Prof. Dr. Tanweer Khalid
Kashmir is the oldest and most serious dispute between India & Pakistan for which the two have fought three wars apart from many border skirmishes. Though the desire for normalization has been periodically emerging but with no tangible results because solution does not lie in unilateral efforts and approaches. The excessive use of state power by India and its disregard for Human Rights and self-determination has belittled the efforts to resolve the dispute.
Though the dispute goes back in history the solution has to be tangible in the light of the constitution, law, justice, fairplay and democracy. The dispute has varied connotations and dimensions which can be termed legal and constitutional, political, ideological, moral and human. Pakistan and India have had their bilateral relations deeply undermined because of the dispute and have faught three large scale wars of 1948, 1965 & 1971 with the Indian side insisting on the use of force and aggression inside Pakistan territory whether in former East Pakistan or in the recent Pulwama attack.
The Kashmir dispute is the result of a hurriedly worked out partition plan by the British and scant attention was paid to the future of princely states which were 580 in number and even less attention was given to the violators of the guiding principles laid down. The last viceroy Lord Mountbatten and Secretary of state for India gave the states a clear option for accession to either Pakistan or India on two principles: geographical location and aspirations of the people ie, if the state was next to the territory which was to become Pakistan and had a muslim majority population aspiring to be a part of the new state it had a convincing argument. Similarly if the area was next to the Indian territory with a majority of hindu population aspiring to join India, it had the right of accession to India. All except the states of Jodhpur, Junagarh, Hyderabad and Jammu & Kashmir, gave their decision. The decision of ‘accession’ of Kashmir was given to the ruler but it was to be qualified with geographical proximity, people’s aspirations and religio-ethnic composition of the state.
After 1947 both India and Pakistan had contesting claims of sovereignty over the territory of Jammu & Kashmir and both have raised their claims to the UN several times. It is now a very complex dispute but it is recognized at many quarters as a political dispute which requires a political approach based on continuous negotiations while the Pakistan and Kashmiri people are genuinely interested in resolving the dispute. The Indians have repeatedly demonstrated their unwillingness in resolving the issue or settling it on their own terms only.
The option of Plebiscite was originally suggested by the Indian leadership in 1947 by Pandit Jawaharlal Nehru, the then Prime Minister of India and took the case to the UN. The option was institutionalized in two UN resolutions passed in 1948-49. India went back on the proposal and Pakistan still considers it binding. India denies the approach thinking that it smacks of the two-nation theory and while India is secular it cannot act on such lines. Also India fears that if Kashmiris are allowed to quit, the separatist movements in the north-east of India will be difficult to control. Even Punjab and Tamil Nadu might reopen their claims of leaning the union. These resolutions entailed a ceasefire, demilitarization and plebiscite but the UN was unable to secure an agreement on the process of demilitarization because India refused to abide by the withdrawal schedule. The UNSC then gave the plan for an interim administrative set up to over see the withdrawal as well as plebiscite but India refused to accept. In the Commonwealth conference in 1951 the Kashmir dispute was informally discussed and when the Australian Prime Minister Robert Gordon Menzies suggested to station Commonwealth troops or to have a joint India-Pakistan force to oversee the Plebiscite, India rejected all.
Efforts to solve by direct negotiations were abruptly discontinued when in 1953-54 Pakistan agreed to military assistance by US, Prime Minister Nehru maintained that since this has changed the balance of power India’s security was being affected and future change in its foreign policy was imminent and necessary putting the blame on Pakistan for the reversal. This stance was promoted on superficial grounds while the real reason was ascendancy of Hindu revivalists turned reactionaries who were able to exercise influence on the policies of the government. The decision of Prime Minister Nehru not to hold a plebiscite forced Pakistan to request the Security Council to take up the Kashmir issue again in 1957. The President of the Council suggested that ‘issue of demilitarization’ should be taken for arbitration along with other complaints which India refused to accept. Pakistan’s Prime Minister announced his unwillingness to withdraw all forces unilaterally but expressed his intention to meet all Indian objections to facilitate the demilitarization process but India refused again. The UNSC discussed the Kashmir conflict again in 1962 but no decision could be taken because of the Soviet veto.
Disappointed from the UNSC, Pakistan used the forum of the OIC which gave a lukewarm response and established a contact group but with no solutions.
All these were multilateral efforts to solve the Kashmir dispute beginning from India taking it to the UN to a reversal in foreign policy approaches visible at the highest international forum now when Mr. Modi did not even mention Kashmir in his speech at the UN General Assembly in September considering it an internal matter of India with no concerns to the outside world. This only shows the extent of hindu revivalists turned reactionaries influence to be able to radically alter policies of the central government.
Bilateral approach for solution of the Kashmir issue had been taken throughout the past between India and Pakistan and a breakdown in negotiations have been the result. Duality of approach is visible on one pretext or the other by India either on suitability of the given time or internal demands. In Sino-Indian border war in 1962 when India suffered a setback it sought help from both US and UK and proclaimed to be non-alligned simultaneously.
In the Simla agreement in 1972, it was stated (clause 6) that the two sides will meet at a mutually agreed time for a final settlement of Jammu and Kashmir. The UN ceasefire line was replaced by the Line of Control (LoC) which was to be respected by both sides without prejudice to either side, but which is being violated by India on & off on one pretext or the other.
The peace process between India and Pakistan from 2004-2008 which was to discuss the Kashmir issue alongwith other concerns, no consensus could be reached though the need to resolve the problem was seriously highlighted but India could not maneuver talks in its favour and kept on addressing the issue of cross-border terrorism only. A four point formula having appeal for many states within and outside South Asia for solving the complex issue which was continuing soft-border, self-governance, demilitarization and a joint mechanism for peace did not have any appeal for India.
In 2008 after Bombay attack India refused to resume the dialogue and capitalized on the tragedy by blaming Pakistan as a sponsor of terrorism at all world capitals while refusing to furnish proof for a joint investigation to Pakistan. It was not only harping to the tune of cross-border terrorism and state-sponsoring terrorism for Pakistan by India, Indian diplomacy has remained focused on this one term which not only attracts attention of western capitals but whole hearted sympathy as well. Pakistan’s diplomatic efforts to project a genuine picture needs more focus because it is not easy to wipe out a planned picture so carefully projected through a a soft face but by double standards. India refused to even mention the case of one its active service agents, Kalbushan Jadhav caught inside Pakistan endorsing the fact that Infiltration is the first step towards intervention.
Conflicts can be solved by mediation or third party involvement. Mediation efforts of the World Bank for distribution of the waters of the river Indus resulted in the signing of the Indus Waters Treaty in 1969. It had been working well with minor irritants but recently violation of its provisions had raised complex issues and Modi government has been making wild statements to annul the treaty leading to further tension between the two countries. Mediation offers by President Trump of the United States also lies low in Mr. Modi’s approaches to solution of the Kashmir issue. President Trump has shown his readiness to mediate but only if both parties agree so again the stalemale and obstinacy continues.
Much has undermined the faith of many in peace making in India and abroad. The deployment of over 600,000 Indian troops in Kashmir and the steady increase in their number banning operations of Human Rights orgs like TI (transparency International) for many years as well as entry of Asia Watch, Amnesty International, Human Rights Watch but no answers are given. Kashmir is denied Rights with impunity in the wake of torture, rape, abduction, eviction, fake encounters and killings. Draconian Laws like Public Safety Act 1978 (allows detaining a person for upto two years), Enemy Agent Ordinance 1948, Internal Movement Control Ordinance 1948, Prevention of Suppression & Sabotage Act 1965, are applied indiscriminately together with TADA (Terrorist and Disruptive Activities Act 1987, Armed Forces Special Power Act 1990 and POTA (prevention of Terrorism Act).
Despite all these rebuttles, refusals and rejections by India and its policy of perpetual terrorist blame on Pakistan, efforts for peace initiatives have not been withdrawn from Pakistan’s side. Normalcy can be achieved through dialogue but not on dictated terms. Modi’s revoking of Article 370 and 35-A of the constitution of India is not constitutional but half the truth. Any Presidential decree has to be endorsed by the legislative assembly of Kashmir before being revoked or implemented. This was not the case here and aspirations of the people is reflected in its rejection so this is not even democratic in the world’s biggest so called democracy. The people of Kashmir are locked up for 55 days, disconnected from the outside world, meted out in human treatment, indiscriminate use of pellet guns on young and old alike and are still being blamed as terrorists and separatists while Narender Modi and his Hindutva brigade of fascist supporters is free to lynch, kill and dishonor. This is not a new approach and Modi himself was refused entry in the US before being elected for turning a blind eye to the Gujrat massacre and supporting violence and bloodshed. Now as elected leader he supports and practices ‘state terrorism’ although he uses the terms terrorists and cross-border terrorism for Pakistan.
Pakistan has emerged having a desire for normalcy despite the pitiable human conditions in Kashmir. Prime Minister Imran Khan welcomed Mr. Modi for being elected to his office in recent elections hoping that both countries can cooperate and look ahead for the betterment of their people, eradication of poverty and promotion of peace but not even scant attention was paid to the offer. Pakistan has been all out for a comprehensive dialogue, improvement of trade and people to people contact, third party mediation and good offices but is snubbed by India. International law provides peaceful methods to the solution of conflicts between states and mediation and good offices are one of them but the Indian representative at the UN rejected again the mediation proposal of President Trump insisting that the Kashmir issue must be solved bilaterally when it comes to bilateral negotiation India comes up with conditions alities.
Friction and unabashed perusal of aggressive behavior of India has made Pakistan weary of its efforts hence the Pakistan government has explained the implications of an unresolved, perpetual human tragedy in Kashmir affecting two nuclear powers list India is unable to comprehend the magnanimity of the disaster and destruction in case sanity does not prevail. Saner voices and elements in India are speaking up for the immature approach of the Modi government who fails to understand that extreme nationalism and racial superiority through extermination of a community are no longer tolerated in the 21st century let alone being appreciated as face-saving by self-declared saviours.
Paper from Prof. Dr. Tanweer Khalid
(Sindh University Jamshoro)
02-10-2019