resistance was dispersed.
Third, fighting ensued between the
Indian army and the Azad Kashmir forces in extensive
parts of the State. Though vastly outnumbered, ill
equipped and poorly organized, and hence unable to
reach Srinagar and Jammu, the two capitals, the Azad
forces did hold some ground and, even before
Pakistan provided them regular military support,
they had prevented India from overrunning the whole
State. Newspapers in India itself at the time
reported a number of incidents of a few guerrillas
holding at bay large companies of Indian troops with
all their armor and air support. This along with the
proceedings of the Security Council and the dispatch
of a United Nations Commission in 1948, created the
kind of expectancy that inhibits a people's revolt.
Does not the experience of the India-Pakistan war in
1965 confirm Kashmiri acceptance of Indian rule
inasmuch as the insurgency expected by Pakistan did
not materialize?
First, it is open to question who in
Pakistan count on an insurgency in the Vale of
Kashmir at the time. There are different versions,
none wholly plausible. However, if anyone in
authority did, his thinking must have been at the
adolescent level. He must have thought that
insurgencies are made like instant coffee; he must
have lacked education in rebellions. Uprisings, as
distinguished from acts of sabotage, rarely go with
inter-state wars; when they do, they end in
disaster. Of the first of these two lessons, the
Vietnam War provides a good illustration: throughout
that war, no uprising took place in Saigon. Of the
second, the genuine Shiite uprising in Iraq at the
time of the Persian Gulf War in 1991 has been
another graphic example. Even when Saddam Hussein's
retreating troops, waving white flags, were being
bulldozed with the earth, he still had the means to
reduce the rebellion to cinders.
If a state at war defeated but not yet admitting
defeat, does not make a suitable target for
rebellion, far less does an undefeated state. Indian
troops would have to be forced by Pakistan's
military offensive to begin a retreat from Karachi
before a civilian uprising against the remnants of
Indian authority and welcoming the entry of
Pakistani forces could take place. This had nothing
to do with passivity or docility in the Kashmiri
character - that myth has been shattered now. it has
everything to do with the dynamism of popular
uprisings. They need their own impulse and are
sustained by their own strategy; they abort if they
lack native political guidance. To ignore this
principle is to plan for failure.
Second, the situation in Kashmir in
1964-65 has been misrepresented in both Pakistan and
India for opposite psychological reasons. India
feels the compulsion to prove Kashmiri acquiescence
in Indian occupation, Pakistan to account for the
miscarriage of its plans. Neither acknowledges the
fact that Kashmiris did rise on their own against
Indian rule in 1964. When Jawaharlal Nehru sent a
senior intelligence official who was his confidant
to Srinagar to make a report on the situation, the
man returned and candidly said to him, "Prime
Minister, from what I have seen, Kashmir is not a
part of India." Even Lal Bahadur Shastri, who had
not yet become Prime Minister, remarked
significantly after his visit to Kashmir that the
situation would have to be resolved ultimately in
accordance with the people's wishes. The agitation
was intelligently directed by the indigenous
Committee of Action set up in Srinagar. There is
evidence that Nehru had accepted the need "radical
rethinking" about India's policy with regard to both
Kashmir and Pakistan. Nehru's death at that delicate
point, Sheikh Abdullah's trip abroad during which he
met some world leaders, including Zhou En-Lai, his
consequent re-imprisonment, Shastri's political
inferiority when stepping into Nehru's shoes, the
frequent military probing and exchanges across the
Ceasefire Line, the worsening of Indian forces by
Pakistani troops in the Rann of Kutch (distant from
Kashmir), the crescendo of belligerency on both
sides, and finally the entry of commandos from Azad
Kashmir and Pakistan uncoordinated with a native
plan for a guerrilla campaign - all tangled the plot
and arrested its denouement.
Nevertheless, besides rendering help to
commandos wherever physically possible in August
1965, Kashmiris hardly showed themselves as resigned
to Indian occupation since the world media had their
attention riveted on the fighting between India and
Pakistan, non-military happenings in the Vale of
Kashmir itself went rather unnoticed. Still, a
number of major western newspapers, including the
New York Times carried stories about what was called
"the children's revolt": young boys and girls
showing defiance of Indian authority. It was then
that the slogan (unacceptably abusive but betraying
the people's exasperation) "Indian dogs, go home"
gained currency in Srinagar and was blazoned by the
letters I.D.G.O. painted on walls and pavements.
There was not - there could not be, as we have seen
- an organized revolt. Nor was there the quiescence
that Indians like to believe and Pakistanis prefer
to complain about.
Since Kashmir, or at least the larger and better
part of it, has been an Indian state for nearly half
a century now, is it not unrealistic to suppose that
it can be wrested from the Indian Union?
It is no more unrealistic that it was
to expect Algeria to cease to be a department of
France, Namibia to be detached from South Africa or
Estonia or Lithuania to become independent of the
Soviet Union. France had ruled Algeria, South Africa
had held Namibia and the Soviet Union had annexed
Estonia and Lithuania for longer periods than the
Indian Union has occupied Kashmir. What belongs to a
State and cannot be pried loose from it is what
feels itself to be part of that State, some
discontent notwithstanding. Kashmir never felt
itself to be part of India before 1947 and feels
even less so after its forcible seizure by the
Indian troops. The de-annexation process is
inevitable in the post-colonial age. The only
question is whether it is accomplished by armed
struggle, resulting in a spiral of violence and
counter-violence or through negotiation and/or other
means of peaceful settlement. The choice always lies
with the occupying power. Until now, India has
pre-empted negotiation by its adamant assertion that
the status of Kashmir is not negotiable.
Is this adamancy an insuperable
obstacle, considering that it is backed by the
military power of the Indian Union, one of the most
formidable in the world? The question invites
reflection. Even as recently as the mid-1980s, the
idea of the liberation of Estonia and Lithuania was
regarded as a pipe dream. So was the institution of
majority rule in South Africa. The military and
technological arsenal at the disposal of the Soviet
Union was mightier than what the Indian Union
possesses. The same could be said of the apartheid
regime proportionately in the context of the South
African subcontinent. Yet military power did not
bring political strength to the Soviet Union nor
immunize South African because the rest of the world
did not bend its knee to it. It is the deference
down by the West to India's military power that
reinforces India's obduracy. It also weakens the
liberal section of Indian opinion that would prefer
a sensible and human policy with respect to Kashmir.
Unwittingly, the West contributes to the depletion
of the already small but the most promising resource
in India's political society, the resource of
self-criticism, and to the encouragement of that
sanctimoniousness which the more thoughtful Indians
regard as a bane of their country's attitudes in
international affairs.
We have spoken of countries that were
liberated from the Soviet Union. Since their release
was followed immediately by the collapse of the
Soviet Union itself, the suggestion might seem to
lurk that Kashmir's freedom is envisaged in the
prospective context of the disintegration of the
Indian Union. Quite the contrary. It has been
brought out elsewhere in these pages that the
liberation of Kashmir would strengthen the cohesion
and solidity of the Indian Union. It would cure
India of what was called "a frontier sore" by Lord
Ismay who advised Lord Mountbatten, one of the men
chiefly responsible for the invasion of Kashmir by
India.
On the proposal of independence - of the State or
part of it - as a possible solution of the problem,
is not Pakistan's position identical to India's
inasmuch as "both reject it emphatically?
The impression is not groundless but,
on a more serious examination, it turns out to be
superficial.
For some years now, Pakistan's leaders
have not displayed qualities or care and sensitivity
in certain statements they have made on Kashmir. A
couple of these statements, blithely citing the
Indian Independence Act passed by the British
Parliament in 1947, directly contradict the position
clarified by the Founder of Pakistan himself who,
besides being the redoubtable constitutionalist that
he was, had vetted the Act before it was adopted
(the Indian Congress leaders had done the same). In
his characteristically straightforward manner, he
published his view that the British government or
Parliament had "no power or sanction" to restrict
the freedom of the Princely States to remain
independent, if they so desired. It must be noted,
in passing, that he spoke of 'States' not of
'Princes'. The viability of independence, of course,
was a separate issue; it could not be judged by
legal criteria and it could not be regarded as the
same in all cases.
But occasional crude utterances by
Pakistan's present-day spokesmen do not affect the
validity of Pakistan's traditional position in the
Kashmir dispute. The dispute is on the agenda of the
world organization as the India-Pakistan question.
Pakistan cannot in fairness be expected to
relinquish its position as a party to the dispute
and assume instead the lesser role of a supporter of
Kashmir in the India-Kashmir conflict. The military
occupation of Kashmir by India violates not only
Kashmir's self-determination but of Pakistan's as
well. For Pakistan came into being as the successor
state of the British Indian empire comprising
Muslim-majority areas as India did comprising
Hindu-majority areas. This happened on the basis of
a tripartite agreement arrived at by Britain, the
Indian Congress and the Muslim League. It followed
from the agreement that, unless the State of Jammu
and Kashmir chose to remain independent, its
Muslim-majority area would be incorporated in
Pakistan exactly as the Muslim-majority area of the
province of Punjab was. In fairness and in
accordance with the principle of the settlement to
which both the Indian Union and Pakistan owe their
independence, there were only two options for
Muslim-majority Kashmir: either to remain
independent or to join Pakistan.
The pre-emption of
both these options by India's military action had
made Pakistan as much the wronged, aggrieved party
as Kashmir itself. In Pakistan's eyes, Kashmir is
not just another country whose self-determination is
to be promoted in the way Pakistan championed the
cause of the freedom of Morocco or Tunisia (in the
early 1950s), for example, or of other peoples under
colonial rule. Kashmir is potentially a part of
Pakistan and its society is intertwined with
Pakistan's. If matters had been allowed to take a
straight course in 1947, Kashmir would have been one
of the provinces of Pakistan (the sentiment for
Kashmir's independence at that time was very weak).
This is not Pakistan's self-view. Not to speak of
all impartial observers, even Lord Mountbatten, who
played a crucial role in engineering India's
annexation of Kashmir, has conceded that but for a
certain "basic mistake" by Pakistan, "Kashmir might
well have eventually acceded to Pakistan, either
with or without a plebiscite or might conceivably
have been peacefully partitioned between India an
Pakistan". The "basic mistake" he mentions is
questionable but even if it were admitted, neither
Pakistan nor Kashmir would merit permanent
punishment for it in the form of a an unnatural
disposition of the State. Mountbatten's statement
recognizes Kashmir's place in Pakistan.
Seen in this light, Pakistan's position
would be changed radically were it to come forward
as a proponent of independence for Kashmir. It would
imply that Pakistan is gratuitously demoting its
locus standi and renouncing a claim, which has been
made stronger by Pakistan's unquestioned willingness
to submit it to the verdict of the people of Kashmir
impartially ascertained. Pakistan is acting within
its rights and conforming to its obligation in
disallowing that kind of a stance for itself.
However, there is a marked difference
between not becoming a proponent of Kashmir's
independence and becoming an opponent of it. The
former is consistent with Pakistan's involvement and
interest in the dispute; the latter is entailed by
India's standpoint. One would expect persons charged
with responsibility for handling delicate issues of
law or diplomacy to perceive the difference.
Let us thrash out the question a
little. India is asserting a primordial or
proprietary right with respect to Kashmir; its
rejection of the proposition of independence for
Kashmir follows as logically as does its irate
reaction to the proposal of a referendum or
plebiscite to determine a solution. Pakistan, in
contrast, is asserting a claim to Kashmir which,
though in justice immeasurably superior to India's,
Pakistan is not holding to be self-validated;
Pakistan is demanding that both claims - its own and
India's - be referred to the democratic decision of
the people of Kashmir. The demand was originally
accepted by India and the common ground of both
parties was the basis of the plan of settlement laid
down in the resolutions of the United Nations. This
aspect of the issue has been fully brought out in
the voluminous debates at the United Nations. What
still needs to be made clear is that neither
Pakistan's demand nor its original acceptance by
India nor its endorsement by the United Nations
encompasses the whole area of the right involved.
For overriding the contesting claims of India and
Pakistan and the putative right of one or the other
is the right of the people of Kashmir to decide the
issue according to their own will. That the two
claims of India and Pakistan be submitted to the
people of Kashmir makes them subjects of legitimate
consideration but it does not exclude the exercise
of a different option by the people of Kashmir. The
exclusion is inherent in India's position, not in
Pakistan's. Enlightened opinion in Pakistan fully
appreciates the point and is far ahead of the
country's official spokesmen.
As "Kashmir has been historically a part of India",
should it not remain a state within the Indian
Union?
The statement that "Kashmir has been
historically a part of India" is true precisely in
the same sense as the statement, for example, that
Belgium or Norway has been historically a part of
Europe. All through the ages, the word "India" has
been like Europe, the name of a region, a
subcontinent, not of a state. It has been a
geographical, not a political, term. The great
empires of the past - the Maurya (3rd century BC),
the Mughal (16th to 18th century) - which more or
less unified the subcontinent did not have uniform
boundaries; the included variously what today are
the states of Afghanistan, Pakistan, India, Nepal,
Bangladesh and Myanmar, as well as Kashmir. Even
under the British, "India" was not a compact
political entity: there was what was called "British
India" and "Indian or Princely India".
In the sense currently employed, India
is as much a new state as Pakistan; both were
established in August 1947; both came into existence
on the basis of the agreed two-fold principle that
(a) Hindu-majority areas in British India would
constitute India and Muslim-majority areas form
Pakistan and (b) the territories not directly
administered by British (i.e. Princely India) would
be incorporated in one of the other (i.e. India or
Pakistan) according to geographical contiguity and
the composition of the population or they could
remain independent, if their people so wished.
Kashmir was the largest of the territories not
directly ruled by the British. It is a
Muslim-majority area, contiguous to Pakistan,
sharing the largest part of its border with
Pakistan. Its territorial highways led into Pakistan
or Central Asia; its rivers flow into Pakistan; its
commerce was conducted through what is now Pakistan;
from 14th century onwards, it drew its cultural
stimulus exactly from the same sources as Pakistan.
Politically, it has maintained an independent,
sovereign existence through the preponderant part of
its history.
From whatever standpoint one looks at
it - geographical, historical, cultural or economic
- Kashmir's inclusion in India is as irrational as
it has been shown to be contrary to its popular
will. The mere circumstance that the state, which
has its capital in Delhi, appropriated the name of a
region to itself - a gigantic advertising gimmick -
does not provide it with an historical claim or
entitlement to Kashmir. Incidentally, India's native
name inscribed in its constitution is Bharat but it
fights shy of using that expression; indeed, it has
uses a word which does not exist in any of its dozen
main languages. it is the only country in the world
which has borrowed its own name from others. As
historically "India" meant the land of the Indus, it
is Pakistan that has a title to the description, not
the state that has arrogated it.
Is the uprising in Kashmir is inspired by religious
extremism and is fundamentalist in nature?
It is not; the allegation is belied by the beginning
and the course of the uprising. The present uprising
began as a peaceful, secular movement. What could be
less fundamentalist than that in January 1990,
almost the entire population of Srinagar came out on
the streets and marched to the office of the United
Nations Military Observers' Group to present a
petition for the fulfillment of the pledge given to
the Kashmiris by the United Nations that they would
be enabled to determine their future through a free
vote under impartial, international supervision?
All movements of resistance against
foreign occupation which embrace a whole society
draw in all its elements - the extremists, religious
or secular, at one end and the criminal-minded, at
the other, with sincere freedom fighters in the
middle, constituting the bulk. The resistance in
France against Nazi occupation had the active
participation of communists; could it on that
account be regarded as a communist movement? No
insurgency - particularly against a regime, which
has become incapable of civilized administration -
remains uncontaminated by extremism, crime of
corruption: this had been historically true even in
the most sophisticated societies. Such
contamination, however, does not affect the purity
of its object viz. liberation from an alien, brutal
regime; restoration of human rights and assertion of
the popular will. This holds in the case of Kashmir
as it would in all similar cases.
Speaking of fundamentalism, there is a
marked difference between Pakistan and India. The
extremist religious forces in Pakistan have never
been able to muster popular electoral support and
they operate to the extent that they do and meet
with resistance within Muslim society itself. In
India, in contrast, the fundamentalist frenzy is
directed against the Muslim population. The
barbarities inflicted on the Muslims of Kashmir are
to a great extent actuated by Hindu hatred against
Muslims. Communal hatred and intolerance. No attempt
is underway to establish a theocratic state in
Kashmir. However, it is only natural that, under the
unbearable stress of the kind faced by Kashmiris,
people should try to draw spiritual strength and
sustenance from the faith they follow. A powerful
ingredient of the Kashmiri psyche in both normalcy
and crisis is the consciousness of their Islamic
affiliation. But the fact is writ large on Kashmir's
history since the 14th century that this
consciousness has harmonized with amity between
Muslims and Hindus.
The mass exodus of Kashmiri Pandits
from the Vale of Kashmir has been cited as a glaring
example of the extremism of the Resistance movement.
Any impartial investigation will show that the
exodus was encouraged and facilitated by the
Government of India, represented at the time in the
person of the notorious Governor, Jagmohan, to clear
the field for the actions that had been planned
against the Kashmiri Muslims. The total breakdown of
the administration in Kashmir was also an important
contributing factor. When there is anarchy, people
flee. In any uprising, those who collaborate with
the oppressors become targets. However, more
Kashmiri Muslims have been targeted than Pandits. It
is not a question of religion: it is a question of
what side you are on? The popular uprising or the
imposed regime?
Moreover, if the international
community continues to look the other way while
Kashmir burns and a repulsive military machine
massacres its people, then desperation will set in.
In such an environment, fundamentalism becomes the
face of frustration. Extreme repression, accompanied
by little relief and meager sympathy from the
supporters of human freedom, can so traumatize a
people as to pervert their psychology and disfigure
their movement.
India's uses the pejorative term "fundamentalist" in
order to exploit the fear and prejudice associated
with this phenomenon, real or perceived, and thus
undermine support for the cause of Kashmir's
freedom. India's use of the label "terrorist" is
similarly motivated. The aim is to divert the
sympathy and compassion that would be felt at the
plight of the Kashmiri people to concerns felt in
other contexts.
Is the movement in Kashmir a separatist or
secessionist movement?
To cover the crimes committed by its
army and paramilitary forces in Kashmir, India
describes the uprising in Kashmir as "secessionist"
or "separatist". How can a people secede from what
they never acceded to and separate from what they
never joined? The entire State is a disputed
territory and recognized as such by the United
Nations. Kashmiris do not see themselves as citizens
of India. The Indian claim that Kashmir is an
integral part of the Indian Union is unilateral,
unrecognized and untenable in law and logic. The
future of Kashmir remains to be determined as is
evident from all pronouncements made by the United
Nations, with the former Soviet Union as the only
dissident.
Is not Pakistan-backed terrorism responsible for the
current situation in Kashmir? Would there not be
peace and tranquility in the State was this outside
interference to cease?
A look at the situation in Kashmir
gives a firm negative answer. It is, of course, true
that the people and government of Pakistan have
extended a degree of support, some material, most of
it moral, to the struggle in Kashmir. But there is
no question that the Resistance is essentially
indigenous. Were Pakistan, for instance, to get
completely out of the picture, the movement would
still continue, however, bereft and straitened.
Actually, it is grossly unfair and unrealistic to
expect Pakistan to stand aside when the people of
Kashmir are engaged in a struggle for which Pakistan
and its people have made enormous sacrifices since
1947, and with which they have heartfelt sympathy.
Kashmir and Pakistan are intertwined in such a
variety of ways that it is not possible for events
in the one not to have strong repercussions in the
other.
Rendering aid to Kashmiris for their
freedom from despotic rule has been a recurrent
phenomenon in the areas, which now constitute
Pakistan. It began as far back as 1835, more than a
hundred years before the birth of Pakistan. In
1933-34, as many as 20,000 people from the
Sialkot-Lahore area were jailed by the British
Indian government to prevent them from marching into
Kashmir to agitate against the ruling Hindu prince's
repression. In 1947, when there were scattered and
large-scale uprisings against the despot in many
parts of the State, people from Pakistan felt
compelled by what they considered their moral and
political duty join ranks with the freedom fighters
in Kashmir. It happened again in 1965. It is
understandable and consistent with history if it
happened (though to a much reduced extent) following
the brutal and continuing Indian onslaught against
the resurgent movement in Kashmir that we now date
from 1989.
Pakistan is an irremovable factor in the Kashmir
equation. It has fought two wars to secure the right
of self-determination for Kashmiris. The first war
in 1947-48 led to the resolutions of the United
Nations Commission for India and Pakistan (UNCIP),
which called for a plebiscite in the State to
ascertain the people's wishes. The second in 1965
was brought to an end with the resolution of the UN
Security Council stating the "decision" of the
Council to consider after the end of hostilities
"what steps should be taken to assist towards a
settlement of the political problem underlying the
conflict", namely Kashmir. Even the Simla Agreement
in 1971 called for a "final settlement of Jammu and
Kashmir", though the meeting between the President
of Pakistan and the Prime Minister of India which
produced the accord, was not convened to deal with
Kashmir but with the aftermath of the dismemberment
of Pakistan through Indian military intervention in
East Pakistan. None of these undertakings has been
fulfilled. Pakistan cannot be expected to force
amnesia on itself and consign all this to oblivion.
After the Soviet invasion of
Afghanistan, the Afghan resistance sought help from
volunteers in many Muslim countries. A number of
Kashmiri young men also joined the combat, which
they viewed as a just and even holy war against an
invader. When the Soviet Union decided to pull out
of Afghanistan, having failed to overcome the
popular armed struggle against the communist-backed
regime in Kabul, the Kashmiri youth, like their
other foreign comrades, had to leave Afghanistan and
return home. By then they were battle-hardened and
imbued with the zeal to carry on a similar fight
against Indian occupation. They were also confident
that if a superpower like the Soviet Union could be
humbled by disorganized but dedicated Afghan
fighters, surely they could also combat the
occupation of their land by the India Union.
The fall of communism is a watershed in
history and its impact on developing countries has
been especially powerful. The message that went
forth to societies as diverse as those of Africa and
Eastern Europe was that any system that owed its
hold solely to military power and its authority to
force and coercion could not endure. The Kashmiris,
it must be repeated, never asked for the annexation
of their land by India. So the great wind of freedom
blowing across the world also swept Kashmir and its
youth, leading eventually to the heroic upsurge
witnessed in 1989.
But was not the accession of Kashmir to India legal
and also formally endorsed by a Constituent Assembly
in 1957? Is not the entire State, therefore, an
integral part of India?
The ostensible accession of Kashmir to
India is a fiction entrenched in the Indian
position. The fact that the act was performed by a
feudal ruler who had fled his capital in the face of
popular revolt is well established in the official
record of the dispute. But the facts of the
elaborate conspiracy are no so well known but they
are being exposed by the painstaking historical
research conducted by such unimpeachable authorities
as the Oxford historian, Alistair Lamb. The details
would need a lengthy narration. Let the following
facts, all beyond contradiction, therefore suffice:
1. For months prior to the so-called
accession, the Maharaja (the feudal despot) was in
contact not only with the Indian leaders but also
with other Maharajas who had brought about the mass
killings and exodus of their Muslim subjects and
acceded to India. Ten weeks earlier, he had
dismissed his Kashmiri Pandit Prime Minister who had
counseled against a move hostile to Pakistan. The
Maharaja had brought in troops and murderous gangs
from outside to overawe his Muslim subjects (the
majority of the people) and crush any movement for
accession to Pakistan.
2. At the moment that he offered to
accede to India, his authority over the bulk of the
State had crumbled.
3. India flew in its troops to restore
his authority even before he had signed and
delivered the instrument of accession. His
accompanying letter was composed in Delhi.
4. An erstwhile Kashmiri popular
leader, Sheikh Muhammad Abdullah, who had become a
cohort of Indian leaders, was installed in office
for his support of the Maharaja's accession. But
this same person, when he insisted that the
accession was provisional and depended on a
plebiscite, was dismissed and put in jail in 1953.
He languished in prison for about thirteen years. It
was his followers who mainly formed what was called
the Plebiscite Front. (He was reinstated when he was
a tired, old man and had given up the fight.)
5. The Constituent Assembly was
convened without a poll in Kashmir itself.
Seventy-three out of 75 candidates were declared to
have been elected unopposed.
6. Before this Assembly was convened,
India assured the Security Council that the Assembly
would not "come in the way" of the holding of a
plebiscite under the auspices of the United Nations.
One representative of India (an eminent jurist.
Benegal Rao, later a judge of the International
Court of Justice at the Hague) in his formal
statement before the Council termed the State's
accession to India as "tentative", pending a
plebiscite.
7. The Security Council adopted the
resolution of 30 March 1951 that any action of the
so-called Constituent Assembly "would not constitute
a disposition of the State" in accordance with the
principles enunciated in the Council's earlier
resolutions and accepted by both India and Pakistan
- namely the synchronized withdrawal of the forces
of both sides preparatory to the plebiscite and the
holding of the plebiscite under the control and
supervision of the United Nations.
8. When in defiance of the Security
Council and in violation of the international
argument embodied in the resolutions of the United
Nations Commission for India and Pakistan (UNCIP),
India in November 1956 nevertheless got the Assembly
to declare Kashmir as a part of India, the Security
Council adopted the resolution of 24 March 1957,
again reminding the parties that "the final
disposition of the state of Jammu and Kashmir will
be made in accordance with the will of the people
expressed through the democratic method of a free
and impartial plebiscite conducted under the
auspices of the United Nations". It also reiterated
its earlier declaration that, "any action that the
Assembly may have taken or might attempt to take to
determine the future shape and affiliation of the
entire State or any part thereof, or action by the
parties concerned in support of any such action by
the Assembly, would not constitute a disposition of
the State in accordance with the above principle."
If India were as certain of the legal
strength of its claim as it professes to be, would
it not agree to the whole question being examined by
the World Court? A process lasting a few months
would vindicate its position and bring it resounding
victory. But India knows that an impartial
investigation would be fatal to its claim. Hence the
loud, indignant insistence on "sovereignty". Said an
experienced lawyer to his young apprentice: "If you
are weak in law, stress the facts; if you are weak
in facts, stress the law; but if you are weak in
both facts and law, give them hell!" The way India
has been giving hell to all its critics would please
that lawyer.
To recapitulate, the question needs to be faced: at
what point of time and by what justifiable means did
Kashmir become a part of India? By the Maharaja's
accession? But India itself acknowledges that the
accession was subject to plebiscite under
international auspices. By the decision of the
Constituent Assembly? But India assured the Security
Council that the decision would not prejudge the
plebiscite and come in its way. By the sheer passage
of time? But, despite the lapse of decades,
Kashmiris have shown themselves that they have not
reconciled to Indian occupation and rule. By the
elections held periodically in the Indian-occupied
area? But these elections are known to have been
rigged and their outcome is totally disowned by the
people of Kashmir, as the mass uprising amply bears
out.
Are not the decades-old resolutions of the United
Nations obsolete?
Even if those resolutions had never
been adopted, the principle which the articulate -
the consent of the people - would have to be
summoned to provide the basis, the rationale, the
framework of a negotiated settlement. There is no
alternative to popular will except force and fraud.
The right of self-determination does not lapse, nor
the passage of time invalidate agreements, much less
release a state from the international obligations
it has solemnly accepted. The Indian argument to the
contrary subverts the foundations of a viable order
of international relations. Without sanctity of
agreements and treaties, order would be turned into
anarchy. India's own founding father Jawaharlal
Nehru stated in 1952. "Kashmir is not the property
of India or Pakistan. It belongs to the Kashmiri
people. When Kashmir acceded to India, we made it
clear to Kashmiri people that we would abide by the
verdict of their plebiscite, and if they tell us to
walk out, I would have no hesitation in quitting
Kashmir. We have taken the issue to the United
Nations and given our word of honor for a peaceful
solution. As a great nation, we cannot go back on
it."
Would not a change in the status of Kashmir destroy
India's secularism and place its 120 million Muslim
population in grave jeopardy?
As Zulfikar Ali Bhutto said at the
United Nations, "Forcible annexation of Jammu and
Kashmir by India is not a guarantee of Indian
secularism, democracy or territorial integrity."
Communal peace is not a new concern in India. Did it
not exist when India committed itself to the holding
of a plebiscite in Kashmir? How can the security of
India Muslims be made dependent on the occupation of
Kashmir by force, if blackmail is not be
countenanced? Secularism should be a function of
India's own history, the composition of its
population, its diversified cultural heritage, as
well as its international contacts. If India's
Mughal heritage and its living reminders such as the
Red Fort in Delhi and the Tag Mahal in Agra do not
constitute the symbol, and if the presence in it of
the world's largest religious minority does not
provide substance of India's composite personality,
and if they are unable to avert recurrent religious
pogroms, how will the forcible occupation of a
Muslim majority area such as Kashmir achieve the
goal? The total number of Kashmiri Muslims in
Indian-occupied Kashmir is around 7.5 million, while
the total Muslim population in the Indian Union is
120 million. How can the captivity of the less than
five percent in a defined areas assure the safety of
the remaining 95 percent scattered all over the
country?
There were years when because of a
state of relative quiescence it was assumed by some
that the Muslims of Kashmir were reconciled to their
place in India or were at least taking part in
Indian political life. Did attacks on Indian Muslims
cease during those periods in the rest of India?
They did not; on the contrary, they persisted as
before. Nor has the savage repression of the
Kashmiri Muslims since 1989, characterized by
cold-blooded killings, rape, arson, arbitrary
arrests, torture and maiming of human beings
satisfied the hate-mongering elements and lessened
their frenzy against the larger body of Indian
Muslims.
The destruction of the 15th century
Babri Mosque in 1991 is an example. If the proven
and well-demonstrated loyalty of Indian Muslims
since independence does not guarantee their security
and well being in India, how will the coerced
allegiance of the Kashmiri Muslims do that? India is
the only state in the world that demands a price
from others for the safety of its own citizens. And
with a posture of self-righteousness, to boot.
Will not a change in the status of Kashmir such as
its accession to Pakistan or independence lead to
the disintegration of the Indian Union?
Nobody has answered this better than
the respected Indian statesman, the late Jayaprakash
Narayan:
"Few things have been said in the
course of this controversy more silly than this one.
The assumption behind the argument is that the
states of India are held together by force and not
by a sentiment of a common nationality. It is an
assumption that makes a mockery of the Indian nation
and a tyrant of the Indian state."
Contrary to the impression that has
been created by the defenders of the status quo in
Kashmir, it is the non-settlement of the Kashmir
dispute, rather than its settlement, that threatens
the territorial integrity of India, and it may be
added, of Pakistan. A just and fair settlement of
the dispute, in whatever form, would give to each
country a mutually recognized and secure frontier
and thus encourage their respect for each other's
territorial integrity. It would strengthen internal
cohesion in both countries. The only real safeguard
against disintegration is peace and absence of
external and internal conflict.
On the question of Kashmir becoming
independent - regardless of whether the possibility
is practical or theoretical - it has been argued
that the emergence of another sovereign entity in
the subcontinent would encourage secessionist
tendencies in both India and Pakistan and lead to
the collapse of their existing federal structures.
What seems to be at work here is the notorious and
now discarded falling dominoes theory. No area which
is today part of India or Pakistan was dragged into
a union against its will; all joined by a volition
expressed or confirmed in a popular vote. The only
exception is Kashmir, which has never been provided
the opportunity to decide its own status or
affiliation. What, therefore, applies to Kashmir
does not apply to Assam or Tamil Nadu in India or to
Sind in Pakistan. This is also plain from the fact
that both countries accepted an international
obligation under the auspices of the United Nations
regarding Kashmir which neither as a sovereign state
would accept regarding any of its constituent units,
namely the obligation to withdraw their forces from
the territory and let the people decide its status.
The dispute over Kashmir is sue generis. The
demilitarization of Kashmir and the holding of a
plebiscite in it, in accordance with an
international agreement, does not logically justify
a bid for secession by other territories nor - what
is more important - psychologically encourage it.
Moreover another consideration that the Indian
contention ignores is that part of Kashmir can
emerge as independent and other parts join India or
Pakistan. This would mean consolidation and common
agreement rather than fission and dispute.
Finally, what is the common sense view
of the matter? The Indian contention that the
de-annexation of Kashmir would lead to the breakup
of the Indian Union implies that the constituent
units of that Union are only waiting for an example
to be set in Kashmir, which they would follow and
splinter off. The reality, however, is that they are
in the Indian Union because (a) they identify
themselves as parts of a larger nation, and (b) it
is in their perceived interest - economic, social
and cultural - to be within the Union rather than
face the hazards of a separate, independent
existence. If and where the sense of identity and
interest is lacking, the unit will secede in course
of time regardless of what happens in Kashmir. The
danger of the disintegration of the Kashmir dispute
is thus only a specter raised to obstruct that
settlement.
Is it not Pakistan rather than India, which in
violation of the UN resolutions since it failed to
withdraw its troops from Kashmir as required under
UNCIP resolution, dated 13 August 1948?
The late Josef Korbel, who served as
chairman of the UN Commission for India and Pakistan
(incidentally father of the present United States
ambassador to the United Nations, Ms. Madeline
Albright), dealt with this Indian argument in an
article he wrote for The New Leader, an American
magazine, in its issue of 4 March 1957:
"This is not true. Pakistan was not
expected to withdraw her forces from Kashmir as long
as there was no agreed-upon plan for simultaneous
Indian withdrawal."
The withdrawal of Indian and Pakistani
forces from Kashmir - i.e. demilitarization - as
envisaged in UNCIP resolutions would not have been
even a presentable proposition if it exposed one
side to danger of attack from the other.
Accordingly, while the resolution did require
Pakistan to begin to withdraw its forces before
India would begin the process on its side. They also
required that the completion of the process be
synchronized and simultaneous on both sides. This
obviously required an agreed-upon plan. The
Commission prepared such a plan - called the Truce
Plan - and presented it to the two governments.
India raised several issues. President Truman (US)
and Prime Minister Attlee (UK) made a joint appeal
to the two governments to accept the arbitration of
the Plebiscite Administrator-designate on these
points. Pakistan promptly accepted the proposal,
with no if's and but's; India rejected it. Later,
two United Nations Representatives, Sir Own Dixon
and Frank Graham (US) made intense efforts to secure
India's agreement to a rational plan so that the
Plebiscite Administrator would be inducted into
office and would dispose of all the remaining forces
- the residual Indian and the local - as he deemed
fit. Sadly, they failed to overcome India's stubborn
obstruction. This has been the cause of the
stalemate in Kashmir ever since. The solution is
there, only India is unwilling to implement it.
With the signing of the Simla Agreement in 1972, has
Kashmir not become a bilateral matter between India
and Pakistan as opposed to an international dispute?
Does it not follow then that the UNCIP resolutions,
which called for, the holding of a plebiscite in the
State no longer apply?
India's interpretation of the Simla Agreement is
contrary to the text and stated purpose of the
Agreement. The Agreement recognizes the need for a
"final settlement" of the Jammu and Kashmir dispute.
In the words of a legal expert, Prof. Ali Khan,
writing in the Columbia Journal of Transnational Law
in 1994, "It would defeat the purpose of the
Agreement if bilateralism is invoked to merely cut
off the Kashmir dispute from the international forum
that can contribute to ending it. Furthermore, it
would be unlawful to use the bilateral clause to
postpone indefinitely the final settlement of the
dispute, with the intention to freeze the status
quo. Any willful latches in solving the Kashmir
dispute would provide a good basis to argue that the
procrastinating party has violated a fundamental
principle of the law of treaties, which mandates
that every agreement must be performed in good
faith."
As for the argument that the UNCIP
resolutions are no longer valid, the same writer
says, "It is bad jurisprudence ... to construe a
resolution as invalid simply because the state to
which it was directed could for decades successfully
defy the will of the Security Council. A Security
Council resolution remains legally binding until it
is repealed, either directly or through a subsequent
incompatible resolution. Mere non-enforcement of a
resolution over a long period is not a sufficient
basis to challenge its continued validity."
Article 103 of the UN Charter is of
decisive importance in this context. It reads:
"In the event of a conflict between the
obligations of the Members of the United Nations
under the present Charter and their obligations
under any other international agreement, their
obligations under the present Charter shall
prevail."
The Simla Agreement signed in the
aftermath of the 1971 war which dismembered the
country with India acting as the military midwife to
the birth of Bangladesh, until then East Pakistan,
nowhere precludes a settlement of the Kashmir
dispute along the lines laid down by the United
Nations with the consent of India and Pakistan. On
the other hand, it expressly states that relations
between the two countries shall be governed by the
principles and purposes of the UN Charter. The
Agreement thus reinforces the obligations of both
parties to achieve a settlement in accordance with
the resolutions endorsed by the Security Council.
The Agreement's provision that pending a final
settlement, none of the sides shall unilaterally
alter the situation in Kashmir cannot be used as a
license for leaving the problem unresolved. On the
other hand, it carries the clear implication that
efforts would be made by both countries to arrive at
a final settlement.
The Indian plea that the renaming of
the Ceasefire Line as the Line of Control amounts to
its conversion as the international border between
the two states draws no support from the Agreement.
The Agreement commits the two sides to "respect" the
Line of Control "without prejudice to the recognized
position of either side". It is quite clear that to
"respect" the line means not to violate it
militarily, in other words to maintain the
ceasefire. By no stretch of the imagination can that
be taken to mean the Line of Control's formal
acceptance as the international border between India
and Pakistan. This is clear from the words that the
"respect" will be "without prejudice to the
recognized position of either side". Pakistan's
recognized position is that the status of the State
is yet to be determined.
There are twelve substantive
resolutions of the Security Council pertaining to
the settlement of the Kashmir dispute and the
determination of its final status through an
impartial plebiscite. A position safeguarded and
secured by the phrase "without prejudice to" can
hardly be deemed to have been abandoned by Pakistan
at Simla, as now claimed by India. The preamble to
the Agreement speaks of the resolve of the two sides
to establish a durable peace in the subcontinent.
How can a durable peace be established unless the
one issue which has led to two wars and nearly half
a century of mutual hostility and continuing
confrontation is settled in accordance with the
wishes of the people of Jammu and Kashmir, as
Pakistan has consistently maintained?
The people of Jammu and Kashmir are at
the heart of this dispute and it is their fate and
future, which are at stake. In Simla, Kashmiris were
unrepresentative. Even assuming that the Kashmir
dispute was settled at Simla, as India claims, it
should be pointed out that nothing in international
law confers on two parties the authority to make
decisions or conclude agreements which adversely
affect the rights of a third. The Indian view that
the Kashmir dispute can only be settled bilaterally
puts both the people and the United Nations out of
reckoning altogether. As for the argument that the
Simla Agreement ousts the UNCIP resolutions, we may
quote the words of the same legal expert again: "The
greatest flaw of the Simla Agreement is its failure
to provide any mandatory methodology or specific
machinery to settle the outstanding dispute between
the parties."
In this respect, it cannot claim to be
a substitution of the UNCIP resolutions. For 23
years, the Simla Agreement has failed to bring the
two countries together for the settlement of the
Kashmir dispute. In fact, if the UNCIP resolutions
are obsolete, as argued by India, the Simla
Agreement has also atrophied. "The strict
interpretation of bilateralism prevents a settlement
as long as one side refuses to negotiate" - as India
does. No credible peace process can be initiated
when the official Indian position remains that the
only thing left to negotiate and settle is what it
calls the "vacation of Pakistani aggression" from
Azad Kashmir and the Northern Areas?
To quote the same expert again, "It
seems as if the earlier military deadlock in Jammu
and Kashmir has now resurfaced in the form of
dysfunctional bilateralism ... The bilateral clause
in the Simla Agreement is intended to resolve the
Kashmir dispute and not to frustrate or delay its
final settlement."
Do the UNCIP resolutions limit the right of
self-determination of the people of Jammu and
Kashmir to accession either to India or Pakistan?
Does not the present situation, therefore, call for
a revision of these resolutions?
The right of self-determination is, by
definition, a right that can be restricted only by
geographical possibility (Kashmir cannot accede to
Canada, for example). What the UNCIP resolutions did
was to subject the conflicting claims to Kashmir of
either India or Pakistan to the decision of the
people of Kashmir through a plebiscite. They did
not, as they could not, limit the scope of this
decision itself. This is apparent from the reading
of the agreement embodied in the UNCIP resolutions,
which has been recorded by different Representatives
of the United Nations, and it is implicit in
subsequent resolutions of the Security Council as
well.
When India first brought the Kashmir
issue to the United Nations, its representative set
out three options for the State: accession to India,
accession to Pakistan and "to remain independent".
Sir Owen Dixon later explored with the two
governments the fourth possibility of the partition
of the State in accordance with the wishes, either
already known or to be impartially ascertained, of
the people of the different zones through zonal
plebiscites. As the suggestion was not in conflict
with the principle of self-determination, neither
government rejected the possibility outright.
This led to the recognition that the
situation contained multiple possibilities, all
subject to the people's will and flowing from it.
More than one resolution of the Security Council
reflects this awareness. The resolutions adopted on
14 March 1950 and 30 March 1951 refer to the "final
disposition of the State (to be) made in accordance
with the will of the people expressed by the
democratic method of a free and impartial plebiscite
conducted under the auspices of the United Nations."
The phrase "final disposition" is wider in meaning
and scope than "accession to India or Pakistan". The
Security Council felt encouraged, indeed entitled,
to use this expression because it did not feel
justified in foreclosing any option for the people
of Jammu and Kashmir.
It was entirely right for India and
Pakistan to pledge to each other as they did, not to
fight over a large territory but to let the people
of that territory decide its status. However, the
principle that they acknowledged through the
acceptance of the UNCIP resolutions was the
principle of self-determination. It would be
self-contradictory to deny the Kashmiris the
substance of this principle while providing them
with its bare form. It would amount to telling them
that they can choose independently but they cannot
choose independence.
Some background facts deserve to be set
out here. The founder of Pakistan, Quaid-i-Azam
Mohammad Ali Jinnah, stated on 17 June 1947,
"Constitutionally and legally, the Indian states"
(including Kashmir) "will be independent and
sovereign on the termination of paramountcy and they
will be free to adopt any course they like. It is
open for them to join the Hindustan Constituent
Assembly or the Pakistan Constituent Assembly or
decide to remain independent."
The All Jammu and Kashmir Muslim
Conference, which was the representative
organization of the majority of the people of
Kashmir in a press statement issued in May 1947,
urged the Maharaja to "declare Kashmir independent
immediately and establish a separate constituent
assembly to frame the constitution of the State".
It should be noted that the
Quaid-i-Azam spoke of "states" not of the princely
rulers of these states. It was assumed throughout
that, though the ruler would formally sign an
instrument, it would have to be in conformity, not
in conflict, with the wishes of the people involved
if it was to have any effect.
The obligation accepted by India and
Pakistan under UNCIP resolutions was to demilitarize
Kashmir and create conditions for the ascertainment
of the popular will under impartial supervision and
control. Pakistan is acting in conformity with its
obligations under the UN Charter and as a party to
an international agreement in demanding that the
agreement be implemented. India has backed out of
the commitment it made. However, the right of the
people of Jammu and Kashmir to decide their future
themselves is not curtailed, even when they support
the option of accession to Pakistan, as they do in
overwhelming numbers. They continue to possess the
right to decide their future status transcending the
contending claims of India and Pakistan or in
partial accommodation of both.
The idea of independence for Kashmir,
if not for all its zones, is not new. It remained
understated in the 1950s because of the Cold War
which generated the fear that an independent Kashmir
would be subject to foreign aggression or intrigue
and the belief at the time that small states could
not be viable. These inhibiting factors no longer
exist. Scores of states, smaller in size and
population than Kashmir, have become sovereign,
which should explain the resurgence among Kashmiris
of the idea of independence.
Realistically, would not autonomy for Kashmir within
the Indian Union be a fair solution of the dispute?
It is a non-starter and the people of
Kashmir have rejected it for the following reasons:
(a) It would carry no international
guarantee. A decision of the Indian government today
could be cancelled, whetted down, or divergently
interpreted tomorrow. Even an amendment of the
Indian Constitution would be liable to repeal or
revision by the Indian legislature.
(b) It has been tried in Kashmir's
earlier experience and it is has failed to provide a
solution. From 1947 to 1953, India's supporters in
Kashmir, though a minority, made much of Article 370
of the Indian Constitution, claiming that the
special status for Kashmir conferred by it amounted
to freedom from interference by the Indian federal
government in Kashmir's internal affairs. This
assertion was vehemently opposed by another section
of India's supporters, the Dogra community in Jammu.
A heated controversy ensued: the main casualty was
Sheikh Abdullah, who was flaunting an accord with
Nehru as reinforcing Article 370. He was put in jail
and, during his imprisonment and afterwards, a
series of ordinances and other enactments converted
Kashmir into another state of the Indian Union with
the sole restriction that Indian citizens could not
purchase land in Kashmir. Indian citizens and
leaders have very logically challenged this sole
restriction itself.
(c) This was not a fortuitous
development. The Indian Prime Minister, Jawaharlal
Nehru, the architect of Article 370, had stated in
the Indian parliament that its provisions would
"erode" in course of time.
(d) Nehru's confessed anticipation
stemmed from a good perception of the working of the
Indian Union. That perception is still valid. When
one constituent unit of a federation is given a
special status, other units naturally look askance
at it and at least some of them will tend to demand
the same for themselves. The stress can be averted
either by encroaching on the status in order to make
it only nominal or by eliminating it altogether.
(e) Even a new conception of an
autonomous region within India, different from a
state of the Indian Union with a special status,
would keep Kashmir under subjection to India. In the
vital matters of defense, external affairs
(including external trade) and communications. It
would perpetuate the unnatural severance of its
links with Pakistan.
(f) After the campaign of mass
slaughter and destruction which India has conducted
in Kashmir since 1990 and which had reached
genocidal proportions, any dispensation which allows
the stationing of Indian troops in Kashmir is bound
to be repugnant to popular sentiment. Even if a
section of them were to accept it, others would
repudiate it; the dispute would continue to fester.
These considerations lead to the
conclusion that any solution of the Kashmir dispute
is pure moonshine which
(a) rests only on the good faith of the
Indian government, liable to change from one
administration to another, even if it is solemnly
conveyed to another government;
(b) does not contemplate an
ascertainment of the popular will without coercion,
intimidation or undue influence;
(c) does not result from a negotiating
process with the participation of Kashmir's
representatives.
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