Last month, the government of Pakistan let slip a statement post an event which we call surgical strikes and Pakistani establishment, displaying commendable diplomatic maturity, chose to describe as ‘ceasefire violation’. The Pakistan spokesperson spoke about the death of two Pakistan soldiers and injuries to several others in the incident which occurred, as per both versions, near the Line of Control (LoC) in Jammu and Kashmir. Not many took the reference to Pakistani soldiers as anything special. More importantly, no one saw it as a very unusual though unintended admission of guilt by the Pakistan government — an admission that the Pakistan establishment, particularly its army, had constantly flouted the most important provision of the 1948 UN Resolutions on J&K, the very Resolutions which Pakistan alone has for over 50 years been asking India to honour. The first clause of these Resolutions of 1948 stipulated that there must remain no Pakistani soldier or even national on the soil of J&K, including in the part now held by Pakistan. Then what were these soldiers, killed or wounded in the Indian action, doing there?
This question does not even surprise anyone in New Delhi, Islamabad, Srinagar or Muzaffarabad. Therefore, let’s consider why it should have. For that we need to have a close look into the J&K conundrum — so that we can look beyond it. The solution of Kashmir problem does not lie in Kashmir – not any longer.
To begin with, those in both India and Pakistan who believe that the two neighbours must learn to live as loving and trusting neighbours capable of helping each other like the people of no other two nations can, must now take the bull by the horns and take an initiative away from their governments for a heart-to-heart and open-ended discussion on every issue between the two countries, including the question of Jammu and Kashmir. It is not necessary for either side to agree entirely with the other on the diagnosis of the disease that is eating into the vitals of both nations. But is time to work towards a prescription based on whatever is common between the two diagnoses. In all likelihood, we will differ.
But what friends in India and Pakistan need to agree on is the need never to lose patience with each other, listen to each other’s point of view with sensitivity and respect and then to keep moving forward — maybe a millimetre at a time — towards a final resolution of all issues that stand the way of friendly and mutually beneficial ties between the people of the two countries. We must learn to dispense with hate factories chugging along on wheels of virtual motor-mouths — the Zaid Hamids, the Arnab Goswamis ready to pounce upon any fluttering of doves of hope and love. Even peaceniks will differ on diagnoses and prescriptions but they must persist with each other and keep working on the patient.
Let us open with a few questions — upfront and eyeball-to-eyeball.
In 1948, what did then prime minister Jawaharlal Nehru refer to the UN — the Kashmir issue or the attempt by Pakistan to solve it through military aggression? What language and diplomatic periphery did he choose for himself while presenting his narrative?
Two: Does Pakistan have a locus standi on Kashmir if challenged on its own favourite battleground — the UN Resolutions and the plebiscite question? Did the UN make a unilateral and unconditional proposition to Pakistan following Nehru’s offer of a plebiscite to determine the fate of the Instrument of Accession of Jammu and Kashmir with India? Or what terms, if any, did the UN lay down before Pakistan for acceptance of Nehru’s offer or were there some strings, some terms and conditions attached to the UN offer to Pak? Did Pakistan meet those terms and conditions?
Three: Can Pakistan even today sincerely and seriously follow its bluster on UN Resolutions to its logical conclusion and accept the UN resolutions? Did Pakistan accept in 1948-49 the Indian offer of plebiscite in its entirety for a final settlement of the Kashmir issue in its entirety or did it insist merely on India doing what Pakistan wanted without any legal and political collateral by on the ground?
Four: There were cases on both sides where the federal authority of the Dominion was faced with an open resistance to accession. Did India or Pakistan take the plebiscite route as a legitimate option to solve accession, annexation or merger problems with any of the states in their areas of influence other than J&K? Why does plebiscite acquire such inviolate sanctity in the case of J&K alone?
Further, is there anything India needs to fear by a refer-back to the same old UN Resolutions?
My answer to all these questions is a categorical and resounding NO. No, Nehru did not ask the UN to resolve the Kashmir issue: he merely requested UN attention to stop what he described as Paksitan’s armed aggression “against India in Jammu and Kashmir”. (Not against J&K, but against India in J&K — I repeat.)
And no, Pakistan does not have a locus standi on the issue of J&K. Whatever thin thread existed to tie them morally to J&K was snapped by the Pakistan rulers themselves one very fine April afternoon 1948 in Karachi.
No, plebiscite route was never even considered by either of the two dominions or the UN to resolve any other issue of similar nature.
And No, India has nothing to fear from a harkback to the same old UN Resolutions. Pakistan is in no position to seriously and sincerely pursue its own bluster on these Resolutions to the logical end.
There are cool and elaborate reasons for each one of these answers.
Plus, there is also the issue of Pakistan’s ambivalence on the role which it envisages and claims to envisage for the people of Kashmir in “a final settlement of the conflict. The Kashmiri people perhaps don’t even know, much less realize, how they have been repeatedly stabbed in the back by Pakistan at almost every step in the journey towards a resolution of the issue. In the Shimla Accord, for example, Pakistan signed the Kashmiris out of relevance as a party to the dispute when Bhutto put his signatures on the clause which commits Pakistan never to allow the inclusion of any third party in efforts to resolve the Kashmir issue — the third party here being none other than the people of Kashmir, because no other third party — not even China — had ever intervened on Pakistan’s side even in the extreme holocaust of Bangladesh’ dismemberment in 1971.
Contrary to popular belief, Nehru’s government never asked the UN to adjudicate on the future status of J&K. It was very categorical in what it was asking the Security Council to act upon. The Indian complaint requested the Security Council (quote) “to call upon Pakistan to put an end immediately to aggression against India.”
Beyond this, the Government of India never sought any relief from the UN. India made it clear that it had sent its military to defend “India against external aggression in J&K which is a state of the Dominion of India.”
India emphasized that it had turned to the UN only “after the state had already acceded to India”. Therefore, the issue before the UN was not the accession of J&K to India but the external aggression on India by Pakistan.
The question of referendum came up not as a condition laid down in the UN resolution but as an offer by the government of India only after the state had been cleared of the invader — Pakistan. “The Government of India made it clear that once the soil of the State had been cleared of the invader and normal conditions restored, its people would be free to decide their future.” Since then, governments of Pakistan have been engaged in trying to put the cart before the camel — plebiscite before Pakistani withdrawal.
In fact all through the 1950s and ‘60s, Pakistan never agreed to a plebiscite even in the presence of its armed men. It has always been suspicious of what many in Pakistan’s social, economic and military elite call “the ungrateful mentality of those whom Pakistan feeds and who turn around to sting it on the wrist.” The Sindhis, the Afghans and the Balochs are quoted as the other examples of “ingratitude towards Pakistan.” A very senior official of Paksitan’s Foreign Service recently went to the extent of describing the Pashtuns and Balochs as “ungrateful ba***ards.”He was speaking on one of the premier news channels in Pakistan and the programme was being aired live. It stays in its un-edited form on YouTube.
Besides, knowing Nehru as well the world knew, the plebiscite offer was seen more as an expression of Nehru’s known wish for moral legitimacy for his political actions than a condition imposed on him by the UN.
Significantly, there is nothing in the Instrument of Accession which commits India to a referendum. Nor is there anything even vaguely conditional in the acceptance of this Instrument by the then Governor General of Indian, Lord Louis Mountbatten on October 27, 1947. The accession of J&K to India was thus completely unconditional.
INSTRUMENTS OF ACCESSION
Similar Instruments of Accession were secured by the then Governments of India and Pakistan from states that fell under their geographical area of influence. In none of these states or principalities was referendum held nor accession made conditional on the referendum or plebiscite.
In fact, Pakistan is on a very weak ground here. There is a strong view that Pakistan did not even wait for any formal Instrument of Accession from Balochistan before annexing it militarily. The ruler of Kalat seemed unwilling to accede to Pakistan. He feigned illness and referred the matter to the equivalent of our Lok Sabha (Dar-ul-Awam). But the House rejected the proposal for accession. Without waiting any further for any formal or legal niceties or courtesies to be observed, Jinnah ordered Pakistan troops on 26 March 1948 to forcibly annex the Baloch coastal region of Pasni, Jiwani and Turbat prior to the military march on Kalat. Thus, contrary to the Accession of J&K to India, the annexation of Balochistan by Paksitan has no legal, diplomatic or political sanctity.
This issue is brought up here merely to highlight how Pakistan’s “diplomatic morality” on J&K has no moral, constitutional, legal, political or diplomatic underpinnings of honesty or faith. Barring Punjab, no region of the present day Pakistan can afford a referendum on whether it wishes to stay with Pakistan or not.
The implementation of the UN resolutions on Kashmir is subject to conditions which Pakistan has neither ever fulfilled nor is in a position to fulfill even today. The first part of the UN Resolution directs the two parties to “to create proper conditions for a free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan.” In Part “A” (Restoration of Peace and Order), Clause 1 asks “the Government of Pakistan to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the State for the purposes of fighting, and to prevent any intrusion into the State of such elements and any furnishing of material aid to those fighting in the State.” That has not been done TO THIS DAY.
The Indian complaint to the UN also lays down the same precondition.
Even more significantly, the UN has never questioned the genuineness or validity of the Instrument of Accession of the state to India. If it had, then it would have directed India to withdraw completely from the state, as it had directed Pakistan. While Pakistan was asked to withdraw COMPLETELY from J&K, India was merely asked “to reduce its forces to an extent which was considered necessary for ensuring law and order.” India can justifiably argue that normalcy has never been allowed to prevail by Pakistan and therefore the first requirement for holding the plebiscite has never been met. This is not a jingoistic argument but one that even impartial and fair-minded friends from Pakistan too will never contest.
Three other things deserve significant attention. One, the UN resolution speaks of a plebiscite in the entire state of J and K, and not just in the Indian part of it? Two: it covers not just the Muslim population but also the Hindu population of both the valley and the Jammu region as well as the non-Muslim population of Ladakh and Baltistan. Three, it snubbed Pakistan’s efforts towards securing a referendum in only select parts of J&K, and not in the entire state. In fact, the UN resolution mandates that even the people who had left the state for whatever reason since 15 August 1947 must be allowed to return and settle down under conditions of normalcy before the next step can be considered.
Even if, for arguments sake, Pakistan agrees to fulfill these two conditions, it is in no position to fulfill a third: vacating the entire state of Jammu and Kashmir including not just the areas now under Pakistan’s control but even those it has ceded to China. How Pakistan proposes to do that to fulfill the pre-condition for a referendum is anybody’s guess. But in the absence of these conditions, Pakistan has no moral, legal or political locus standi in Jammu and Kashmir.
Whatever remained of Pakistan’s case on the J&K was compromised by a development which Pakistan has been denying but which completely and irrevocably altered the ground situation under which the UN resolutions on plebiscite could be considered for implementation.
On 28 April 1949, the Pakistan government reportedly worked out a secret agreement with what it chose to describe as Azad Jammu and Kashmir (AJK) government. This Agreement is now documented and known as Karachi Agreement on Kashmir. It was signed by Mushtaq Ahmed Gurmani, Pakistan’s Minister Without Portfolio, on behalf of Pakistan, Sardar Mohammad Ibrahim Khan on behalf of ‘Azad Kashmir” (PoK) and Chaudhry Ghulam Abbas, head of Jammu and Kashmir Muslim Conference. The agreement was kept under wraps until it was revealed in the Verdict on Gilgit and Baltistan (Northern Area) by the High Court of Azad Kashmir in the 1990s.
Under the Agreement, the Pakistan government allocated to itself eight important matters including defence, negotiations with the UNCIP, foreign policy, currency, communications, publicity in foreign countries among others. This agreement also illegally separated Gilgit and Batistan from the PoK — against the wishes of the people of the region.
The Agreement, which makes nonsense of any UN role in J&K, was kept a secret for several reasons the most important of which was that this was in sheer and brazen defiance of the UN Resolutions. Even to this day, there is no such entity as Azad Jammu and Kashmr in the eyes of the UN. The entire area had to be vacated and placed directly under UNCIP and subsequently under the Plebiscite Administrator and the presence of even Pakistani nationals on the soil of J&K was to be treated as a violation of the relevant UN Resolution.
Even if you forget this Agreement for a while, Pakistan’s continued and open references to Azad Kashmir themselves constitute a violation of the UN position on the issue which requires the restoration of the January 1948 position as the first and the most important condition for proceeding with the plebiscite. Nothing can be done in Kashmir so long conditions do not return to 1 January 1948.
But not even for form’s sake is Pakistan prepared to ensure that Azad Kashmir be scrapped and restored to J&K as it stood before 1 January 1948.
This Karachi Agreement on Kashmir had thus nullified the first condition for a plebiscite in J&K. But even if — for arguments sake — we presume that there has been no such agreement, the ground reality still speaks loudly of conditions mandated by the Agreement. It’s important to have a look at how sincere Pakistan has been both to the UN and to the people of “AJK”.
The so-called AJK comprises three parts: Baltistan, Gilgit and the rest of the Southern Territory controlled and administered by Pakistan. Pakistan describes Jammu and Kashmir on the Indian side of the LoC as Indian Held Kashmir (IHK) because India did not give to the Kashmiris the right of self-determination. Has the same right been granted to the people of AJK? Since Pakistan is in complete control of that part, what stops it from allowing the UN to conduct a free and fair plebiscite in that territory?
But why does Pakistan not do it? Pakistan government and the army know the answer. But it seems Indian diplomats do not. The fact of the matter is that the so-called Azad Kashmir is held with Pakistan on the point of army bayonets. The same is true of some other regions in Pakistan, including Balochistan and Baltistan. Even a Pakistani officer of the rank of deputy superintendent of police (DSP) ranks above the president or prime minister of Azad Kashmir. During the reign of Gen Ayub Khan, the late Azad Kashmir president KH Khurshid was humiliated by a mere DSP, forcing the former to resign and later be jailed in Palandari and Dalai Camp. During ZA Bhutto’s regime, a mere DSP of Pakistan held the elected President of AJK, Sardar Qayyum, by his beard before forcing him to resign just because Bhutto felt Qayyum had not shown enough courtesy in one of his communications to the Pakistan premier.
Prime Minister Nawaz Sharif actually went ahead to declare Azad Kashmiris as Pakistanis even without a referendum or Accession when he declared that he would give 12 seats to “muhajirs as a gift to AJK’s then premier Sardar Qayyum — and did that. Imagine this: Qayyum’s son Atiq, a Kashmiri belonging to Dherkot (Gaziabad) was elected as a muhajir from Karachi! Muhajir is almost a derisive expression in Pakistan for Muslims who have migrated from India to Pakistan after the partition of 1947. They are still regarded as second- class citizens of Pakistan.
Pakistan’s only official response to the UN demand for withdrawal of all Pakistani nationals and forces from J&K was to disband the Azad Kashmir Rifles Militia altogether and amalgamate it with Pakistani army, making AJK practically a part of Pakistan and totally dependent on it.
On the contrary, India never retracted from its position stated in the UN — until 1972, when the two countries officially committed themselves to bilateral approach on all issues including Jammu and Kashmir under the Shimla Accord, making the UN resolutions redundant by committing the countries.
Under the circumstances, it is natural for any neutral observer on J&K to ask Pakistan as to when was the last time the government of Azad Jammu and Kashmir ever interacted with any international entity including the UN and India? What is the foreign policy of Azad Kashmir other than the foreign policy of Pakistan? What is the currency and postal identity of Azad Kashmir other than the currency and postal identity of Pakistan?
Pakistan army’s complete control over what they like to call Azad Kashmir is the world’s worst kept secret.
All of this leads us to the question: how sincere are all the protagonists of a solution to the issue of Jammu and Kashmir? — the Indians who offered to hold a plebiscite, the Pakistanis who even after Shimla-1972 still insist on the UN resolutions on plebiscite, and the radical Kashmiri leadership in India which continues to speak a language of scrumptious confusion and uncertainty, asking India to respect UN resolutions but maintaining a silence on the presence of the Pakistani army right across the LoC in sheer defiance of the same resolutions? How can radical Kashmiri leadership on the Indian side justify the Pakistan tanks rolling in Muzaffarabad while objecting to the sight of military jeeps in Srinagar?
Its time to get real, leaving legalistic and moralistic shibboleths.
The Kashmiri leaders in India shy away from admitting that any solution to the problem will involve taking care of sensitivities of the people of both India and Pakistan, apart from the people of the state itself. It’s a volatile, high-stakes issue on which extreme sensitivities of all concerned merely add to the complexity of the problem.
Much water has flown down the Chenab bridges since India made the offer of plebiscite in Kashmir. The ground situation as well as the geography of the region has been irrevocably altered by the wanton gifting away of chunks of the sacred land by Pak’s rulers to their Chinese friends. Why must India alone be expected to remain consistent even after more than half a century of its offer, if everyone and everything around it is going merrily about their business of making changes to suit their desires and needs? Why must it act according to the wishes of its opponents at the time of their choosing in the manner of their choice? Is it not reasonable to tell Pakistan that it never had a case on Kashmir once it launched an attack on the Valley in 1948?
One could legitimately argue that even UN no longer has a case now in the presence of an international treaty agreement between two sovereign powers – India and Pakistan at Shimla in 1972. Besides, can even the UN secure the return the Kashmir territory which Pakistan has gleefully ceded to China?
Plus, there is substantial difference between India holding on to its part of the J&K and Pakistan doing the same to areas under its army’s control. One is a case of legitimate and constitutionally executed Accession while the other is a clear and brazen instance of military annexation.
Even without taking sides, it is not hard to see that as things stand, there is only one aggressor in J&K, and that is Pakistan. Neither India nor Pakistan can materially alter the geographical situation on the ground.
Morality apart, the only solution to the J&K tangle lies in the acceptance of the status quo by both sides, with the people of Kashmir on both sides being allowed something like the status of a constituent state in America. India and Pakistan can continue to keep defence and external affairs of the respective regions under their control but all other powers must pass on to the local governments in the East and West Kashmir. The partition of Kashmir, tragic as it would seem, is already a fact accomplished — a fact that can be altered only through a conclusive victory of one nuclear state over the other. And who knows what kind of impact the people of Kashmir may have to bear in such a ghastly event.
It is natural for any neutral observer to ask Pakistan as to when was the last time the government of Azad Kashmir interacted with any international entity, including the UN?
Most importantly, complete internal autonomy on both sides must be guaranteed by the governments of India and Pakistan — of their own accord. Any other solution is nothing but moral, political and diplomatic hypocrisy. We have had enough of that from all three parties. Time to get real.
Admittedly, the diagnosis above is not necessarily one which every Pakistani must agree with. But even a different diagnosis will not change the prescription. It’s time to stop fighting over differences in our diagnoses and start considering the prescription. It doesn’t matter which brandname the prescription drug carries as long as it addresses the malaise.
The most important thing to keep in mind here is that apart from the incalculably immense historical, cultural, social and emotional synergies which even our moving towards each other releases, there is whole edifice of practical compulsions with cold pragmatism on both sides which can lead both the countries not only to emerge as potent factors in world affairs but even to offer a freedom to both from the need for dependence on one or the other superpower for their survival.