The Kashmir Dispute: A Kashmiri Assessment

(The Kashmir dispute is one of the oldest unfinished items on the UN agenda because the Security Council resolutions pertaining to the occupied territory have yet to be implemented. The people of Jammu and Kashmir were promised their right of self-determination through a fair and impartial plebiscite. The pledge has not been redeemed. This has resulted in wars, tension and unending violence. Pakistan and India are currently engaged in what they describe as a composite dialogue to resolve all outstanding matters including the core issue of Kashmir. However the people of Jammu and Kashmir are not a party to the negotiations. This is unacceptable. A “final settlement” of the Kashmir dispute must be in accordance with the wishes of the Kashmiri people failing which the turmoil will continue. Editor The Criterion).

A.G. Noorani’s article titled “Bilateral Negotiations on Kashmir: Unlearnt Lessons” featuring in the October-December 2006 issue of Criterion attempts to identify the facts that he believes resulted in the long-festering Kashmir dispute. In his opinion, the Pakistani leadership, and in particular the founder of Pakistan, Quaid-e-Azam Mohammad Ali Jinnah, were squarely to blame for rejecting the Indian proposal for talks on Kashmir and Hyderabad. This, according to Noorani, would have resulted in Pakistan acquiring Kashmir and India securing Hyderabad. Shorn of sophistry, the Indian proposal was tantamount to bartering away the freedom of peoples. At the time, the State of Hyderabad was not a part of India. It did not join Pakistan and preferred to be an independent state. It was, therefore, out of question for Pakistan, especially for its leader, to come to terms with India on the future of Hyderabad when negotiating on Kashmir. The latter was altogether a separate question. Kashmir was an overwhelmingly Muslim majority state and, in accordance with the principles of partition, would have become a part of Pakistan If there was any doubt, it was for the people of the state to decide whether to join Pakistan or India.

Pakistan’s position on Hyderabad was unambiguous. The first Home Minister of India after it achieved independence in 1947, Sardar Patel, himself conceded this in one of his speeches delivered at Junadgarh when he stated: “Our reply was that we would agree to Kashmir if they (Pakistan) agreed to Hyderabad. Pakistan, however, pointed out that they had no say in the matter.”[1] In disregard of all laws, India military annexed Hyderabad shortly after Mr. Jinnah’s death in September 1948.

In his article, Mr. Noorani has made a passing reference to the Cabinet Mission Plan[2] which was accepted by both the Indian National Congress (INC) and the All-India Muslim League. The problems that were to arise subsequently were due to the derailment of the Plan by Gandhi, Nehru and their colleagues who thus became the veritable architects of the conflicts between Pakistan and India, the division of the sub-continent and the economic retardation of both the countries. Historical facts clearly demonstrate that it was the Congress leadership that was responsible for the partition of India, and, later, for the problems and tensions that have afflicted South Asia. Maulana Abul Kalam Azad[3] wrote:

“The Muslim League Council met for three days before it could come to a decision. On the final day, Mr. Jinnah had to admit that there could be no fairer solution of the minority problem than that presented in the Cabinet Mission Plan. In any case he could not get better terms. He told the Council that the scheme presented by the Cabinet Mission was the maximum that we could secure. As such, he advised the Muslim League to accept the scheme and the Council voted unanimously in its favour.”[4]

Maulana Azad has described the acceptance of the Cabinet Mission Plan by the Congress and the Muslim League, “a glorious event in the history of the freedom of India.”[5] He observed:

“It meant that the difficult question of Indian freedom had been settled by negotiations and agreement and not by methods of violence and conflict. It also seemed that the communal difficulties had been finally left behind. Throughout the country there was a sense of jubilation and all the people were united in their demand for freedom. We rejoiced but we did not then know that our joy was premature and bitter disappointment awaited us.” [6]

The All-India Congress Committee (AICC) met at Bombay (now Mumbai) on 6 July 1946 and ratified the working committee’s resolution of 25 June which had accepted the Cabinet Mission Plan. In commending the resolution to the house Azad, the retiring president of the Congress, said:

“The Cabinet Mission’s proposals also have once for all time cleared all doubts about the question of the division of India. These proposals have made it clear beyond a shadow of doubt that India shall remain an undivided single unit with a strong central government composed of the federating units.”[7]

The Muslim League’s acceptance of the Plan was generally welcomed in India and Britain, and Jinnah was congratulated for his farsightedness and statesmanship in sacrificing the demand for Pakistan in the interest of the common progress of the subcontinent. [8] But neither the Cabinet Mission nor the Congress said a word in recognition of what it had cost the League to abandon its basic and original demand. The only response was a spate of derisive articles, and cartoons in the Hindu press gleefully announcing the defeat of the League and the resolve of the Congress to follow up this victory by forcing the Mission to yield on all points.[9]

The National Herald, Nehru’s daily, boasted triumphantly:

“Pakistan, the Pakistan of Mr. Jinnah’s conception, received a state burial in the document submitted by the Cabinet Mission. And lest there should be any doubt about its demise or any fear of the possibility of its resurrection, it is emphatically announced that the Cabinet Mission’s sentence of death of Mr. Jinnah’s Pakistan has already obtained the approval of the British Government.”[10]

It was against this background that Nehru, who had replaced Maulana Azad as Congress president, caused consternation among nationalists, especially Maulana Azad who had succeeded in persuading the Congress and the League to agree to the best possible solution. On 10 July 1947, Nehru held a press conference in Bombay in which he made an astonishing statement. Some media representatives asked him whether, with the passing of the Resolution by the AICC, the Congress had accepted the Plan in its entirety, including the composition of the Interim Government. 

His response was that Congress would enter the Constituent Assembly completely unfettered by agreements and free to meet all situations as they rise. When asked if this meant that the Cabinet Mission Plan could be modified, he emphatically declared that the Congress had agreed only to participate in the Constituent Assembly and regarded itself free to change or modify the Cabinet Mission Plan as it thought best.[11]

In actual fact Nehru and other Congress leaders were merely echoing Gandhi’s stance which made the so-called acceptance of the Cabinet Mission Plan farcical. In the words of V.P Menon:
“It was open to the Constituent Assembly to vary the proposals, to reject or improve upon them; otherwise the Constituent Assembly could not be a sovereign body. Thus the Mission had suggested certain subjects for the Union Centre: the Constituent Assembly could, if they chose, add to them or reduce them. Similarly, it was open to the Constituent Assembly to abolish the distinction of Muslims and non-Muslims which the Mission had felt forced to recognise. As regarding groups, no province could be compelled to belong to a group against its will. (subject to these interpretations) Gandhiji said the Mission had brought something of which they had every reason to be proud.”[12]

Statements such as that of Nehru, rendered the earlier acceptance of the Cabinet Mission Plan by Congress null and void. Maulana Azad and his supporters were unable to reverse this negative development. It was with disappointment that he wrote:

“The Working Committee accordingly met on 8 August and reviewed the whole political situation. I pointed out that if we wanted to save the situation, we must make it clear that the statement of Congress President at the Bombay Press Conference was his personal opinion and did not conform to the decision of the Congress. I explained that the view of the Congress was expressed by the resolution passed by the AICC and no individual, not even the Congress President, could change it. Jawaharlal argued that he had no objection if the Working Committee wanted to reiterate that the Cabinet Mission Plan has been accepted by the Congress but felt that it would be embarrassing to the organisation and also to him personally if the Working Committee passed a resolution that the statement of the Congress President did not represent the policy of Congress.”[13]

The Working Committee, then in dilemma, drafted a Resolution which did not refer to Nehru’s statement but reaffirmed the decision of the AICC. This way, “the show boy of All-India Congress Committee” (as quoted by Sheikh Muhammad Abdullah in his Autobiography)[14] i.e., Maulana Abul Kalam Azad, “and other people of his thinking thought it possible that they could once again persuade Quaid-e-Azam and the Muslim League to trust the Hindu leadership. God knows better how a man of the Maulana’s calibre could hope that the Resolution of the Working Committee would save the situation”…..

Jinnah, however, saw through the duplicity. He had no doubt in his mind that the Working Committee’s resolution was no more than window dressing and that Nehru’s statement was the actual position of the Congress. He argued that if Congress could renege on what it had earlier accepted at a time when power was not in its hand and the British were still in the country, it would revert to Nehru’s statement as the basis of policy when the British left. The minorities would, in effect, become second class citizens.[15]

The failure of the Hindu leadership in Congress to honour solemn pledges is, therefore, the real reason for the partition of the South Asian subcontinent, the continuing tensions and the unresolved Kashmir dispute. This is, perhaps, also the most important “unlearnt lesson” that Mr A.G. Noorani has ignored in his article in the Criterion quarterly. He has drawn the conclusion that “each country has adopted inconsistent stands on”(i) the worthlessness of the Instrument of Accession, (ii) plebiscite, (iii) territorial integrity or the geographical factor, and (iv) the religious factor – both sides practiced deception and both used armed force as an instrument of policy.

It is obvious that there has been every kind of inconsistency in the stance adopted by India in regard to not only the above mentioned aspects of the Kashmir problem but also on other issues. Pakistan and the people of Jammu and Kashmir never accepted the claim by India that it had received a request from Maharaja Hari Singh, the first time ruler of the State, for military aid and offering accession to India. There is no such document on record with India. Only a letter of acceptance from the then Governor General is available which is without any annexure of the Maharaja’s application for accession and military assistance.[16] Therefore any reference to the so-called Instrument of Accession carries no weight in international law. Had the Maharaja actually submitted any such application it would have been illegal because the land belonged and belongs to the people of Jammu and Kashmir. India, therefore, had no right or justification to airlift troops to Srinagar on 27 October 1947.

Pakistan’s consistent stance was the holding of a plebiscite and this was what India itself initially supported. In his acceptance letter of the so-called application of the Maharaja, Governor General Mountbatten of India stated unequivocally:

“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 is cleared of the invader, the question of the State’s accession should be settled by a reference to the people.”[17]

To the Indian occupiers of Kashmir, words such as “dispute,” “issue of accession,” “wishes of the people,“ “restoration of law and order” meant nothing. All that mattered was the illegal occupation and possession of the territory. It is, therefore, not surprising that on return from Jammu, with the Instrument of Accession in his hands, VP Menon, is said to have waved it at Alexander Symons, the British High Commissioner to India, and told him jubilantly:

“Here it is! We have Kashmir. The bastard signed the Act of Accession. And now that we have got it, we will never let it go.”[18]

Prior to the above event and soon after the announcement of the Partition Plan of 3 June 1947, Nehru and Sardar Patel stealthily sought to secure the accession of Kashmir to India. In his letter of 27 September 1947 to Patel, Nehru wrote:

“Once the Sate accedes to India it will become very difficult for Pakistan to invade it officially or unofficially without coming into conflict with the Indian Union. If, however, there is delay in this accession, then Pakistan will go ahead, without much fear of consequences, especially when the winter isolates Kashmir.”[19]

On 1 January 1948 India brought the Kashmir issue before the UN Security Council invoking article 35 of the Charter. Its representative stated that the situation in Kashmir was a threat to international peace and security and the dispute should be resolved quickly. He also conceded:

“The question of the future status of Kashmir vis-a-vis her neighbours and the world at large, and a further question, namely, whether she should withdraw from her accession to India, and either accede to Pakistan or remain independent, with a right to claim admission as a member of the United Nations – all this we have recognised to be a matter for unfettered decision by the people of Kashmir.”[20]

Whatever justification India may have proffered for its sinister designs to annex Kashmir, thus lost even a semblance of legality when it referred the matter to the UN. The right of the Kashmiris to determine their own future was also affirmed in parliament by the Indian leadership and pledged to the people of Jammu and Kashmir. The principle of res judicata is admitted internationally and it debars India from adopting any other stance on the issue.

India’s initiative to refer the Kashmir issue to the UN Security Council and the statement of its representative that it was for the Kashmiri people to decide the future destiny of their state was not prompted by high ideals but by the ground situation. The people of Jammu and Kashmir had risen in revolt against Maharaja Hari Singh on 17 August 1947 and, on their request, they were supported by tribesmen from the North West Frontier Province of Pakistan. As a consequence 32,000 square mile were captured by them and the Dogra forces were defeated in Baramulla. The maharaja fled and India, in order to salvage a desperate situation, took the issue to the UN.

The declaratory Indian position at the time that “the future status of Kashmir” was “a matter for unfettered decision by the people of Kashmir,” was inspired by the belief that Pakistan would not survive. So confident was the Indian leadership that it was “going to be a short-lived partition” that even their rhetoric against Pakistan became temporarily more muted.[21]

Gandhi himself declared on 15 August 1947 that he was sure that a time would come when the division would be undone.[22] The Hindustan Times – the Congress daily – commented in a lead article on the 3 June Plan: “The saving feature is that it will be possible to unite again once the glamour of division has passed and national forces come into play.”[23] Menon, who had been involved in drafting the Plan document and knew the minds of Congress leaders, believed that “the partition of August 1947 was surely not intended to sunder for all time the ties that for a century and a half have bound India together.”[24] There was a general belief among the Hindus and Congressmen that the partition would not endure, that Pakistan would soon collapse and that India would once again be a united country under the Congress.” Nehru himself had warned “I doubt very much if it (Pakistan) can survive.”[25]

When it became clear that these predictions about the end of Pakistan were no more than wishful thinking, New Delhi’s actual designs to absorb Kashmir as an “integral part of India” came into the open. One of the arguments advanced was the principle of territorial contiguity or the geographical factor. But facts speak differently.

The state of Jammu & Kashmir comprises an area of 84,471 square miles. It lies almost in the middle of the continent of Asia and its borders also touch Afghanistan, China, and Chinese Tibet. However, more than two third of its border is contiguous with Pakistan. All natural routes of the state lead to Pakistan and these include:

1). Sialkot Jammu, Banihal, Sringar.
2) Rawalpindi, Srinagar (Jhelum) Valley Road
3) Gujrat Bhimber
4) Jhelum Mirpur
5) Kotli Poonch, Uri Srinagar Road
6) Azad Pattan
7) Sino Pak

The geographical unity of Kashmir and Pakistan is also established by the mighty Indus and its tributaries — Neelum (Kashn Ganga, Jhelum, Kunhar, Kabul etc.), which run through both states.

It is only the Amritsar-Pathankot road which was linked through Lakhanpur with Jammu to provide India an artificial land-route to the state although it made the transportation of commodities to and from India prohibitively expensive. The route was made available to India by the Punjab Boundary Commission award, whose chairman, Mr. Radcliffe, was openly partial towards New Delhi. The most brazen example of which was his award of the Muslim majority district of Gurdaspur to India. This was to be expected because any hope of British impartiality disappeared when Lord Mountbatten became the first Governor General of independent India. Prior to the Boundary Commission award, there had never been any land route directly linking India to Kashmir.

As regards the population complexion of Kashmir, the findings of a 1941 Census, almost six years before the partition of British-India, were:

Area Muslims Non-Muslims
1.Northern Areas 88% 12%
2.Kashmir Province 93.5% 6.5%
3.Jammu Province 53.4% 46.6%

It was inconceivable that the overwhelmingly Muslim majority state of Jammu and Kashmir would accede to India. Jinnah was, therefore, right to have assumed that “Kashmir will fall into our lap like a ripe fruit.”[26] Neither he nor anyone who stands for justice could have imagined that Nehru, with the support of the British, would disregard all legal and moral principles in order to annex Kashmir by force. Since then indecisive wars and inconclusive negotiations against a backdrop of tension have dominated the Kashmir scene.

The structure of the negotiations on the Kashmir dispute is seriously flawed because the Kashmiri people have been left out of the talks. Initially the parties were Pakistan, India and the UN. After the Simla Accord of 1972, whatever little discussion there was on Kashmir was conducted bilaterally between Pakistan and India. It seemed that the Kashmiri people just did not matter. 

Their fate was to be decided upon by Pakistan and India but even this format was flawed for another reason. The Peoples Republic of China, which had acquired Kashmiri territory, was never a party to the talks. For any negotiations on Kashmir to succeed it is essential that all the parties must be associated. Such talks must include first and foremost genuine representatives of the people of Jammu and Kashmir, Pakistan, India and China.

Kashmir is the core issue that has resulted in wars and tensions in South Asia. The problem can only be resolved through the exercise of the right of self-determination of the Kashmiri people as promised to them through several resolutions of the UN Security Council. The argument that these resolutions were adopted in the late 1940s and the early 1950s, and, therefore, no longer relevant, is untenable. UN resolutions are not time-bound and remain valid till they are implemented. They can only be annulled through a subsequent resolution or by the consent of all the parties concerned. The Kashmir dispute is, therefore, the oldest unfulfilled item on the UN agenda. The right to self-determination was pledged to the Kashmiri people by the international community and, in particular, by India and Pakistan. Unless this pledge is redeemed, Kashmir will continue to be the root cause of tension and conflict in South Asia,
One of the major obstacles in the way of a just and final settlement of the Kashmir problem is that India cannot be relied upon to honour its solemn pledges. It has already been noted how the Congress backtracked on its acceptance of the Cabinet Mission Plan. Yet another example, and there have been many, is that at Lucknow, in 1916, the All India Congress, under its president Ambeka Charan Maujamdar, signed a pact with the Muslim League to uphold separate electorates. However when the time came to incorporate this agreement in the Draft Constitution in 1928, the Nehru Committee, headed by Pundit Motilal Nehru, reneged on the undertaking. In the case of Kashmir, pledges to the Kashmiris and even to the Indian people, have repeatedly been broken. It was none other than Jawaharlal Nehru who declared on the floor of the Indian parliament on 7 August 1952:
“With all deference to this Parliament, I would like to say that the ultimate decision will be made in the minds and hearts of the men and women of Kashmir and not in this Parliament or at the United Nations…. First of all, let me say clearly that we accept the basic proposition that the future of Kashmir is going to be decided by the good will and pleasure of the people. The goodwill and pleasure of this Parliament is of no importance in this matter, not because this Parliament does not have the strength to decide the question of Kashmir but because any kind of imposition would be against the principle that this Parliament upholds…..The question of Kashmir, as this House well knows, certainly has not been for us a question of territory…..Kashmir is very close to our minds and hearts; if however, the people of Kashmir do not wish to remain with us, let them go by all means. We will not keep them against their will, however painful it may be to us, that is the policy that India will pursue…..so while another fact which has nothing to do with law also remains, namely, our pledge to the people of Kashmir, if you like, to the people of the world that this matter can be affirmed again or cancelled by the people of Kashmir according to their wishes. We do not want to win people agains