Daily Times

Where roses run blood I

Kashmir is a saga of unspeakable horrors. In a tale that has metamorphosed for over centuries and climaxed each time into a tragedy, there are only victims.  But if one were to identify a villain –  of all the invaders, usurpers and colonial megalomaniacs, Nehru stands out. He emerges as the Machiavellian prince whose double-speak throughout forties, fifties and sixties magnified this human catastrophe –  we call Kashmir.

Nehru had ruled out plebiscite as early as in 1948 despite public posturing to the contrary. His decision to back out from extending right of self-determination to the people of Jammu & Kashmir unfolded in four stages. First, UN’s proposals for peaceful solution were rejected privately. Then plebiscite was publicly deferred indefinitely to such time when peace and order would return. Then mediations and third party interventions were spurned. And in the last stage, even bi-lateral talks were dismissed. All this allowed India, the occupier, space to consolidate status-quo in Kashmir.

Since partition, only Pakistan was keen on revising status-quo. And it was in India’s interest to palm on chaos in the state of Jammu & Kashmir. Even when disorder was at its lowest ebb, no effort was made by Delhi to reach out to Srinagar or Islamabad for a lasting peace in the region. Generations of Kashmiris have sought the right of self-determination now. Denied, Kashmiris in the Indian occupied Kashmir, have over the years, gradually drifted away from the center. They resent the broken pledges – and now with special status of the state of Jammu & Kashmir withdrawn, Kashmiris feel, they don’t have place in the Union of India any longer – such sentiments voiced by those who could, in the mainstream India media before even their expression of dissent was stifled.  And of many others since the lockdown.

Today in India Kashmiris are seen with suspicion. Each Kashmiri is a militant. Each Kashmiri is a separatist. Each Kashmiri is a terrorist. Like the mass unmarked graves in the valley; a Kashmiri is merely a stat that can be purged by Delhi at whim.

The events of last year, also termed as the final solution for Kashmir, when Delhi unilaterally acted to exterminate Kashmir’s identify and soul, without concurrence of the people of state of Jammu & Kashmir, are a direct product of Nehruvian politics. Kashmir’s forced merged into the Union of India, will never be accepted as the settlement of dispute by the people of Kashmir – and nor by Pakistan.

It is also naively odd to argue, which our foreign office did, that in the wake of assault on Kashmir’s special status; that unilateral action has internationalized Kashmir’s issue. Incorrect. It was always an International issue. Nehru recognized it. His speech in parliament on 7^th August, 1952 “It is an international problem. It would be an international problem anyhow if it concerned any other nation besides India and it does. It became further an international problem because large number of other countries also took interest and gave advice…”

Indian leaders and their mouthpieces making statements today have come a long way from what Nehru had publically promised. His address to Lok Sabha on 26^th June, 1952: “We have not got a clean slate to write upon, we are limited inhibited by our commitments to the United Nations by this, by that. But, nevertheless, the basic fact remains that we have declared and even if we had not declared the fact would remain – that it is the people of Kashmir who must decide. And I say with all respect to our Constitution that it just does not matter what your Constitution says, if the people of Kashmir do not want it, it will not go there…. Let us suppose there was a proper plebiscite there – and the people of Kashmir said, ‘We don’t want to be with India,’ well we are committed to it, we would accept it….”

What do the people of Kashmir want?  Yes, there is a school of thought that has always romanticized the idea of independent Kashmir. This idea stems from the unique history of Kashmir and is an integral theme of Kashmir’s folklore dating back to the era of Sultan Zain-ul-Abidin Bud Shah (1421-1472). For Kashmiris, unlike the rest of India, he is greater than even the mighty Akbar in their reading of history. His forty-two years of rule is widely accepted as the most progressive and prosperous period in the history of Kashmir.  At the time of the partition this idea of independent Kashmir was even encouraged by Jinnah – briefly. Therefore, the long imagined independent by Kashmiris is unlikely to be buried under any statutory of instrument.

Regardless, far too many lives have been laid to waste without the people of Kashmir not getting an opportunity to have a say on self-determination. Elections in Kashmir now, least of all rigged, are no more a solution to the issue of Indian occupied Kashmir. It is quite likely that another wave of indigenous armed struggle for independence will commence again. Roses, in the valley and beyond, will run blood again.

Where roses run blood II

Kashmir’s status of Muslim majority state has always been a cause of concern for Delhi. In May of 1947, well before the 3^rd June Partition Plan was announced, Nehru had sent a telegram to Mountbatten on the issue of Kashmir that recorded the population figures of the state at the time: Jammu: Muslims 61%, Hindus 39%, Kashmir: Muslims 92%, Hindus 7.8%. So in a total of 3.6 Million people residing in the state, 77% were Muslims. Both Mountbatten and Nehru knew, it was a foregone conclusion at the time, that if Kashmiris were allowed to decide their own fate; they would choose Pakistan.

Kashmir even today is the only Muslim majority state in India – for now. As per the figures of last census held in 2011, Muslim population in the Indian occupied Kashmir was over 68%. It is evident that government in Delhi only wants to count Kashmiris now after the demographics have been materially altered.

Demographics aside, the real question is, can we continue to determine the fate of over thirteen million people on the basis of deed of sale, as Gandhi called it, to an oppressive tyrant for a mere sum of Seventy-five lac rupees?  The fact remains that the people of Kashmir have been denied an opportunity to express their will ever since.

As Kashmiris brace themselves for a new round of struggle for independence, they would argue that their independence was snatched away when Akbar’s armies successfully marched into Kashmir on 28^th June, 1586. From Mughals by Afghans in 1752 and then by Ranjit Singh’s Sikh empire, who had captured Kashmir in 1819 after a decisive battle of Shopian. Gulab Singh who rose through the ranks of Ranjit Singh’s army later conquered Ladakh in 1834.

Ranjit Singh’s death on 27^th June, 1839 made Sikh empire vulnerable to the hostile British colonizers who had long coveted Punjab. When on 13^th December, 1845 Governor General Sir Henry Hardinge declared war on the Sikhs, Gulab Singh betrayed his former Sikh masters and allied himself with the British.  The Treaty of Lahore (1846) made the Sikh State a tributary of the British and an indemnity of rupees 1.5 crore was enforced on it which the state could not pay – of course. So it had to cede its territories between Beas and Indus rivers, which included Kashmir and Hazara, to the British.  Article XII of the Treaty of Lahore, acknowledged Gulab Singh’s role: “In consideration of the services rendered by Rajah Gulab Singh of Jummoo to the Lahore State … the Maharaja hereby agrees to recognize the Independent Sovereignty of Rajah Gulab Singh, in such territories and districts in the hills as may be made over to the said Rajah Gulab Singh by separate Agreement between himself and the British Government.”

East India Company, then as a favor transferred the territories of Jammu & Kashmir to Gulab Singh for Rs. 1 crore. This amount was then renegotiated and reduced a week later to Rs. 75 lacs through the infamous Treaty of Amritsar on 16^th March, 1846. Article III of the Treaty read: “In consideration of the transfer made to him and his heirs …. Maharaja Gulab Singh will pay to the British Government the sum of seventy-five lakhs of rupees (Nanukshahee), fifty lakhs to be paid on ratification of this treaty and twenty-five lakhs on or before the 1 October of the current year AD 1846.” Hafeez Jalandari called it Pachattar lakh ka Sauda!

The Treaty was later enforced through British intervention as well. Sheikh Imamuddin, the Governor of the State at the time had refused to honor the Treaty; better yet, he had defeated the forces of Gulab Singh. British troops had to be sent to install Gulab Singh as the ruler of the State. Thus he owed, not just his title to the Kashmir, but his actual possession of it, wholly to the support of the British.

Save for one last treacherous Redcliff Award, that gave India two Muslim majority tehsils of Gurdaspur and Batala, it was by and large, for the dominions of India and Pakistan to determine the fate of Kashmiris in history. Both states adopted an inconsistent approach on issues of Instrument of Accession, plebiscite, territorial integrity and religious factor.  Kashmiris on the sidelines watched on as their special place in the Union of India gradually erode, until it was completely appropriated.

Perhaps Nehru was conscious of the history of Kashmir which is why he said in Lok Sabha on 31^st March, 1955 “…we must always remember Kashmir is not a thing to be bandied about between India-Pakistan. It has a soul of its own; it has individuality of its own. We cannot, certainly much less can Pakistan, play with it as if it were something in the political game between the two countries. Nothing can be done without the goodwill of the people of Kashmir.”

India much like the Mughals, Afghans, Sikhs and the British before – is an occupier and will remain so.

Where roses run blood III

Kashmir today is damning indictment of secular India. How Kashmiris have been treated since independence also shows complete lack of respect for the letter of law on part of Indian administrations. If there was ever a test case for the tyranny of the majority; it is Muslim Kashmir’s treatment by Hindu Delhi.

After Article 7(1)(b) of the Indian Independence Act, 1947 released all the 562 Indian States under the suzerainty of the British Crown, with Jammu & Kashmir being one of them, of their obligations; what was to follow was the question of accession to any one of the dominions. The next step by the states was going to be taken through Instrument of Accession coupled with the Standstill Agreement; which was temporary arrangement for matters of common concern.

The Instrument of Accession (26^th October, 1947) of the state of Jammu & Kashmir, even if valid and legal, was both provisional and conditional. This is amplified by the letter Maharaja wrote to the then Governor General and multiple communiqué released from the Government of India at the time. The Maharaja alluded to the riots that took place in the valley despite the Standstill Agreement concerning the state of Jammu & Kashmir. And it was in this backdrop, the Maharaja sent his Instrument of Accession to the Governor General.

The Governor General, responded on 27^th October, 1947 stating “…it is my Government’s wish that as soon as law an order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people”. Ergo, the matter of accession was never settled – but conditionally accepted. In a telegram dated 28^th October, 1947, Nehru wrote to Liaqat Ali Khan: “In regard to accession also it has been made clear that this is subject to reference to people of the State and their decision. Government of India has no desire to impose any decision and will abide by people’s wishes but these cannot be ascertained until peace and order prevail.”

May I again remind the readers; accession was not provisional against afflux of time giving India a right to merge the territories unilaterally; it was provisional until the issue of accession was settled with reference to the people. That reference has yet to be made.

The Instrument of Accession along with the Standstill Agreement were signed under the Government of India Act, 1935. Clause 5 of the Instrument of Accession read “The term of this my [sic] Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947 unless such amendment is accepted by me by an Instrument supplementary to this Instrument.” Moreover, Clause 7 read: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.” The Instrument of Accession, therefore, retained the sovereign power of the Maharaja, and his legal capacity to settle all disputes, including one of accession, with reference to the people, under the Constitution of India.

There is another dimension to the accession. The local politics. Sheikh Abdullah had his own ambitions to achieve and he envisioned an independent Jammu & Kashmir – at least in his formative years as a politician post partition. He knew, as a politician, that it could only be achieved, when the people were allowed to express their choice. Soon after release from jail in 1947 he said: “If forty lakhs of people living in Jammu & Kashmir are bypassed and the State declares accession to India or Pakistan, I shall raise the banner of revolt and we face a struggle.”

With Muslim majority in Kashmir apprehending succession to India from Maharaja and tribesman entering from neighboring Pakistan, the famous Poonch revolt started that was going to engulf the entire valley. In these circumstances, on 24^th October, 1947, Maharaja appealed to the British Government to intervene betraying his own people. After the meetings took place on both the next two days, the Governor General, accepted the Maharaja’s accession to India.

Although, Indian Constitution could not supersede the provisional accession of the State of Jammu & Kashmir, it nevertheless retained accession as temporary arrangement. Again temporary, because the people of Kashmir, had to decide their own fate.

Instrument of Accession was signed and accepted, without recourse to the people, with all the events surrounding it, in a matter of two days, two days! Poonch revolt certainly helped legislate for it. Those two days of the fateful October of 1947 made Kashmir an unfinished business of partition – and generations of Kashmiris hostage to history!

Where roses run blood IV

The impression that UN itself offered to intervene to settle the dispute of Jammu & Kashmir or that Pakistan took the matter to the UN is both erroneous and historically incorrect. India took the matter to the UN! Mountbatten, at the time, having observed that both Patel and Gandhi favored a third party intervention, had pushed the idea that UN should fill that role and Liaqat Ali Khan welcomed it.

The text of the Indian complaint to the UN on 31^st December, 1947 is instructive: “In order to avoid any possible suggestion that India had taken advantage of the State’s immediate peril for her own political advantage, the Dominion Government made it clear that once the soil of the State had been cleared of the invader and normal conditions restored, the people would be free to decide their future by the recognized democratic method of plebiscite or referendum which, in order to ensure complete impartiality, may be held under international auspices.”

India, before the UN, through various resolutions conceded that State of Jammu & Kashmir is an international dispute and undertook to resolve it through peaceful means by reference to the people.

There is a grand total of sixteen (16) UNSC resolutions that record or refer to the right of self-determination for the people of Jammu & Kashmir.  The earliest of the lot, UNSC resolution [39] passed on 20^th January, 1948 adopted at the 230^th meeting and UNSC resolution [47] passed on 21^st April, 1948 adopted at the 287th meeting,  appointed the Commission, with membership of three which was later expanded to five, to investigate the facts and exercise mediatory influence, observed with satisfaction; “that both India and Pakistan desire that the accession of Jammu & Kashmir to Pakistan or India should be decided by the democratic method of a free and impartial plebiscite”.

The Commission itself came to the sub-continent and adopted a resolution on 13^th August, 1948. This resolution, and another one of 5^th January, 1949, is admittedly binding on both nations. The resolution of 13^th August, 1948 has three parts providing for ceasefire and its consolidation, truce agreement between the two countries and its Part 3 read: “The Government of India and the Government of Pakistan reaffirm their wish that the further status of the State of Jammu & Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the Truce Agreement, both Governments agree to enter consultations with the Commission to determine fair and equitable conditions whereby such expression will be assured.”

While the Government of India unequivocally accepted the resolution. Pakistan, on the other hand, wished to introduced a caveat to Part 3 only “the Government of India accept the conditions laid down in Part B (paragraphs 6 to 15 inclusive) of the Security Council Resolution 21 April, 1948, as explained by the sponsors, for a free and impartial plebiscite to decide whether the State of Jammu & Kashmir is to accede to India or Pakistan.” The Commission, subsequently approached the representatives of the two Governments and on 11^th December, 1948 submitted its proposal to both parties to serve as basis for a plebiscite. Both the governments on 23^rd December,1948 and 25^th December, 1948 communicated their acceptance to the proposal – which is embodied in the UNSC resolution of 5^th January, 1949. Subsequently, in UNSC resolution of 10^th November,1951 adopted at the 566^th meeting noted agreement of the both the states on free and impartial plebiscite for the people of Kashmir.

The UNSC resolution of 24^th January, 1957 adopted at the 765^th meeting endorsed the principle of free and impartial plebiscite under UN auspices and also observed that any action that Constituent Assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State and any part thereof, or action by the parties concerned in support of any such action by the Assembly, would not constitute a disposition of the State in accordance of the above principle. The UNSC resolution of 21^st February, 1957 adopted at the 774^th meeting, for instance, had also recorded that President of the Security Council (Sweden at the time) to examine with the Government of India and Pakistan any proposals which in his opinion are likely to contribute to the settlement of the dispute having regards to the previous resolutions.

History cannot be erased merely through political rhetoric by India. Delhi cannot legislate for people who now hold out Delhi as an occupier. Laws serve no probative value if the people do not voluntarily submit to them. Enforce a submission and you invite civil unrest. Kashmir will be no different. And it is criminal for the world to stand as a silent spectator as Hindu majority India executes its plan to purge the Muslim population. If UNSC is so much as perceived to protect some and not intervene for others, it will lose all its legitimacy – and that trend has already started.  If the UNSC does not act now and enforce its own institutional framework; it will go down the same road as the League of Nations.

Where roses run blood V

The Simla Agreement dated 02.07.1972 (it was not signed on the date it bears) pursuant to its clause (I) provided “That the principles and purposes of the Charter of the United Nations shall govern the relations between the countries.” There are a total of sixteen UNSC resolutions governing the terms of bilateral relations between the two nuclear armed countries on the issue of Kashmir.  In addition, the Simla Agreement also provides: “That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them…” Ergo, the countries have already agreed to the form of dispute resolution which is bilateral negotiations – and a lot of ground was covered during the Musharraf’s regime on finding a peaceful solution baring consensus on a few modalities.

Moreover, the text of the Simla Agreement, gives the two countries a flexibility to have the issue resolved “by any other peaceful means mutually agreed between them”. This is where Trump’s offer today of acting an arbitrator is not out of line with what the parties had agreed. President Truman of the US and Prime Minister Atlee of the UK in the past have made similar offers to India to accept arbitration proposals – which were spurned by India.

What follows in the text of the Simla Agreement in its clause (II) is also pertinent: “Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations”. The settlement here is a reference to the long outstanding and sole dispute of Kashmir which was – correct that, is, to be settled by reference to the people of Kashmir.

The most important clause 4(ii) reads: “In Jammu and Kashmir, the line of control resulting from the cease-fire of December 17, 1971 shall be respected by both sides without prejudice to the recognised position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat or the use of force in violation of this Line.”

By promulgating The Constitution (Application of Jammu & Kashmir) Order, 2019 withdrawing special status of Kashmir and extending the Indian Constitution to the state of Jammu & Kashmir; by enacting Jammu & Kashmir Reorganization Act, 2019 carving out a new Union territory of Ladakh comprising Kargil and Leh districts; and by introducing Jammu and Kashmir Reorganization (adaptation of state laws) Order, 2020 aimed at altering the demographics of the Jammu & Kashmir,  the state of India has acted as an aggressor unilaterally altering the situation in Jammu & Kashmir which is detrimental to long term peace between the two nuclear armed countries, in gross violation of the Simla Agreement.

Clause 6 of the Simla Agreement stated: “Both Governments agree that the respective Heads will meet again at a mutually convenient time in the future and that, in the meanwhile, the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalization of relations, including the questions of repatriation of prisoners of war and civilians internees, a final settlement of Jammu and Kashmir and the resumption of diplomatic relations.” Despite India’s long standing position that Jammu & Kashmir is a bilateral dispute –  India never invoked Simla Agreement (that position of India has changed it now claims Kashmir is an internal matter).

Pakistan, on the other hand, which ought to have been an interested party in resolving the dispute, invoked Simla Agreement only once and for the first time on 14^th July, 1992 when Prime Minister Nawaz Shareef wrote a letter to PV Narasimha Rao – twenty years after the accord and three years after armed struggle had erupted in Kashmir. There was no meaningful follow up.

Throughout the nineties several exchanges took place at the level of foreign secretaries – sometimes with political oversight but apart from working out on arrangements in addressing outstanding issues (including eight issues identified in Islamabad Declaration of 23^rd June, 1997), no substantial progress was made. In fact, India had even tried to walk away from treating Kashmir as an outstanding dispute. But the Lahore Declaration of 21^st February, 1999 revitalized Kashmir dispute. The much hyped Agra Summit of 16^th July, 2001 also did not seek to settle the Kashmir dispute. It only sought to evolve a procedure towards the solution in line with earlier efforts. As such, Simla Agreement remains the summit of engagement between the countries in resolving the long outstanding dispute between the two countries.

Pakistan, must, with demonstrable political will, highlight the terms of Simla Agreement, with emphasis on the already agreed mechanism between the two states in resolving the dispute.  Pakistan must invoke Simla Agreement again, with Kashmiris on board. Remember, people of Jammu & Kashmir were not privy to Simla Agreement.

Where roses run blood VI

The debate in the Indian Constituent Assembly when Article 370 was being introduced is of paramount importance as it explains the need to give Jammu & Kashmir a special status as temporary arrangement. Article 370 was introduced as Article 306A of the Indian Constitution. The special treatment to Kashmir, when the Article was being moved, was justified by N Gopalaswami Ayyangar, member of the Drafting Committee of the Constitution, on 17^th October, 1949 in these words: “In the first place there has been a war going on within the limits of Jammu & Kashmir. There was a cease-fire agreed to at the beginning of this year and that cease-fire is still on. But the conditions in the State are still abnormal.it is, therefore, necessary that administration of the State should be geared to these unusual conditions until normal life is restored…. We are still entangled with the United Nations in regard to Jammu & Kashmir and it is not possible to say now when we shall be free from this entanglement. That can only take place when the Kashmir problem is satisfactorily settled…. We are also committed to ascertaining the will of the people by means of a plebiscite provided that peaceful and normal conditions are restored….”

Article 370 of the Indian Constitution, provided “Temporary provisions with respect to the State of Jammu and Kashmir”. It laid out six special provisions providing; the region to make its own laws in all matters except finance, defence, foreign affairs and communications, a separate flag and denied property rights in the region to the outsiders. Article 370(3) empowered the president to make an order abrogating or amending it. But for this also “the recommendation” of the constituent assembly was “necessary before the president issues such a notification”.  The question, then is, after the dissolution of the Constituent Assembly in 1956, didn’t the power of abrogation of Article 370 also cease?

While the framers of Indian Constitution were uncomfortable with being ’entangled’ on Kashmir dispute, they acknowledged that the Kashmir dispute, until such time that it was conclusively settled by reference to the people, must be accorded a special status as a temporary measure, given the conditions in the state were ‘abnormal’.

Article 35A [now scrapped] of the Indian Constitution empowered the State of Jammu and Kashmir to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. This was added to the Indian Constitution through The Constitution (Application to Jammu and Kashmir) Order, 1954.

On 5^th August, 2019, the state of India through The Constitution (Application of Jammu & Kashmir) Order, 2019 superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time, withdrawing the special status of Kashmir and extending the Indian Constitution to the state of Jammu & Kashmir.

Article 370 was introduced, as can be seen, from the debates in the assembly as special measure given the historical development of the region and in order to preserve its unique identity.  The Delhi Agreement of 24^th July. 1952, between the State of Jammu & Kashmir and India, is a testament to India’s unequivocal admission to such arrangement – and that arrangement could not be annulled without express authorization of the people of Jammu & Kashmir.

The circumstances in which the special status of Kashmir was usurped also merit discussion here. Mehbooba Mufti’s coalition government was dissolved by the Governor Satyapal Malik on 21.11.2018 by exercising powers under section 53 of the Constitution of State of Jammu & Kashmir. There was no representative government – had been none since June of 2018; so when The Constitution (Application of Jammu & Kashmir) Order, 2019 was passed no prior concurrence was sought from the Government of State of Jammu and Kashmir manifesting the will of the people.

Governor to the state is appointed by the president in the center and his consent or concurrence cannot be equated with that of the manifest will of the people of Jammu & Kashmir. This is a textbook case of commandeering undermining the concept of Union of Bharat comprising center and the union territories as enshrined in the Indian Constitution. Would these arguments prevail over the Supreme Court of India? The readers of this column know better. The Indian Supreme Court – among other institutions seems to have long raised a white flag and surrendered to Indian far right.

Be that as it may, the constitutionality of The Constitution (Application of Jammu & Kashmir) Order, 2019 is for Indian lawyers to spin and their courts to adjudicate upon. What the state of India in Delhi has done, does not alter the status of Jammu & Kashmir, for the people residing there and nor for the people of Pakistan. Jammu & Kashmir remains an unfinished agenda of partition.

Political pragmatism demands that the line of control resulting from the cease-fire of 17^th December, 1971 is accepted as International border – and perhaps that is where we are headed. But is partition of Kashmir acceptable to the people of Kashmir? Unless the whole of Kashmir on either side of the line of control expresses her will to that effect – there will be no lasting peace in the region – regardless how India and Pakistan position themselves.

Many, like the writer of this column, yearn for a united Kashmir. One day!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn