Destruction and Injustice

Index

Destruction and Injustice

The  Tribulations   Of   Kashmiri   Pandits

Accession and UN Resolutions

Sanjay Kaul

Events of last decade have once again generated some curiosity and interest in the issue of Jammu & Kashmir.  Basic facts pertaining to this issue are well established.  However, there has been a concerted dis-information campaign that presents a distorted historical account of the developments that led to the irrevocable accession of the state of Jammu & Kashmir to India.  The historical perspective needs to be put in the correct, factual light.

The princely state of Jammu & Kashmir had an area of 86, 000 Sq miles. It had four distinct regions: Jammu, Kashmir, Ladakh and Gilgit.  Of the original State of Jammu & Kashmir 46% is currently with India, 35% is under illegal occupation of Pakistan, and 19% is occupied by China.  In the current portions of J&K State with India , the break up of population by religion is: Muslims 64%, Hindus 32%, Sikhs, Ladakh’s and others make up the remaining 4%.  Jammu is predominantly Hindu whereas Ladakh is Buddhist.  Muslim majority areas represent only 35 % of the total States area.

Before partition Kashmiris of all religions sought an independent, united India , and found their political voice in the Kashmiri National Conference (NC) Party led by Sheikh Mohammed Abdullah (a Muslim). 

At the time of partition areas of India under direct rule of the British were called “ British India ” and other areas ruled by local rulers but under treaty with the British were called “Indian India.”  The British India Act of 1947 established the process for independence of India ; British India was to be partitioned into India and Pakistan. For every princely state, although legally they would become independent, they were required by this act to accede to one or other dominion, keeping in mind the geographical contiguity of their state.

There was no provision mandating the consultation with the people of the princely state concerned, the ruler had the final say in determining which country to join. Pakistan became an Islamic state as per its constitution whereas India with a majority Hindu population chose to be a secular and a democratic republic.  The ruler of Jammu and Kashmir, Maharaja Hari Singh, had not yet exercised his accession option when the partition created self-governing Pakistan and India.

Pakistan took advantage of Jammu & Kashmir States ruler’s indecision and sent in North-West Frontier Tribals to capture Kashmir .  Maharaja’s army was unable to repel this attack, and realizing the precarious position of his state the Maharaja chose to join India. Sheikh Mohammed Abdullah and NC party fully supported this decision.   

NC Declaration: We the people of Jammu and Kashmir , have thrown our lot with the Indian people, not in a heat of passion or a moment of despair, but by a deliberate choice.”

-  Sheikh Abdullah: 29 May 1947

National Conference’s

Accession to India : The Accession of the state of Jammu and Kashmir to India , signed by the Maharaja (erstwhile ruler of the State) on 26^th October 1947, was completely valid in terms of the Government of India Act (1935), Indian Independence Act (1947) and international law and was total and irrevocable. The largest political party in the state, the National Conference, also supported the Accession.

In the Indian Independence Act there was no provision for any conditional accession. The Instrument of Accession executed by the Maharaja was the same as the ones executed by over 500 princely states in India.  There has been no complication in any of the other cases. There would have been none in this case either, except for Pakistan 's action in sending in tribal invaders first (in October 1947) and its own regular troops later (May 1948).

Lord Mountbatten's (Governor General Of India) acceptance of the Instrument of Accession was unconditional. He said: "I do hereby accept this Instrument of Accession". The Instrument of Accession was complete with the offer and acceptance.  There can, therefore, be no question of negotiating on the question of accession of the State of Jammu & Kashmir to India.

Reference to UN: India made a reference to the United Nations on 1^st January 1948 under Article 35 of its Charter, to prevent a war between the two newly independent countries, which would have become increasingly likely if the tribal invaders assisted first indirectly and then actively by the Pakistan army had persisted with their actions against India in Kashmir .  The Government of India requested the Security Council "to put an end immediately to the giving of such assistance which was an act of aggression against India.”

UN Resolution of 1948: Despite India 's completely legal and valid position on Jammu & Kashmir, in order to find a solution to the situation created by Pakistan 's aggression, India had accepted the option of holding a plebiscite in J&K.  It had, however, been made clear by India that holding of such a plebiscite would be conditional upon Pakistan fulfilling conditions laid out in UN resolutions of 13 August, 1948.

UN Resolution 1948

•Part I:

– India and Pakistan Agree to Issue Simultaneous Ceasefire Orders.

–Two Governments Agree to create and Maintain an Atmosphere Favorable to the Promotion of Further Negotiations.

•Part II (a):

–Pakistani Troops Have Invaded Kashmir .

–Pakistan Must Withdraw its Nationals and Tribesmen from Kashmir .

•Part II (b):

–When the U.N. Notifies India that Pakistani Nationals and Tribesmen have been Withdrawn, India will also Withdraw the Bulk of its Forces.

•Part III:

–Future Status of the State of Jammu and Kashmir shall be Determined in Accordance with the Will of the People.

Geo-Political Conditions in J&K State :

• Article 370 of the Indian Constitution provides “Additional Autonomy” to the State to preserve its identity.

• From 1948 to 1975, there was not a single case of Human Rights abuse (as reported to Human Rights organizations) in J&K, even though Indian Army was present in large numbers.

• Two Pakistani Invasions (1965, 1971) found no takers in Kashmir .  In fact, Local Muslim populace assisted in catching Pakistani intruders.

• J&K Ruled by Muslim dominated governments and received highest per capita financial aid from the Indian Federal Government

Geo-Political Conditions in Pak Occupied Kashmir (POK):

• The percentage of Kashmiris has dwindled as POK has become a Punjabi Sunni colony.  More than two-thirds of the population of POK is now non-Kashmiri.

• Hindu Kashmiris have been completely eliminated from POK.

• Northern areas of POK (Gilgit, Baltistan etc) are explicitly ruled as colonies by Sunni Punjabis of Pakistan.

• Part of the area of POK was gifted by Pakistan to China.

Preconditions for Plebiscite were never fulfilled by Pakistan.  As a result normal conditions under which a plebiscite could be held were never created.  India had accepted these resolutions, subject to assurances, and in the hope of having the matter resolved quickly.  Pakistan , however, wrecked the implementation of the resolutions at that time by not fulfilling the preconditions perhaps because it was fully aware of what the result of such an exercise would be.  The Pakistani troops, which were to withdraw from the state, did not do so.

Choice Made by the People of J&K and Elections in Kashmir: The UN resolutions did not recognise or grant any role to Pakistan in the conduct of the plebiscite.  India waited several years for Pakistan to fulfil the preconditions of the UN Resolution.  When that did not happen, the people of Jammu and Kashmir then convened a Constituent Assembly in 1951 (with majority Muslim representatives), which once again reaffirmed the Accession of the State to India in 1956 and finalised the Constitution for the State.  The Jammu and Kashmir Constitution reaffirms that "the State is and shall be an integral part of the Union of India."  The people, therefore, were consulted and their “Will” established.  India consulted the people of J&K state by a normal process of democratic election for a “Constituent Assembly".  In several subsequent local, state and national elections the people of Jammu and Kashmir have repeatedly exercised their democratic choice.

Pakistan -a State founded on a purely communal basis found it impossible not to push for Muslim Kashmir’s integration with itself. Instead of acting on the recommendations of the UN resolution of 1948 and vacating the occupied territory, Pakistan has unsuccessfully waged “conventional” war with India three times in 1947, 1965 and 1971 hoping to gain control of Kashmir .

War and its Implications:  Pakistan tried to impose a military solution on J&K in 1965, by instigating a war against India. The people of J&K resisted this new invasion. Pakistan 's failure to impose this military solution and the efforts of the people of J&K to thwart the aims and designs of the Pakistani invaders are well documented.

Pakistan imposed yet another war on India in 1971. After this conflict, bilateral talks were held in June-July 1972 and the 'Simla Agreement' signed on 2 July 1972 .  In terms of this Agreement, which was duly ratified by the two Governments in 1972 itself, the two countries undertook to resolve all differences bilaterally and peacefully.  Pakistan , through its commitments enshrined in this Agreement, accepted the need to shift the J&K issue from the UN to the bilateral plane.  The issue that remains to be resolved is the vacation by Pakistan of territory illegally occupied by it.

To avenge the defeat it suffered, Pakistan started to export Islamic radicalism to Kashmir and hence the current situation.

JIHAD:  General Zia ul Haq leads military coup, executes Bhutto and steers Pakistan towards radical Islamic State.

•Emergence of Radical Islam in Iran (1979) has a profound effect in the entire south Asian neighborhood, not just in Iran.  Soviet Union invades Afghanistan in 1979 followed by the Taliban Movement, created new “Armies of Allah” in the Sub-Continent (1980) and leads to unchecked flow of arms and aid to ISI.

•ISI begins game on two fronts:

–In Afghanistan train and fund the Taliban to replace the Masood government

–In Kashmir train and fund militant separatists for terrorists attacks supported by increasing infiltration by non Kashmiris into the valley

Some Kashmiri Muslims claim that this is a political fight; a response to dissatisfaction with local elected politicians.  In fact, Pakistan ’s encouragement of both a “gun culture” and a “holy war” to islamicize the region is the root cause of current events in Kashmir .  The frontline victims of the armed insurgency in Kashmir are the Hindus who have been ethnically cleansed.  The Buddhists in Ladakh have nothing to do with the aspirations of the Kashmiri Muslims. The Dogras of Jammu (predominantly Hindu) likewise see no relationship with the aspirations of the Kashmiri Muslims.  The minorities in Kashmir valley led by Kashmiri Pandits do not want Pakistan and neither do they want to be part of independent Kashmir . 

In a diverse country like India, disaffection and discontent are not uncommon. Indian democracy has the necessary resilience to accommodate genuine grievances within the framework of our sovereignty, unity and integrity. Government of India has expressed its willingness to accommodate the legitimate political demands of the people of the state of J&K.  Jammu & Kashmir is an integral part of India. There can be no compromise on India ’s unity and integrity.