Kashmir : The 70-Year Itch

Bibekananda Ray

Ranbir Singh's grandson Hari Singh was Maharaja of Kashmir in 1947; although a monarchy, there were two parties in J & K before the Partition—the National Conference, led by Sheikh Abdullah and the All J & K Muslim Conference of Azad Kashmir, founded and led by Chaudhary Ghulam Abbas. The NC supported Kashmir's accession to India but the MC was in favour of accession to Pakistan.The NC was popular in Kashmir Valley and the MC was so in Jammu region. Hindus, Buddhists and Sikhs favoured joining India but Muslims were divided. Those of western Jammu and frontier districts wanted J & K to join Pakistan; ethnic Muslims were ambivalent; they neither wanted to be in or belong to Pakistan, nor with India. As J & K shared a 3,323 km or 2,065-mile border with Pakistan and more than ¾th of its people were Muslims, it was anticipated that Maharaja would have it acceded it to Pakistan. When he prevaricated, tribal raiders from the North West Frontier Province entered Kashmir and went on a wanton spree of killing, looting, and raping Hindu women. On 26th October, they reached the outskirts of Srinagar and launched guerrilla attacks to coerce him to do so. He appealed to Governor General Lord Mountbatten for rescue, who agreed to do so, if he acceded to India. Indian troops were airlifted into Kashmir and drove out the Pak-sponsored guerrillas except from a small part of the state. Mountbatten flew to Lahore on 1st November 1947, met Muhammad Ali Jinnah and proposed that if the ruler of a princely State did not accede to either country (given 'dominion status') as per the wishes of the majority population (e.g., the rulers of Junagad, Hyderabad and Kashmir), the accession should be decided by an 'impartial reference to the will of the people'. Jinnah rejected the offer but the Prime Ministers of India and Pakistan—Jawaharlal Nehru and Liaquat Ali Khan—met in December, that year, where Nehru informed Khan of New Delhi's intention to refer the dispute to the United Nations under Article 35 of the UN Charter. Later, he did approach the UN with request to mediate. The UN mission insisted that the opinion of Kashmiris must be ascertained but India insisted that no referendum could take place until the whole of Kashmir was vacated by intruders. Toward the end of 1948, both countries agreed on ceasefire under UN auspices.

On 1st January 1948, India made a complaint against Pak-sponsored terrorists to the UN Security Council; it passed a Resolution (39 of 1948) and set up the UN  Commission for India and Pakistan (UNCIP) to mediate. It passed another Resolution, No. 47 on 21st April 1948, calling for immediate cease-fire and urged Pakistan "to withdraw tribesmen and Pakistani nationals from J& K. It also asked New Delhi to reduce its Army presence to the minimum, after which the circumstances for holding a plebiscite should be put into effect to decide accession. After cease-fire, it set up the UN Military Observer Group for India and Pakistan (UNMOGIP) to monitor it. However, it was not until 1st January 1949 that the ceasefire could be actually enforced but the two countries failed to forge a truce owing to differences over interpretation of the procedure for, and the extent of, demilitarisation. One sticking point was, whether the Azad Kashmiri army was to be disbanded during the truce, or at the plebiscite stage. The UNCIP which made three visits to the two countries in 1948 and 1949 reported to the Security Council in August 1948 that "the presence of troops of Pakistan" inside Kashmir represented a 'material change' in the situation. It proposed two processes for withdrawal of forces. In the first, Pakistan would withdraw its forces and other nationals. In the second, "when the UNCIP would tell New Delhi that Pakistani withdrawal has been complete, India would withdraw majority of its forces. After both withdrawals were complete, a plebiscite would be held". The resolution was accepted by India but rejected by Pakistan.

The UNSC passed one more Resolution on Kashmir- 47 of 1948. Under the latter, the UNCIP was enlarged to a five-member body, represented by Argentina, Belgium, Colombia, Czechoslovakia and the United States and tasked with preparing both countries for a plebiscite. India and Pakistan signed the Karachi Agreement in March 1951 to demarcate a ceasefire line, supervised by observers. After the expiry of the UNCIP, the Security Council passed Resolution 91 (1951) and raised a UN Military Observer Group in India and Pakistan (UNMOGIP) to observe and report violations of ceasefire. After the war of 1971, the two countries signed the Shimla Agreement in 1972 to define the Line of Control (Loc) in Kashmir. India and Pakistan disagreed on the UNMOGIP's mandate in Kashmir, because India argued that its mandate has lapsed after the Simla agreement because it was raised to observe ceasefire according to the Karachi Agreement. The UN Secretary General let the UNMOGIP continue because no resolution has been passed to terminate it. India partly restricted the activities of the unarmed 45 UN observers on the Indian side of the LoC on the grounds that its mandate has expired. Both India and Pakistan are publishing maps, showing J&K as territory of each, regardless of actual control.

The Resolution asked India to appoint a plebiscite administrator nominated by the United Nations to conduct a free and impartial plebiscite. Both India and Pakistan raised objections to it. After considerable efforts, the Commission declared its failure in December 1949. India also stated that, despite having the State's legal accession by Maharaja, it was prepared to hold a plebiscite to honour the people's wishes and abide by its results. Pakistan denied involvement in the conflict and made counter-accusations that India had acquired the State's accession by "fraud and violence" and that it was conducting 'genocide' against Muslims.

On 18th March 1950, China gave to the Security Council a draft resolution, calling on Pakistan to withdraw its nationals and urged the people of the valley to choose between India and Pakistan. It also called upon India to create a Plebiscite Administration (with directors nominated by the UNSC) and an interim administration, representing major political groups in the state. It also called for measures for return of refugees, release of political prisoners and for political freedom. The Sino-Pakistan Agreement of 1963 demarcated the border between Pakistan and China; under it, China ceded over 1,942 to 5,180 sq. km. to Pakistan and Pakistan recognising Chinese sovereignty over hundreds of square kilometres in Northern Kashmir and Ladakh. The agreement is not recognised as legal by India, as New Delhi also claims sovereignty over part of the land.

The Security Council did not take sides in the dispute but did not condemn Pakistan as aggressor either, as India demanded; nor did it question or examine the legalities of the accession. If the UNSC had sought an advisory opinion from the International Court of Justice on the legal issues, it would have been in a stronger position to identify either side as wrong and solving the dispute would have been easier. Thus its approach was "timid" and its evaluation of the dispute was not realistic. With passing of time, political cleavages in the two countries over Kashmir widened and holding of a plebiscite became a mirage. The Security Council apparently viewed the Kashmir dispute as primarily political instead of looking at its legality; particularly, whether its accession to India was valid. It implicitly assumed that accession was valid but it was incomplete, subject to its ratification by the people of the State. By taking it as a political dispute rather than legal, its mediation efforts were too weak to compel India and Pakistan to agree for a resolution.

Both countries objected to UN Resolution No. 47, India for treating Pakistan on an equal footing with it, ignoring its aggression and Kashmir's legal accession to India. It also objected to it for not allowing it to retain troops in the state for defence. It also felt that the requirement of a coalition government would put Sheikh Abdullah, then Prime Minister of Kashmir, in an impossible situation. The powers given to the Plebiscite Administrator were far too wide and would have undermined the State's sovereignty; the provision for the return of all refugees was also unrealistic. Finally, India wanted Pakistan to be excluded from the conduct of the plebiscite. On the other hand, Pakistan objected to the retention of Indian forces in Kashmir, even at the minimum level and wanted an equal representation for the Muslim Conference, the dominant party of the Pakistani-held Kashmir in the government of the state. It held that the Security Council had been biased toward Pakistan but the final proposals were modified by the United States and Britain to "mollify" India; Britain came for particular criticism. The three-part structure of the Resolution implied Pakistan's "aggression" by making the truce agreement precede the consultation for the future of the state. Plebiscite was not mentioned, keeping open other avenues for determining the will of the people, such as electing a constituent assembly. India feared that a plebiscite would incite religious passions and unleash 'disruptive forces'. While India accepted it, Pakistan made so many reservations and qualifications that it was 'tantamount to rejection'. It defined the functions of the Plebiscite Administrator who would, among others, decide the final disposal of the Indian and Azad Kashmir forces. Despite reservations, questions and dissents, the two governments finally accepted the proposals, leading to a ceasefire in Kashmir on 1st January 1949. The Commission incorporated the supplement into a new resolution approved on 5 January 1949. The Commission returned in February 1949 to implement the ceasefire, set up a truce agreement and prepare for a plebiscite but in trying to do so faced "enormous difficulties". After multiple and futile rounds of proposals for demilitarisation, the Commission proposed arbitration, which Pakistan accepted but India did not. The Commission admitted failure and submitted its final report to the Security Council on 9th December 1949. It recommended that the Commission be replaced by a single mediator and that the UN representatives should have the authority to settle issues by arbitration.

A few days before death, Nehru sent a freshly released Sheikh Abdullah to meet Pakistan President, Ayub Khan proposing to have a confederation of India, Pakistan and Kashmir. The proposal was contemptuously rejected as 'absurd' by the Pakistan's military junta.

In 1972, following the Indo-Pakistani War of 1971, India and Pakistan signed the Shimla Agreement, agreeing to resolve all their differences through bilateral negotiations. The United States, United Kingdom and most Western governments have since supported this approach. In 2001, the then Secretary-General , Kofi Annan during visits to India and Pakistan, clarified that Kashmir resolutions are only advisory recommendations and they should not be compared to those on East Timor and Iraq. In 2003, the then Pakistan President Pervez Musharraf announced that Pakistan was willing to "leave aside" the demand for UN resolutions and explore alternative bilateral options for resolving the dispute.

New Delhi have all along been justifying legal occupation of J & K on the ground of Maharaja signing the Instrument of Accession. It deemed Pak assistance to the Afghan rebel forces and the Pakhtoon tribes a hostile act and involvement of more Pakistan army an invasion of Indian territory. It held that if a plebiscite meant confirmation of accession, it had been already done in all respects and Pakistan could not claim to be on equal footing with India in the matter. India argued that the UN Security Council had ignored the fact that Pakistan was an aggressor in a territory which had legally become part of India by the Instrument of Accession. On the contrary, Islamabad argued that Jammu & Kashmir had executed a Standstill Agreement with Pakistan that precluded it from having agreements with other countries. It also held that the Maharaja had no authority to execute accession, because his people had revolted, forcing him to flee to Srinagar. It claimed that the Azad Kashmir movement and tribal incursions were indigenous and spontaneous; Pakistan's assistance to them cannot be criticised. In short, India wanted the UN to equally treat two countries in withdrawal of troops and nationals and regard Pakistan as an 'aggressor', whereas Pakistan insisted on parity. The UN mediators were inclined toward parity, with which India was not satisfied. In the end, no withdrawal was ever made; India insisted that Pakistan had to withdraw first but Pakistan held that there was no guarantee that India would withdraw afterwards. No agreement could be reached between the two countries on demilitarisation.

Frontier
Vol. 51, No. 39, Mar 31 - Apr 6, 2019