|
J & K Accession Quicksand - A Commentary
by Arvind Lavakare |
A Series of Articles posted on 08-Feb-2001
Almost from its birth in 1947, Pakistan has had a fanatic obsession to possess its neighbouring Muslim-majority territory popularly known as Kashmir. That fanatic obsession has been the root cause of its hot wars, proxy wars and an unending cold war of bitter dispute against Hindu-majority India.
That dispute has now entered the 21st century --- totally unresolved after more than 53 years in which our army personnel, security forces and civilians have died in numbers that remain as uncertainly quantified as the damage to property from the bitterness that has worn all the frightening forms known to mankind. An idea about the human toll of that bitterness is however available from the disclosure of retired Major General O.P.Sabharwal to The Indian Express in Delhi on 14th December 2000 that "More than 15,000 lives have been lost in the past seven years. If that is not war, what is?"
It is ironic, then, that "There is no single, comprehensive official publication containing details of the Kashmir question, the UN resolutions and why they could not be implemented, as well as of more recent developments in Kashmir through the years of proxy war, terrorism and ethnic cleansing together with Pakistan's involvement in all of these." That quote of lament is the most unnoticed finding of the Kargil Review Committee in its Report of 15th December 1999 (Chapter 14, paragraph 24).
Justification for that finding is ample. Thus, the Government of India's previous White Paper on Jammu & Kashmir was in ... 1948. And the government's last dated publication entitled "Salient Aspects of the Kashmir Situation" is dated ... 1962. It's as if the so-called Kashmir problem was dead and buried soon thereafter, though the truth since then has been as dangerously and dramatically different as it was prior to 1962.
This commentary is a private Indian citizen's humble effort to partly fill the breach discovered by the Kargil Review Committee.
This document also seeks to fulfil the desire expressed by Prime Minister Vajpayee when he visited New York in September 1998. While addressing the Indian American community there, he said, "There is need to make people the world over understand the real Kashmir story" ( The Hindu, Chennai, of 29th September 1998).
The first fact of that "real story" is that it is a gross misnomer to dub it as being the "Kashmir Conundrum" or the "Kashmir Imbroglio" or the "Kashmir Question". To speak of simply "Kashmir" may be colloquially convenient, but the truth is that there isn't even a "Kashmir City" or a "Kashmir District" on the map, let alone an entity called the "Kashmir State." In reality, it is "Jammu & Kashmir" which is one of India's 28 states today. "J&K State" comprises 14 districts spread over 2,22,236 square kilometres bounded by China on the north, by Tibet on the east, by Pakistan on the west and by Punjab-cum Himachal Pradesh on the south. Unlike "Kashmir", Jammu is a separate administrative district as well as a separate city that also happens to be the winter capital of "J&K State.( Manorama Yearbook, 2000).
The origins of this insignificance meted out to Jammu in nation-wide and worldwide debates on the so-called "Kashmir Problem" need not concern us at the moment. Suffice it to say that after the J&K government officially asked for unprecedented autonomy from Delhi in June 2000, the political stir of the early fifties has been revived in Jammuregion where the Hindu majority as well as the Muslims are groaning about perceived injustice from the State government of the National Conference Party run under the stranglehold of the Sheikh Abdullah dynasty having roots in the Kashmir Valley.
As a matter of fact, the people of Ladakh District --- the biggest district in J&K State --- have also been restive since the State government's demand for autonomy short of independence.
There is, moreover, the plight of the minority Hindus who have fled from the Kashmir Valley since 1989 or so. According to the resolution adopted by seven of their organisations cited in The Times of India, Mumbai, of 26th December 2000, there are 500,000 of those who call themselves as Kashmiri Pandits. They have claimed from public platforms that they are victims of a blatant, brutal process of ethnic cleansing
Meanwhile, the fiscal position of J&K is itself precarious, with its Chief Minister confessing in the interview to The Asian Age , Bombay, of 11th November 2000 that the State's annual expenditure is ten times its corresponding revenue of Rs 700 crores.
Even as the State survives on liberal doles from the national exchequer, corruption there is now acknowledged as widespread. According to a report in The Indian Express, Mumbai, of 4th November 2000, amounts involved in corruption cases of the preceding six years pending before the State Vigilance Organisation equal the State's annual budgetary allocation.
Thus, even if and when the issue of J&K is finally resolved in the world's eyes, the Indian nation will probably continue to be dogged with the State's myriad problems: a perilous economy, an administration ravaged by graft, the diverse demands of the Jammu and Ladakh regions and the pining of the Kashmiri Pandits for a haven of their own.
All of it adds up to an utterly bewildering
,
and fluid scenario engulfing the whole Indian nation with the uncertain future of just one of its 28 States --- the State of J&K.
That the scenario is complex, almost chaotic, as the year 2001 descends on us is obvious to the lay newspaper reader. He simply cannot comprehend its nuances- either in part
s
or in full, either its past or future course. For that matter, it is difficult for him even to pronounce the names of the various individuals or their more exotically named 20-odd outfits that have sprouted over the years and are presently wanting to demand their pound of flesh at the negotiating table they are itching to sit at to resolve the giant conundrum once and for all.
This document seeks to try and reduce that layman's confusion if not to remove it altogether. Hopefully, that process may enable some light to filter through to those who have often added to the confusion with urgent edit page stuff or live prime time TV debates without even knowing that the State of J&K has had, since November 1956, its own democratically established Constitution which has indelibly etched the words that the whole State "is and shall be an integral part of the Union of India."
It seems best therefore to begin at the beginning --- the background of the big bang in October 1947 that has dragged our nation into what is now a virtual quicksand --- the J&K quicksand.
The Origin
During the British rule, there were 562 Indian States (including J&K) that were outside the administrative, legislative and judicial sphere of the (British) Government. Each of those States had a hereditary ruler, who, subject to the paramountcy of the British Crown, exercised, with some exceptions, unlimited power over his subjects. These States covered more than half the area of the Indian sub-continent and were referred to as "Indian India." The other India was "British India", comprising the provinces and certain other areas.
The two Indias disappeared with the Indian Independence Act, 1947, which released the Princely States from their allegiance to the British Crown. Their rulers became repositories of all powers. Sovereignty reverted to them and they were given the discretionary power to accede to either the Dominion of India or the Dominion of Pakistan created by that Act.
The ruler of J&K, the late Maharaja Sir Hari Singh, great-grandson of the founder of the State, found himself in a tight corner. Previously, he had been averse to parting with an iota of power, but now he had to seriously consider the three alternatives: accession to India, accession to Pakistan, and independence. Chronically indecisive, he delayed his decision even as he was alarmed at the veiled threats from Pakistan if he did not join it.
Even as the Ruler of the princely State of Jammu and Kashmir dithered, a large column of several thousand tribesmen from the Pakistani territory attacked the frontier of his State on 20th October 1947. They were armed with bren guns, machine gun, mortars and flame-throwers. Joseph Korbel (father of Madeleine Albright, the ex- US Secretary of State) recorded in his book "Danger in Kashmir", 1954, that "Srinagar trembled before the danger of the tribesmen's invasion". Regulars from the Pakistan army were known to be part of the invading force that was believed to be under the command of Akbar Khan, a Major General in the Pakistani army.
On 26th October 1947, the Maharaja of Kashmir, realising that his dream of independence has been shattered, signed the Instrument of Accession (designed by the British Government for all of the 500-odd princely States over which it had exercised paramountcy till August 1947) and asked for help from the Dominion of India to Which he had agreed that day (See Appendix I for the five facts of J & K's Accession to India)
On 27th October 1947, the Dominion of India accepted the Kashmir Ruler's accession and the first batch of Indian troops landed at Srinagar airport from Indian Air Force planes.
On 7th November 1947, the Indian won the battle of Shatlang, thereby removing all threats to Srinagar. Three days later, Baramulla was recaptured. The process of retreat by the enemy on all fronts had begun.
By 11th November, our army had reached the heights of Uri; the tribesmen were in such a hurry to withdraw that they gave up Tanmarg and Gulmarg without firing a shot.
With the Indian army finding that the only way the raiders could be completely removed from J & K was by attacking their bases and sources of supply in Pakistani, India warned Pakistan, on 22nd December 1947, that unless Pakistan denied her assistance and bases to the invaders, India would be compelled to take such action.
At that crucial stage 53 years ago of Indian history, Lord Mountbatten, the British Crown representative who was then Governor-General of India, urged our Prime Minister Jawaharlal Nehru, about "the overwhelming need for caution and restraint"; he stressed "how embroilment in war with Pakistani would undermine the whole of Nehru's independent foreign policy and progressive social aspirations". Though Mahatma Gandhi had reportedly written to Britain's Prime Minister, Atlee, for his government's intervention, Nehru decided, on Mountbatten's advice, to lodge a complaint to the UN Security Council.
That was done in January 1948 when India invoked Article 35 of the UN Charter. The text of India's complaint is recorded in Security Council document of 2nd January 1948. As cited by Jagmohan (twice the Governor of Jammu and Kashmir and presently a Lok Sabha member) in his book, "My Frozen Turbulence in Kashmir", 1992, India's complaint said, "Since the aid which the invaders are receiving from Pakistan is an act of aggression against India, the government of India are entitled, in international law, to send their armed forces across Pakistan territory for dealing effectively with the invaders". According to Justice Anand, the Government of India appealed to the Security Council to ask the Government of Pakistan ---
India had though that hers was a simple and straightforward case. We believed that the withdrawal and expulsion of the Pakistan raiders from the soil of J&K and the immediate stoppage of the fight were the only tasks to which the Security Council was to address itself. Instead, what actually transpired in that "august" world body was a tortuous treachery of our cause.
Almost immediately from the time we filed our complaint, events at the Security Council took a devious and diabolical twist. For reasons that could not be fathomed, the western world did not uphold our case in the cut and dry manner we had piously hoped for. Caveats and controversies were created; decisions were delayed as though time had no significance; implementation of those decisions was apparently no one's concern. And, after over 16 years since we petitioned it for justice, what the Security Council delivered was an official cease-fire and a rejection of J&K's legal accession to India.
To our nation's eternal humiliation, we were made to concede the concept of a plebiscite to determine the future nationality of J&K. The only saving grace of that humiliation has been that it was made conditional to Pakistan's total withdrawal from the territory of J&K it had invaded. And, as the world knows, the UN has not had the spine to have that order carried out till today.
For delivering what it did, the Security Council has (as per Appendix II), the following to show
Without attaining our military objectives we agreed to a cease-fire on 1st January 1949; on 27th July 1949 we agreed to a Cease-Fire Line that was only some 15 miles from Srinagar.
We agreed to a UN Military Observers Group being posted on the Cease-Fire Line. It's a different matter that the Group's purpose all along has been so nebulous that no one ever even mentions it --- not even when Pakistan produces a conflict like Kargil.
Pakistan retains about one-third of the independent territory it invaded in October 1947 while India --- to which that independent territory legally belonged from 26th October 1947 --- has been left not only sucking its thumb and licking the wounds of conflicts, wars and cross-border terrorism but also with frequent unsolicited advice and admonitions from all and sundry.
At the end of that UN fiasco came the Security Council President's Statement of 18th May 1964. That Statement is an indictment of the UN itself. Leaving India's original complaint in mid-air, it nevertheless declares that "The India-Pak question remains on the agenda of the Security Council." That may or may not be an ominous threat, but it certainly is arrogance.
Two of world history's great ironies characterise that marathon filibuster of international intervention in what was essentially a simple and straightforward issue.
The first paradox is that India's complaint against Pakistan about its invasion of J&K remains unresolved after 53 years although, by its very first resolution of 17th January 1948, the Security Council recognised "the urgency of the situation". The second irony is contained in the last, above referred Statement of the Council's President. He informed us therein of the view expressed by some Council members that "the negotiations between India and Pakistan might be complicated by any outside intervention." That, believe it or not, was what the Security Council President learnt a good eight years before the Simla Agreement of 3rd July 1972 echoed the same view when India and Pakistan "resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them".
However, the most tragic blow that the UN must be considered to have delivered to India was its sinister silence over Pakistan officially agreeing to cede some 2050 square miles of the large area of J&K it had illegally occupied by its aggression in October 1947. That black deal between Pakistan and China came about in February 1963, more than a year before the Security Council President put finis to what he called "The Indo-Pak question".
Behind Our UN Disaster
If our 16-year experience with the UN on the J&K issue was a classic example of justice denied despite inordinate delay, our own dismal diplomacy may well have had a lot to do with it.
One is not aware of any recorded account analysing that diplomatic disaster of India on a case that was really open and shut. It is clear in retrospect however that nascent free India was the perfect simpleton whose lack of guile was allied to a naïve faith in the newest world organisation's sense of fair play.
Perhaps the UN too genuinely fumbled in finding its nascent feet. However, some secret US archives mentioned in an article published in The Times of India , Mumbai, of 11th August 2000 are said to reveal that it was Britain, and its influence over the USA, which back-stabbed India in the Security Council. Yes, the sway of the Council's permanent members on UN actions may well have begun almost with its inception in 1945.
It was seen earlier that that India's complaint of January 1948 to the Security Council was under the UN Charter's Article 35. Since that Article is inter-related to Article 34 and since, as will be seen, this commentator is of the view that an inadequate grasp of that relation landed India's case into the subsequent labyrinth, it would be worthwhile to reproduce Articles 34 and 35.
Article 34
The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuation of the dispute or situation is likely endanger the maintenance of international peace and security
Article 35
"We have referred to the Security Council a simple and straightforward issue. The withdrawal of the raiders and invaders from the soil of Kashmir and the immediate stoppage of the fight are ... the first and the only tasks to which we have to address ourselves."
The Indian spokesman's statement was followed by a brilliant one from Sir Mohammed Zafarullah Khan of Pakistan. He made every effort to broaden the issue and so in his opening address to the Security Council he declared ----
"The issue does not appear to be as simple as the representative of India has tried to make out ... and it will be necessary to set out before the Security Council the whole background of the Kashmir problem." (Note the use of the word "problem", rather than the word "situation".)
A few days later he remarked that ----
"What is happening in Kashmir is a continuation of the process which has reached in the State of East Punjab (the communal riots) and cannot be divorced from it."
Zafarullah Khan was only dramatising the Pakistan Government's letter of 15th January 1948 that not only rejected India's charges but also made counter-charges about
"In our view, the story of these happenings all over India ... are totally irrelevant to the issue now existing between India and Pakistan in regard to Jammu and Kashmir ... We submit that these events and the causes which led to them are altogether beside the point ... The only issue, and the prime issue, before the Council is the issue relating to the invasion of Kashmir."
The result of these deliberations on the floor of the Security Council was the resolution of 17th January 1948 in which the Council called upon both " take immediately all measures within their power ... calculated to improve the situation and to refrain from making any statements and from doing or causing to be done or permitting any acts which might aggravate the situation ... " (Note the use of the word "situation" twice in that sentence.)
That resolution of 17th January 1948 was clearly interim action on our complaint of a "situation" in terms of Article 35 and was accepted by both India and Pakistan.
It was on 20th January 1948 that India allowed the UN to take an attitude that was to dramatically impact the content of future UN debates and decisions.
On that day, the Security Council's resolution established a three-member Commission (called United Nations Commission on India and Pakistan---UNCIP) and invested it with a dual function, one of which was "to investigate the facts pursuant to Article 34 of the Charter of the United Nations."
Now since India had brought attention to a "situation" --- not a "dispute" --- the UNCIP should have been expected to pursue the facts only of the "situation" created by (i) Pakistan's aggression into J&K at a time when that Princely Sate was independent and (ii) Pakistan's continuance of that aggression even after that State had acceded to India through a legal document recognised by British Parliament.
Instead, the above UN resolution of 20th January 1948 asked its Commission to also investigate facts of "the situation in the Jammu and Kashmir State set out ... in the Pakistan Government's letter dated 15 January 1948" (referred to earlier.) Thus, the UN opened the Pandora's Box by permitting investigation of Pakistan's disputation of J&K's accession to India. In other words, although Pakistan itself had not originally brought that "dispute" to the attention of the Security Council under Article 35 or any other Article of the UN Charter, the UN was now allowing Pak's perceived "dispute" as a "situation" falling within the ambit of the "situation" brought to its attention by India. In effect, the UN was allowing the possibility that, as per Pakistan's accusation, India had invaded Srinagar first, before Pakistan actually did, and thereafter forced that Princely State to accede to it. This turn was outrageous because India, in fact, was trying to drive out the Pak invasion from a territory after that territory had legally become India's own on 26th October 1947.
By accepting that resolution of 20th January 1948, Indian diplomacy had been taken for a ride.
India succumbed deeper exactly a week later when its representative observed on the floor of the Security Council that ---
"In accepting the accession they (India) refused to take advantage of the immediate peril of the Ruler in which the State found itself and informed the Ruler that the accession that the accession should finally be settled by plebiscite as soon as peace had been restored."
Justice Anand writes "It was this (above) statement which caused doubts in the minds of the members of the Security Council about the finality and the legality of the accession. The Indian representative made it appear that the accession was temporary ... was conditional."
While the subject of plebiscite will be discussed at length later in this commentary, what concerns us at this point is that India's (Nehru's?) totally unwarranted public exhibition of its "democratic liberalism" on 27th January 1948 further emboldened the UN thereafter.
Thus, the very first sentence of the UN resolution of 21st April 1948 mentioned our complaint as "concerning the dispute (emphasis supplied) over the State of Jammu & Kashmir" and went on to assert that "the continuation of the dispute (emphasis supplied) is likely endanger international security." The momentous recommendation that
Thus had India allowed herself to be sucked by high and dry from a "situation" into a "dispute", from Pak's aggression on a foreign territory into a big question mark.
By twisting the nature of India's complaint of a "situation" into a "dispute", the Security Council empowered itself to act as per clause 2 of its Charter's Article 37 reproduced below:
Article 37
That is precisely why the UN Charter permits only the graver eventuality to be either---
To facilitate understanding, Articles 33 and 36 are reproduced below. (Articles 34, 35 and 37 reproduced earlier.)
Article 33
It is also conspicuous that Nehru chose to field V.K.Krishna Menon for many a UN debate on J&K. The fellow was arrogant in speech, a known leftist who irritated the Western powers with his long speeches and, moreover, became the butt of ridicule in the international diplomatic circle for his repeated use of the concocted corny phrase demanding Pakistan's "vacation of aggression."
Looking back on that trouncing we suffered in the UN, India's press must also stand condemned for not alerting the government on the legal nuances of the UN Charter, for not cautioning it against the machinations of the UN and for not advising it to boldly stay firm on the legal grounds of J&K's accession. It is clear in retrospect that in contrast to the headline grabbing and scoop-hunting journalists of today --- brash though several of them may be ---, the Sadanands and the Frank Moraes of the early Independence years tended to be wordsmiths who idolised Nehru rather than insightful men who did their homework and could therefore sniff any danger to national interest.
A similar charge could well be laid against the politicians of those years. They may well have maintained parliamentary decorum but were clueless on international intrigue, and also probably held Nehru's westernised sophistication in such awe that they couldn't oppose what he was doing. Sardar Patel was probably the only tall one who could have taken Nehru head on in the UN but India's Iron Man was overburdened with the integration of the 562 Princely States in the Union and the relief-cum-rehabilitation of lakhs of post-Partition refugees; besides, his health was failing him.
Now to Britain's perfidious role in the Security Council. According to Narendra Singh Sarila, the author of the earlier mentioned edit page article in The Times of India, Mumbai, 11th August 2000, the US State Department's archives reveal that ----
By December 1947, the American Embassy in London was reporting to Washington that "Mountbatten was endeavouring to persuade India to agree to appointment of UN intermediates including USA (for Kashmir)." General George Marshall, the US Secretary of State, was known to have suggested that a reference to the UN "would complicate the issue."
Carrying tales about Nehru's Brahmin logic issuing threats to Pakistan, Britain succeeded in making the US address a note on 30th December 1947 to Nehru "not to take precipitous action that would seriously prejudice international goodwill and prestige."
Throughout 1948 Britain pressed America to recognise Pakistan's occupation of Kashmir's Northern Territories and to disregard the Maharaja's accession to India. When General Marshall as well as his assistant, Dean Rusk, continued to be unwilling to challenge the validity of Kashmir's accession to India or to recognise Pakistan's presence in any part of J&K, the British Foreign Secretary, Ernest Bevin, let the cat out of the bag that the issue was strategic and not merely one of constitutional or legal propriety. Britain's reasoning was that India would not support it to counter a Soviet thrust towards the oilfields along the Gulf, and wanted a "loyal" government in the strategic north-west abutting Iran and Afghanistan.
The most stunning blow of those American archives is that the US State Department's continued persistence that Pakistan should withdraw from the entire state (of J&K) before the holding of a plebiscite changed later --- after India agreed to the cease-fire and Nehru expressed willingness to consider partitioning Kashmir leaving Gilgit in Pakistan.
The question then arises: Was Jawaharlal Nehru a statesman or a simpleton or a stooge?
You may well choose to delay your answer until after you have read about India's several innings at the game of bilateral talks with Pakistan begun by him even before the United Nations declared its own innings closed.
Bilateral Sterility
Having been the beneficiary of getting the UN to pronounce the J&K State as a "dispute" by the Security Council with a UN-conducted plebiscite as bonus, Pakistan is delighted when the J&K conundrum enters the international stage. Their leaders, in fact, always urge international intervention in the matter.
On the other hand, India burnt its fingers, boats and much else by taking the J&K "situation" to perform in the 16-year drama of the UN stage. It is therefore not surprising that our politicians press the panic button at the very mention of third party mediation on the subject. Why, even a comment or two on the issue by a world leader like Nelson Mandela is cause for our Opposition in Parliament to pounce on the government for letting the issue be "internationalised." That is why those in power in Delhi avoid outside intervention in J&K like the plague, and harp, instead, on bilateral talks.
But to be brutally honest, such bilateral talks have achieved next to nothing. Nawaz Sharif, the exiled Prime Minister of Pakistan, dubbed the efforts as "sterile".
Sterile indeed has been the outcome of a series of such bilateral talks first begun by Nehru, who else?
The first encounter was a six-round affair starting in December 1962 when Ayub Khan was Pakistan's President and Zulifikar Ali Bhutto its Prime Minister. Led by Swaran Singh, our then Minister for Steel, Mines and Fuel, the Indian delegation met Bhutto's team as follows:
While no concrete result emerged from them, those talks reveal the thinking on both sides. More importantly, they show up how rash Nehru's government was in seeking its declared goal of a lasting peaceful solution to Indo-Pak relations.
As narrated by Gundevia, what Pakistan asked for in those talks at one time or another was:
Fortunately, India didn't succumb to the pressure and to Pak's demands. On the other hand, if we went unscathed, it was because Pakistan's negotiators were a little too greedy in refusing what were some over-generous proposals by us. Indeed, what is frightening in retrospect today is how imprudent and impetuous India's approach was to those critical bilateral talks. The pick of such actions were:
But Nehru had apparently not had enough of Pakistan's intransigence and arrogance. After all, didn't he have to live up to the image of willing to bend backward for international peace?
The opportunity came a year after Bhutto had left Delhi in huff. On 29th April 1964, Nehru's dear, fellow friend from the Kashmir Valley, Sheikh Abdullah, was released from jail where he had been since 9th August 1953. Almost immediately he wished to engage himself in solo peace talks with Ayub Khan, no less. And Nehru said "Let Sheikh try."
Abdullah wanted to put to the President of Pakistan the idea of a "Federation or Confederation of India, Pakistan and the State of Jammu and Kashmir." It was a proposal that, even after two or three sessions of discussion, he could not explain to Gundevia as to how or why it could provide a solution to our problems.
Nehru himself had some misgivings in regard to a Confederation in which J&K might come to be some sort of a separate unit. But, like Gundevia, he believed that the odds were that Pakistan would turn the whole thing down because Ayub Khan would fear losing Pakistan itself by a gradual process of disintegration. On that hunch alone, Nehru gave the green light to Abdullah's idea at a short session of the Emergency Committee of his Cabinet.
In Rawalpindi on 26th May 1964, Ayub Khan did indeed turn down the Confederation concept straight away ---- fortunately for India yet again. But Abdullah that day got Ayub Khan to agree to a "summit" meeting with Nehru ---- an idea he had had certainly not discussed with India's Foreign Secretary, and probably not with the nation's Prime Minister himself.
That "summit" never came about. On 27th May 1964, Jawaharlal Nehru was dead.
But other "summits" have subsequently come --- Tashkent in January 1966, Simla in July 1972 and Lahore in February 1999. All of them have come and gone, interspersed with scores of meetings between various officials of the two countries. Despite the high-hopes they generated through extensive media publicity, the J&K conundrum has refused to go.
The only significant outcome of those "summits" has been the delineation of a new boundary termed as the "Line of Control" (LOC) under the Simla Agreement. That LOC, a modification of the earlier Cease-Fire Line of July 1949, is believed as not in favour of Pakistan this time, except in the small Chhamb-Jaurian sector.
What is sad for an Indian is that though we held the aces at the Tashkent and Simla meets, our Prime Ministers did not use them to forge meaningful advantages on the J&K front.
Thus, in the 1965 war, we had gone well across the Cease-Fir Line. But in accordance with the terms of Tashkent, we returned the re-conquered Pak-occupied territory in J&K, and pulled our troops back to the Cease-Fire Line.
In the Bangladesh war of 1971, when the Pak army surrendered at Dacca after two weeks, Prime Minister Indira Gandhi called for cease-fire in the western sector, and Yahya Khan, the Pak dictator, gladly accepted. We had taken 93,000 prisoners then. But in the Simla agreement of July 1972, we agreed to return all of them, to pull all our troops back to the international India-Pak boundary and to give back to Pakistan the 5,139 square miles of territory that our forces had won in Punjab, Kutch and Sind.
Apart from failing to get back even portions of Pak-occupied territory of J&K in exchange for what India was giving up in the bilateral agreements, there is no record of India even questioning Pakistan's gross impropriety in gifting 2050 square miles of J&K territory to China. On this last issue, our media too has been so stunningly silent that one seriously doubts whether our fourth estate is even aware of that scandalous, shady deal between Pakistan and China.
Our performance in Tashkent, 1966, and in Simla, 1972, was in line with what had happened in J&K itself in 1947 when we stopped at an arbitrary line though we could surely have thrown out the invaders from the Pakistan side right out of the State in a few more days.
Idealists and moralists have been inclined to describe India's above conduct of diplomatic and military affairs as unparalleled in the observance of international ethics. However, nice guys always finish second, if not last, don't they? Remember, the bus ride to Lahore in 1999 brought us Kargil in return.
The billion-dollar question then is: If international intervention as well as bilateral talks haven't worked, just how do we extricate ourselves from the J&K quicksand?
We'll try to tackle that towards the end of this commentary. Meanwhile, there are some issues about which certain quarters have raised doubts that are rooted in ignorance or mischief or a mixture of both.
Some misconceptions
Because the event took place over half a century ago when the size and spread of Indian media was nowhere near as large as it is today, and because J&K up in the Himalayas was, somehow, not a part of the average Indian's nationhood --- a permit was required to visit it for several years after Independence ---, a large number of people in our country is not fully aware of
The Accession's Legality
The legality of J&K's accession to India has been one fact that has been sought to be distorted. A historian, Harry Alastair Lamb in his book (1994) entitled "Birth of A Tragedy: 1947" claimed "On the present evidence it is by no means clear that the Maharaja (of Kashmir) ever did sign an instrument of Accession ... The Instrument of Accession may never have existed ... " He also states "To judge from the White Paper (on Jammu and Kashmir issued by the Government of India, 1948) an Instrument of Accession may not have been signed by March 1948." Finally, he also challenges the Indian contention that the Maharaja of Kashmir signed the Instrument of Accession on 26th October 1947, one day before the Indian troops landed at Srinagar. In support of his rebuttal, Lamb states that (i) during 26th October 1947 the Maharaja was travelling by road from Srinagar to Jammu, and (ii) the account of V.P.Menon, Secretary of the Ministry of States, in his book ("The Integration of Indian States", London, 1950) that he was actually present when the Maharaja signed the Instrument is simply not true because many observers noted Menon's presence in Delhi on 26th October.
Let's sort out the dates first. Justice A.S.Anand's book mentions that "To save his life, Maharaja Hari Singh left Srinagar on 25th October and went to Jammu, the winter capital of Kashmir." Note Justice Anand's date: 25th October, not 26th October as mentioned by Lamb. Further, according to Jagmohan, V.P.Menon was in Srinagar on October 25, 1947 to assess the situation caused by Srinagar being plunged into darkness consequent to the capture a day earlier of Mohara power station by the raiders from Pakistani territory; noting "the stillness of the graveyard all round", Menon proceeded to have discussions with the Maharaja. Thus, according to Justice Anand and Jagmohan, the Maharaja and Menon were both in J&K on 25th October 1947. So who is right? A law graduate who did his doctoral thesis of London University based on authentic material in the British Museum Library and the Indian High Commission in London, and a senior official of the Government of India intimately connected with the Kashmir issue, or a confirmed pro-Pak historian who draws conclusions without a semblance of concrete evidence in support?
Alastair Lamb's credibility stands destroyed by an article of political commentator, Sumant Bannerjee. In that article Bannerjee states that the same documents which Lamb uses selectively to prove that the central Government in Pakistan was not officially a party to the "raid" in Kashmir were used by Ayesha Jalal, a Pakistani political scientist, to arrive at a different conclusion altogether! Thus, in her "'The State of Martial Rule", 1990, Jalal asserts that "... the government of Pakistan with the connivance of the Frontier ministry was actively promoting the sentiments that had encouraged the tribesmen to invade Kashmir." She then adds, "Pakistani officers, conveniently on leave from the army, were certainly fighting alongside the Azad Forces ---a conglomerate of Kashmiri Muslims and Pathani tribesmen."
As regards Lamb's outrageous scepticism regarding the very existence of an Instrument of Accession and the Maharaja of Kashmir ever having signed it, he is palpably ignorant of the letter which the Maharaja sent on 31st January 1948 to India's Home Minister. In that letter, cited on page 93 of Jagmohan's earlier referred book, the Maharaja wrote, inter-alia, "There is an alternative possible for me and that is to withdraw the Accession..." Would Lamb have us believe then that the Maharaja of Kashmir threatened to withdraw something which he had not signed in the first place? Would Lamb also have us believe that Lord Mountbatten, India's 's Governor-General then, and Nehru's government were taking the British government, the Pakistan government and the entire UN Security Council for a ride over the Instrument of Accession signed by the Maharaja of Kashmir ?
Was J&K's accession to India in any way conditional? Not at all. In fact, the Instrument of Accession was meant to be finality, with no riders attached at the time of its signing. In his Accession of Kashmir to India (The Inside Story), the earlier referred Mehr Chand Mahajan wrote as follows:
Two-Nation Theory
There are those who aver that, in consonance with Jinnah's two-nation theory based on religion, J & K State, with its predominant Muslim population, should have been annexed to Pakistan. at the time of the 1947 partition itself.
The truth here is different The truth is that His Majesty's Government's statement of June 3, 1947, setting out its plan for transfer of power provided that only British India (comprising provinces and certain other areas which were inside the administrative, legislative and judicial sphere of His Majesty's Government of India) would be divided into India and Pakistan on communal basis. The princely states were to simply become independent and, with the withdrawal of British paramountcy over them, the sovereignty of each of these States (some 560-odd in member) was to revert to the ruler.
In fact, the above statement of June 3, 1947, was specific by saying "His Majesty's Government wish to make it clear that the decision announced about partition relate only to British India and that their policy towards Indian States ... remains unchanged." This text from official British documents hits for a six the wild contention of Joseph Korbel that "...the basic pattern for accession by the Princely States to India was being decided exclusively on a communal basis." (Pg71 of his book "Danger in Kashmir", 1954.)
Moreover, it is a fallacy to believe that just because Kashmir's population was predominantly Muslim it would have acceded to Pakistan in any referendum that may have been held in that State in August 1947. As recorded bay Mrs. Alice Thorner in "Far Eastern Survey" No. 15 of August 11, 1948, public opinion in Kashmir was "sharply divided along political and religious lines. Both India and Pakistan had substantial support." And in "World Politics", No. 3, of April 1949, Phillip Talbott wrote of "the tenacious resistance against Jinnah and Pakistan of Kashmir's largest political party, the Kashmir National Conference, which was Muslim led and largely Muslim supported."
"Wishes of the People"
The origin of that phrase can be traced to the letter of October 27, 1947 which Lord Mountbatten wrote to Maharaja Hari Singh of Kashmir after the latter had signed his acceptance on the Instrument of Accession on October 26, 1947.
According to Justice Anand, that letter of Mountbatten was a personal letter, and it was in reply to the Maharaja's letter of October 26 stating that "a grave emergency" had arisen in his State and acknowledging that the Indian Dominion "cannot send the help asked for" without his State acceding to India. Accordingly, to that letter of his of October 26, the Maharaja attached the Instrument of Accession for acceptance.
In his letter Mountbatten wrote, " ... my Government have decided to accept the accession of Kashmir State to the Dominion of India. In consistence with their policy that in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government's wish that, as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of State's accession should be settled by a reference to the people." (Emphasis of Justice Anand.)
Apart from the legal point of M.C.Mahajan referred above, Justice Anand considers the effect of the "wish", expressed in Mountbatten's letter, to ascertain the wishes of the people. "In expressing the wish", says Justice Anand, "Lord Mountbatten was probably expressing a pious hope --- a declaration without legal effect. At best it was a declaration of the policy of the Government of India at that moment. But even if it was only that, there was never any agreement between the Ruler of Kashmir and the Government of India regarding the ascertainment of the wishes of the people. It was a unilateral declaration --- a declaration to which the Maharaja was never asked to agree. For any contract to be binding, law requires offer and acceptance. In this case it would seem that Lord Mountbatten made an offer but the Maharaja did not signify his acceptance ... Such an expression of policy or opinion cannot be regarded as a condition attached to acceptance of Kashmir's accession. It cannot be regarded as a "proposal' within the meaning of the Indian Contract Act."
Moreover, Lord Mountbatten's letter spoke of the policy of a reference to the people "where the issue of accession has been the subject of dispute." Now, with regard to Jammu and Kashmir in October 1947, there was absolutely no dispute about its accession. Neither Pakistan nor India was laying a legitimate, contestable claim to the State. Neither India nor Pakistan was disputing the Maharaja's sovereign right to take the decision he wanted. If there were at all any "dispute", it existed only in the Maharaja's mind as to whether to accede to India or to Pakistan or remain independent. Circumstances compelled his dithering mind to take the decision, but he was not bound to obtain his people's concurrence of it, before or after. In a monarchical form of government, it is the monarch who personifies and represents the State. When the Maharaja of Kashmir signed his accession to India on October 26, 1947, neither he nor India was violating the rights of Kashmiri people. Rather, it is the Kashmiris in Pak Occupied Kashmir who have been denied legitimate rights to be represented in the Pakistani Parliament or to have any voice in any administration of that country.
The Plebiscite Call
According to the Resolution dated January 5, 1949, of the United Nations Commission For India and Pakistan, the Government of India wrote a letter dated December 23, 1948 to the UN accepting that "The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite".
It is that commitment which India is often reminded about by Pakistan's leaders, by militant outfits there and here, and, sadly, by India's working journalists and guest columnists.
Pervez Musharraf, Pakistan's Chief Executive (at the time of writing this, be it noted!), did that almost as soon he assumed office in October 1999. The Prime Minister he ousted, Nawaz Sharif, had, like several of his predecessors, done that about a year earlier. In his address to delegates of 185 members of the UN General Assembly on 24th September 1998, Sharif charged India with failing in that commitment and denying the legitimate rights of the J&K people.
Probably one the most shameful sentences written in Indian journalism was by Shekhar Gupta, Editor-in-Chief of The Indian Express. In his edit page column dated 5th August 2000, he alleged that India had deliberately betrayed its promise on that plebiscite. And there are a sprinkling of other by-line writers who also air that sentiment from time to time, albeit less deridingly.
What is sadder is that our national leaders have never really refuted the charge as loudly and clearly as to make the world get the message. Even in the UN General Assembly, we do what is euphemistically described as "disregard" or "ignore" Pakistan's charge of failing our commitment in the Security Council.
It's high time that India told the whole world at the top of its voice that the basic condition for holding the plebiscite under the UN Resolution has not been yet fulfilled by Pakistan. The UN had expressly recorded that the proposed plebiscite would come only after:
The same reasoning applies to Mountbatten's earlier-referred personal letter of to the J&K Maharaja after officially accepting the signed Instrument of Accession . What Mountbatten had said in that letter was quote " ... it is my Government's wish that, as soon as law and order have been restored in Kashmir and it soil cleared of the invader, the question of State's accession should be settled by a reference to the people unquote(Emphasis provided.). Has that soil been cleared of the invader as yet?
Now this business of "plebiscite" is itself a thorny, tricky issue.
First of all, the word "plebiscite" is not as clear-cut in meaning as is believed. Concise Oxford Dictionary defines it to mean "Direct vote of all voters of State on important public question; public expression of community's opinion, with or without binding force." ( Emphasis added ).
Another problem of a plebiscite in Kashmir would be the opposition it will certainly meet from organizations like the Jammu and Kashmir Liberation Front (JKLF) which have been agitating for an independent status for J&K State rather than for accession to either India or Pakistan. The UN Resolution have not provided for that option. Will a plebiscite on only two options not create a jehad?
Without these above dimensions being made explicit by the UN, Pakistan goes on harping on a plebiscite, believing that the word "plebiscite" is itself the mantra that will resolve the J&K problem.
On the Indian side, while the politicians of all hues have never publicly discussed the word "plebiscite" for whatever reason, there are at least two authoritative and supreme judicial opinions against the very concept of a plebiscite in the State of Jammu and Kashmir.
In his " Accession of Kashmir to India (The Inside Story)", MC. Mahajan, the former Chief Justice of India, states, "The document of accession is India's title deed to Kashmir. The Instrument of Accession did not give to the Dominion of India any power to barter the future of the State. As such it would seem that the undertaking given at the floor of the Security Council is wholly ultra vires the Indian Independence Act (of the British Parliament) and the constitutional powers of the two Dominions." (For another quote of Mahajan on the subject see Appendix III on "The Plebiscite Virus".)
As matters stand today, the Indian Republic's relations with the State of Jammu and Kashmir continue to be governed by the stipulations of the Instrument of Accession. Proof of this lies in the fact that, as permitted by clause (7) of that Instrument---reproduced in Appendix I (i) --- Jammu and Kashmir has its own, separate Constitution (See Appendix IV). Therefore, a public interest writ petition by an Indian citizen could well prevent the Government of India from agreeing to a plebiscite on Kashmir on the ground of being ultra vires as observed by Mahajan above. And remember that, according to a Supreme Court judgement of 1954 (Virendra v. State of U.P.), "the act of the execution of the Instrument of Accession by the Ruler and its acceptance by the Governor General are both Acts of State into whose competency no Court can enter."
Even greater complexity lies in Justice Anand's opinion that "To hold a plebiscite in one component of the Indian Union implies the possibility of secession; the Indian Constitution does not permit secession." He also points out to Article 253 of the Constitution of India which lays down that "no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the Government of that State." Would even the most unfriendly State Government in Srinagar give such a consent? Would it, considering the tertiary treatment given for so long to Indian Muslims who went to Pakistan during the Partition? Would it, considering the bitter Sunni-Shia rivalry in Pakistan? Would it, considering the weak Pakistani economy's almost perpetual dependence on foreign doles?
Even if a government in Srinagar wanted to give the necessary consent under Article 253, it would be blockaded by the State's own, written Constitution wherein Section 3 lays down that "The State of Jammu and Kashmir is and shall be an integral part of the Union of India." What's more, Section 147 of that Constitution prohibits any amendment of that Section 3! That is why Justice Anand says that "to hold a plebiscite would be repugnant to the Constitutions of India and Kashmir". In essence, this means that any proposal for a plebiscite in Kashmir would have to be preceded by the abrogation of the present Constitution of Jammu and Kashmir, 1956!! That act would require a mutiny unchecked by Delhi. Is that at all within the realm of possibility?
Incidentally, considering the democratic rights, considerable autonomy and financial largesse being enjoyed by the State of Jammu and Kashmir under the Indian dispensation as against the marginalisation of people in the Pak Occupied Kashmir, the ethno-religious extremism in Pakistan and that country's fragile economic position, it may well be a Himalayan blunder for Pakistan or its supporters to believe that a plebiscite in Kashmir would go in its favour today.
However, there are a few in India itself who see a contradiction in India's reluctance for a plebiscite in J&K now when it had accepted plebiscite in Junagadh in 1948 after the Muslim ruler of that Princely State had legally acceded to Pakistan. This misconception arises from half-knowledge about the post-independence developments in Junagadh.
The fact of history is that the predominantly Muslim National Conference Party of J&K had backed their Hindu Ruler's accession to India --- there was no dispute there among the State's subjects. In contrast, Junagadh's accession to Pakistan soon caused 100,000 Hindus to flee the State. Clearly there was much more than a dispute there --- there was positive resentment. Mountbatten therefore proposed a plebiscite and he believed that Liaqat Ali Khan, Pakistan's Prime Minister, had accepted it. On 21st October 1947, the latter said that there was a misunderstanding on the issue.
On 27th October 1947, Bhutto, the Dewan of Junagadh, wrote to Jinnah describing the disastrous consequences following the State's accession to Pakistan. On 31st October 1947, the same Dewan wrote to the Secretary of Pakistan Government's Ministry of Foreign Affairs and Commonwealth Relations saying that the State's people were completely disillusioned. What had transpired was that, aided by the Princes of neighbouring States, the intense agitation of a voluntary organisation, Arzi Hukumat, created an economic blockade whereby traders refused to do business with Junagadh and the State's food stocks dwindled alarmingly.
Towards the end of that month, the Nawab of Junagadh fled by air to Karachi, bag, baggage and begums in tow. And on 8th November 1947, saddled with an administration that had come to a standstill, his Dewan officially handed over the reins of Junagadh to the Indian government. The referendum thereafter of 20th February 1948 was to put the people's seal of de jure approval on a de facto situation. That bit of history ended when 91 out of the 1,90,870 persons who exercised their franchise voted in favour of Pakistan.
Similarly, India baiters, including Indians, compare Pakistan's invasion of J&K to India's military action that enabled it to secure, in September 1948, the accession of the Princely State of Muslim-majority Hyderabad ruled by Nizam Mir Usman Ali. If we defend that military action of ours, goes the argument, why should we be resenting Pakistan's invasion of the independent Princely State of Muslim-majority J&K? That question is also based on less than half-knowledge of events.
Over 85 per cent of the Hyderabad's population in 1947 was Hindu. The Nizam wanted to be an independent member of the British Commonwealth. India offered referendum. The Nizam refused, biding time with signing a Standstill Agreement on 29th November 1947. He appointed a Pakistani as President of his executive council, restricted export of all precious metals from Hyderabad to the rest of India, and declared that Indian currency was not legal tender in his State. He appointed a PRO in Karachi without reference to Government of India. He secretly loaned Rs 20 crores to Pakistan in the form of Government of India securities. He gave a free hand to one Qasim Rizvi and his militants --- the Razakars --- to loot and kill Hindus. Soon enough, the Razakars ruled by day and the Communists by night in the border districts of Hyderabad, compelling Madras to seek military aid from the Indian government.
India continued to try reach a compromise settlement short of accession but the Nizam wanted freedom in trade, economic and fiscal matters. He requested the President of the USA, no less, to intervene and in August 1948 let a Hyderabad delegation presents its case before the UN Security Council.
The J&K Maharaja had done absolutely nothing of the above or its kind to Pakistan. Moreover, J&K was on Pak's border while Hyderabad was the ulcerated belly of India. Therefore, Pakistan's invasion of J&K in October 1947 was as much unjustified as was justified the Indian Army's two-pronged march into Hyderabad on 13th September 1948.
To complete the record, the Nizam's army surrendered after four days. On 23rd November a year later, the Nizam issued a firman accepting the Constitution of India as the Constitution of Hyderabad.
While Sardar Patel bore the brunt of dealing with the insolent and intrepid Nizam, Nehru is believed to have been anxious not to annoy that eminent Muslim and thereby hurt the feelings of the entire Muslim community. After all, he was a "secularist", wasn't he?
To know how Nehru nurtured the Plebiscite Virus in J&K itself read Appendix III.
"Self-Determination"
In the Introduction to his book, Justice Anand says "The problem of Kashmir has been discussed in great detail before various international forums but ... there has been a remarkable dearth of reference ... to the Constitution of Jammu and Kashmir." He believes that it is because of the considerable international controversy concerning the State that the creation and content of its Constitution remains almost under eclipse.
If it had been otherwise, we would not have had demands for deciding the future of J&K State through "self-determination" by its people.
The fact is that there very much exists a document called "The Constitution of Jammu and Kashmir". That Constitution was established on 17th November 1956 and it came fully into force on 26th January 1957. That Constitution was debated, drafted and declared by a Constituent Assembly. That Constituent Assembly comprised representatives elected by the people of J&K on the basis of direct and secret universal adult franchise (not less than 21 years of age) exercised in territorial electoral constituencies of a population of 40,000 or near it; each such constituency elected one member to the Constituent Assembly. The elections to the Constituent Assembly were completed in by August 1951 and the first meeting of that Assembly was held on 31st October 1951.
At that meeting, Sheikh Abdullah --- till date the tallest leader of J&K --- in his opening address declared that one of the main objects and functions of the Constituent Assembly was to declare its reasoned conclusions regarding the accession and the future of the State. He enumerated three alternatives: accession to India, accession to Pakistan or complete independence.
Which of those three alternatives did the Constituent Assembly decide on? Its Drafting Committee Report, adopted on 15th February 1954, embodied the ratification of the State's accession to India.
The J&K Constitution itself went on to enshrine, in its Section 3, the words "The State of Jammu & Kashmir is and shall be an integral part of the Union of India." What's more, the Constitution's Section 147 prohibits amendment of that unambiguously worded Section 3.
Lastly, the J&K Constitution's Preamble begins with the following words:
"We, the people of the State of Jammu and Kashmir, having solemnly resolved, in the presence of the accession of this State of India which took place on the twenty-sixth of October 26, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof ... ."
All of the above happened after five years of debate; it happened without any political or people's agitation against it.
Hence the irrefutable conclusion that the people of J&K decided their future status in November 1956 itself through a proper, democratic process of "self-determination"; their State's accession to India was endorsed irrevocably in November 1956 itself by the democratically expressed "wishes of the people".
Even after the J&K Constitution started functioning, there was no revolt or agitation against it by the State's political leaders or its people. With the concurrence or in consultation with the ruling State establishment (as demanded by Article 370 of India's Constitution), dozens of laws of the Indian Parliament had come to be made applicable to J&K by the time March 1957 came for the first Legislative Assembly elections under the provisions of the new Constitution of the State. The preparation of electoral rolls for those elections and the conduct of those elections was under the supervision, not of the Government of India, but of an Election Commissioner appointed by the State's Sadar-i-Riyasat (later designated as Governor). Every permanent resident of the State, male or female, of the age of 18 years or over, who had not been disqualified because of unsound mind or for any crime committed, had the right to vote. The polling percentage in those elections was 62.1 per cent!
In short, whatever the views of Pakistan or of some media sceptics of our own, J&K State in 1957 was continuing on the very path charted by the self-determination of its people, by the "wishes of the people" that had approved the accession to India signed by their Maharaja a full decade earlier. There was absolutely nothing more to be done in that direction then; nor is there need to contest the validity of that path today.
What does need elaboration is the UN Security Council's perverse view of the J&K's Constituent Assembly and its utter indifference to the significance of the State's Constitution even as it merrily meandered in discussing the "future status of the State of Jammu and Kashmir."
The Security Council Resolution of March 30, 1951 made two critical observations with regard to the formation of the Jammu and Kashmir Constituent Assembly. In the third paragraph of that Resolution, the Council observed that "the area from which" the proposed "Constituent Assembly would be elected is only a part of the whole territory of Jammu and Kashmir." The covert criticism herein was that the Pak Occupied Kashmir (christened Azad Kashmir by Pakistan) was excluded from the proposed elections and that, therefore, the polls were not universally representative. Notable here is that the UN was frowning at a perfectly acceptable democratic process in Constitution formation rather than seizing it to prevail upon Pakistan to let all the eligible Kashmiris in the territory held by it to also take part in that democratic process.
In any case, it was not the Yuvraj of Kashmir's fault if elections to the proposed Constituent Assembly excluded the territory held by Pakistan despite the Security Council requiring it to vacate that territory. As James P. Fergusson stated in his book "Kashmir:an historical introduction" (1961), " It was the whole State of Jammu and Kashmir that had acceded to India, and although some regions had broken away, they had done so illegally, and their illegal action could not confer any right on Pakistan."
The constitutional refutation of the Security Council's oblique criticism comes from Justice Anand. He states that "The area of Azad Kashmir is de jure part of the territory of the State of Jammu and Kashmir. The Constituent Assembly visualised the possibility of that area being vacated by the aggressor and in anticipation of that, it provided in the Constitution of Jammu and Kashmir that 'twenty-five seats in the Legislative Assembly shall remain vacant' till the area of the State under the occupation of Pakistan ceases to be so occupied and the people residing in that area elect their representatives." (Section 48)
It must therefore be accepted that by conducting polls in 75 out of 100 possible electoral districts on the basis of 40,000 population per district, the Yuvraj of Kashmir did make a laudable and giant thrust in his objective of getting a democratically formulated Constitution for his State. Should the UN have welcomed it or turned against it as it in fact did?
In this connection it is relevant to note that the idea of convening a Constituent Assembly for Jammu and Kashmir State was conceived even before the partition of India was contemplated, and the idea would have been implemented earlier but for the invasion of the State by the tribesman from Pakistani territory. When in 1948 the National Conference Party formed the interim Government in the State, it was expressly declared that, as soon as normal conditions were restored, steps would be taken to convene a National Assembly based on adult suffrage to frame a Constitution for the State.
When, even three years after that proven invasion by tribesmen from Pakistan, the conditions had not returned to normal, the General Council of the All Jammu and Kashmir National Conference --- the foremost political party in the State --- passed a resolution on October 27, 1950 stating: "We view with great concern the repeated failure of the United Nations to redress the wrongs of aggression of which the people of the State continue to be victims. The failure, in its opinion, is due to the continued concessions given to Pakistan by placing a premium on her intransigence. The time has come when the initiative must be regained by the people to put an end to this drift and indecision." The resolution therefore went on to recommend to the Supreme National Executive of the people (the Yuvraj of Kashmir) "to take immediate steps for convening a Constituent Assembly ... embracing all sections of the people and all the constituents of the State for the purpose of determining the future shape and affiliation of the State of Jammu and Kashmir." The objective was that "In this sovereign assembly embodying the supreme will of the people of the State, we shall give ourselves and our children a Constitution worthy of the traditions of our freedom struggle and in accordance with the principles of New Kashmir".
Despite those most democratic and noble intentions of the proposed Constituent Assembly, the fifth paragraph of the Security Council Resolution of March 30, 1951 had the gall to make its second inexplicable observation on the exercise. It said therein that "any action that the (Constituent) Assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle" ("of a free and impartial plebiscite").
That decision of the Security Council must be considered as one of history's most shocking blows to democratic tenets. Here was the world's most powerful coterie of nations deciding that the will of a people is better determined by a spur-of-the-moment vote in a plebiscite (with all its imponderable dangers of a close finish) than by a well-considered and enduring debate in the people's duly-elected Constituent Assembly. That Security Council decision was not only shocking and perverse but also callous. Despite its utter failure in getting Pakistan to vacate invaded territory even three years after what the Council itself had in its first Resolution recognised as a situation of urgency, the Council chose to believe that, of the four million and odd people who constituted Jammu and Kashmir's population at that time, some three-fourths should be left to wallow in an uncertain future, in an uncertain ambience of continued suspended animation, while the remaining one-fourth stayed as isolated captives of the original invaders.
Tragically, a document indicates that even the Government of India -- led at that time, remember, by Jawaharlal Nehru -- succumbed to the Security Council's obnoxious opinion. Rajeshwar Dayal, India's representative at the UN, is reported to have assured the Security Council on May 29, 1951 that "as far as the Government of India is concerned, the Constituent Assembly for Kashmir is not intended to prejudice the issue before the Security Council."
Ironically, that same Rajeshwar Dayal, 47 years later, said in a signed article in TheTimes of India, Mumbai , of July 30, 1998, that the principle of self-determination cannot, according to accepted UN doctrine, be applied to areas within a state but only to colonial situations. A classic case, this, of being wise after the event.
Rather than Pakistan's aggression, the Security Council would appear to have been overly concerned with the legality and validity of Kashmir's accession to India. Hence, its emphasis on "plebiscite" as the solution. It unwittingly exposed itself to this accusation when, by its Resolution of January 5, 1949, it laid down in paragraph 3 (a) that the proposed Plebiscite Administrator would be formally appointed to office by the Government of Jammu and Kashmir and that, as laid down in paragraph 3 (b), he would derive his powers from the State of Jammu and Kashmir (which includes, the area in the hands of tribesmen). It was all too apparent by this Resolution that the Security Council considered the State of Jammu and Kashmir as an independent entity despite its legal accession to India as per the Indian Independence Act of the British Parliament. It was all too apparent that the UN was challenging the sovereign decision of the Ruler of Kashmir and trying to play the super democrat god to the Kashmiri people. It was all too apparent, finally, that the Security Council had sidestepped India's complaint and instead leaned on Pakistan's counter accusation that India had attempted to undo the partition scheme and acquired Kashmir's accession by fraud and violence.
In conspicuous contrast, there was no retribution whatsoever for Pakistan over the finding of Sir Owen Dixon who, by virtue of the Security Council's Resolution of March 14, 1950, was appointed "to exercise all of the powers and responsibilities devolving upon the United Nations Commission for India and Pakistan." Sir Dixon had observed that "When the frontiers of the State of Jammu and Kashmir was crossed by hostile elements, it was contrary to international law and when, in May 1948, units of the regular Pakistan forces moved into the territory of the State, that too was inconsistent with international law." That castigation was just ducked by the Security Council and dumped into oblivion.
That castigation has also not figured in our journalists' repertoire of questions when they have interviewed the despicable lot of Salahuddin and Ali Shah Geelani. When those henchmen of Pakistan say that a third of J&K is in Pak's possession and therefore India must talk to Pak, the Indian's most obvious question should be; "But hasn't Pakistan in the first place been in illegal occupation of that territory--- in violation of the UN Resolution and Dixon's opinion?" But that question is never asked and, as a result, India's case gets one more nail in its coffin.
For rationale and bare substance of the present J&K Constitution, see Appendix IV.
The Way Out
Even a decade after Pakistan continued to sit tight on some one-third of the J&K territory it illegally invaded in October 1947, Section 4 of the J&K State Constitution chose to say "The territory of the State shall comprise all territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State." And forty-three years after the State's Constitution came into force, that Section 4 has not been amended, successive Legislative Assembly elections continuing to reserve 25 seats for the areas that Pakistan ill-acquired. Clearly, hope exists that somehow, some time, Pakistan will return that large chunk of stolen property to India and J&K.
Why, the Indian Parliament itself passed a resolution in February 1994 to the effect that recovering the Pak-occupied area of J&K was the nation's unfinished task.
As late as 5th January 1999, Times of India, Delhi , reported Prime Minister Vajpayee as saying, "India will ask Pakistan to give up Pakistan-occupied Kashmir prior to any negotiations".
All the above three pronouncements seem the stuff that dreams are made of. There is simply no conceivable way in which Pakistan will ever return to us what belongs to us.
Even if the fierce and fundamental forces on its borderlands of North-West Frontier Province, Baluchistan and Sindh lead to Pakistan's disintegration --- as per the picture painted by the world's leading reporter in the region, Robert Kaplan, in the September 2000 issue of The Atlantic Monthly --- there seems absolutely no way in which we will get back what is ours. China's hegemony will ensure that.
In almost a twinkle after Pakistan withers away as a State, China will expand its existing hold on the 2050 square miles of J&K which Pakistan officially conceded to it in February 1963 while India sat dumb and impotent. For all you know, China, presently a pal of Pakistan, will aid and abet its dissolution when it sees the slightest chance of pocketing what would be the giant skullcap on India.
Nor can India get back the Pak-occupied Kashmir by force without risking a nuclear war with a neighbour that is neurotic in its pursuit of Islamic jehad. It is, of course, a different matter that India is too soft a nation to resort to force in the first place --- our history is proof of that.
We are then veritably in a quicksand --- the J&K quicksand. We ourselves created it by supplicating to the UN Security Council in January 1948. Now, in January 2001, we are left on our own to extricate ourselves from it, breathless and exhausted.
Our toughest task now is to pull of it forever, to reach out for the safety of being left alone, undisturbed, to clean and recharge our limbs and lungs ravaged by years of struggling to keep afloat the sucking pit. We need to keep Pakistan off our backs forever. We need to concentrate instead on revamping the governance in J&K and on rapid economic development of its people.
Several ideas have been put forth towards that objective.
There is the proposal mooted by Rajeshwar Dayal, former Secretary in our external affairs ministry. Writing in The Times of India, Mumbai , of 30th July 1998, he advocated a "provisional agreement" with Pakistan whereby each other's interests are harmonised while sidestepping the issue of sovereignty. He suggests that India's offer of a no-first-use nuclear pact and Pakistan's proposal of a no-war agreement could be combined. Pakistan's tourists could be allowed into J&K and similar confidence building measures could be packaged for immediate implementation while the J&K issue itself could await settlement till relations are restored to normal. It is a typical bureaucratic proposal, merely confusing issues and avoiding finality.
Brooking Institute of the USA has made a similar and equally nebulous proposal. It conceives of an autonomous J&K entity with its external affairs, defence and communications being handled jointly (sic) by India and Pakistan. A more scatterbrain scheme than this seems improbable.
What about a plebiscite now in the whole of J&K as it was at the time of its accession to India? The legal arguments against a plebiscite have been spelt out earlier in this commentary; a public writ petition challenging the decision of holding a plebiscite to determine the status of J&K State will be shot down by our courts in no time.
Then there's the way out suggested by Shekhar Gupta, editor-in-chief of The Indian Express . In a signed article in his newspaper in July 1998, Gupta had asked the nation to seriously consider a settlement on the basis of the existing LOC that divides Pak-occupied Kashmir from the rest of the J&K State. Gupta has subsequently reiterated the view, convinced that the politicians know, in their heart of hearts, that the LOC as the new international border was the only agreement that was possible under the circumstances.
Farooq Abdullah, Chief Minister of J&K State, has also more than once backed this proposal. However, for reasons not made clear, L.K.Advani, India's Home Minister, ruled out the idea in early January 2001.
Now there's no doubt that unconditional acceptance of the present acceptance of the present LOC as the new international demarcation between India and Pakistan would be a demeaning rebuttal of all that India has been arguing for over half a century about J&K being an integral part of India.
There is, though, a way in which the LOC proposal can be made acceptable without adversely affecting India's legal position and self-respect. That is to make the agreement subject to (i) Pakistan paying a compensation or war reparation --- call it what you will --- of US $100 billion and (ii) its enforcement for a period of five years by a UN force adequately armed to kill intruders from either side. Whether Saudi Arabia or the entire Organisation of Islamic Countries or anyone else finances Pakistan to pay the compensation to India should not bother us. It would be a miracle, though, if Pakistan accepts this proposal.
The other option is to launch an aggressive diplomatic offensive as recommended by Lt.General Chandra Shekhar. Participating in a discussion in New Delhi on 4th September 1998 in New Delhi, the then Vice-chief of our Army Staff lamented that "Our point of view is not being effectively projected. We need to aggressively convey our point of view." He pointed out that there had been considerable distortions of historical facts abroad "even though legally, morally and factually our position is strong."
The bare content of the approach suggested by Lt.General Chandra Shekhar can be gleaned from what's already been stated in this commentary. What it requires is precise documentation and imaginative dissemination through professional means of global communication strategy. Such a belated drive would still help plug what has been a monumental lacuna in our international diplomacy on J&K right from 1947. Even at this stage it could well work in influencing world opinion in our favour.
Witness, as an example, how world opinion has now centred on accepting Pakistan's role in generating terrorism. It has been the result of a change in the course of our national discourse as suggested by M.D.Nalapat, a senior editor of The Times of India . In his article in that paper of 5th September 1998, Nalapat had advocated that New Delhi alter the context of J&K being a "dispute" between India and Pakistan to that of an Indian state becoming a theatre of cross border terrorist operations and as a fundamentalist war by a religious country against a moderate, secular one.
Similar success for our diplomatic offensive based on our "legally, morally and factually strong position" may admittedly take time to yield results. But it would be worth the effort, especially if it is combined with sustained exposure of the way even minimum democratic rights are being trampled upon in Pakistan-occupied Kashmir. In any case, the approach is infinitely better than capitulating to demands from everywhere to evolve some compromise with a blatant and unrepentant aggressor who is trying to bleed us through and through with a thousand cuts.
Even as the new diplomatic offensive is launched, India must scale up its drive against the terrorist menace in J&K to a war footing. This can be done only through
Vital Socio-Economic Statistics of J&K State
Socio-Economic Indicator Measure Comparative Status of J&K
The plaint of Jammu and Ladakh may well be exaggerated. However, it does point to another urgent need viz. the establishment of a J&K Grievances and Redress Cell with tenure of five years. Such a cell should comprise seven members from the Rajya Sabha -- a member each from the five leading parties securing the highest polling percentage in the last Lok Sabha elections, and two Independents --- all to be appointed by the President of India in consultation with the Vice President (who is ex-officio Chairman of the Rajya Sabha) and the Prime Minister.
While the manner of functioning of this Grievances and Redress Cell must be left to its own wisdom, its overall responsibility must be clearly stipulated to ensure (i) a network of well-dispersed centres for receiving and recording of people's grievances (ii) frequent interaction and follow-up with panchayat, municipal, police, district and state-level authorities to redress the grievances. Further, this Cell's unanimous recommendation should be essential before any Union Government grant outside the Finance Commission norms is given to the State government.
The above objective will be facilitated by a full-fledged Doordarshan Channel devoting ample coverage every day to the public airing of grievances and discussion of ways in which they can be redressed. Akashwani must also be asked to do the same. It would be excellent if private media lend their considerable weight to this exercise.
Indeed, the Indian media as a whole have a crucial role to play in J&K. They must not only entertain the public but also keep them constantly informed about happenings in their own State, in the rest of India and in the world beyond, including the poverty and Talibanisation of the whole of Pakistan.
Equally importantly, these various media will have to create an awareness among the people of J&K that their prosperity simply does not lie in a predominantly agricultural economy (that is backward moreover), and on the tourism industry. They must be made aware that even Switzerland is a rich country not because of mere tourism, but because it has several world-class industries: watch making, cheese, confectionery, pharmaceuticals and engineering. What must be driven home to the people of J&K is that their State must necessarily have a modern agriculture and a modern economy including hi-tech units.
It is when the last message sinks in that the people of J&K will realise the need to let the Ambanis, the Tatas, the Birlas, the Infosys and the Wipros to acquire at least limited property in the State. That right to acquire immovable property in J&K has been till now prohibited by State legislation enacted in consonance with some exclusive rights reserved for the entity known as the State's "Permanent Residents" in the J&K Constitution. If given the right to own at least a limited quantum of property, India's leading industrial houses can be expected to take active interest in setting up business ventures in J&K.
Once the demonstration effect of permitting select industries or businesses to set up shop in J&K percolates downwards in Jammu, Ladakh and Srinagar, the people of J&K could well gradually realise thereafter that the so-called special status given to the J&K State under Article 370 of the Indian Constitution has been a mirage. The road to its abrogation will be cleared of the acrimony presently engulfing it. Full social, economic and emotional integration of J&K with the rest of India will become a natural next step with the abolition of that piece of anomaly in our Constitution.
To summarise, the recommended road map to peace and optimism in Jammu and Kashmir State will entail the following:
It is conceded that what is recommended here means that the Indian nation has a long, arduous haul ahead in J&K. But getting out of a pool of quicksand has never been easy, has it?
Author's Name & Address:
ARVIND LAVAKARE
Jariwala Building, 1 floor
29 Mahalaxmi Mandir Lane
Mumbai 400 026
Telephone: 494 3935
E-mail:
ashlava@bom5.vsnl.net.in
12-Jan-2001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| All materials on this website are © 2000-2010 |
Printer Friendly Format
|
Search this website | top |