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The Kashmir Dispute

The Kashmir Dispute

History and the Way Forward

Homes dynamited, children orphaned, women widowed and half-widowed, eyes blinded, legs amputated, basic facilities destroyed, human rights violated, political rights trampled on, legal rights usurped; this is the valley of Kashmir the present state of which is exposing the reality of the United Nations Charter. It lays bare the liberal values of Western democracies, the jurisdiction of international court of arbitration, the powers of Amnesty International and lofty slogans of numerous global institutions. Kashmir is the world’s bloodiest dispute that has claimed the lives of at least 96,000 people since January 1989. Besides, more than 20,000 women have been rendered widows in this prolonged conflict while 215,000 children have been orphaned owing to worst form of India’s state terrorism. Although the decades-old neglect, discrimination and suppression of Kashmiri identity coupled with the power-centric approach of successive regimes in India gave birth to an armed resistance, or more rightly the freedom movement, in 1989, the post-Burhan Wani era can particularly be cited as the most transformative phase in this stretched struggle of the Kashmiris who only demand that their right to self-determination be accepted and accorded to them. Tech-savvy youth, mostly college and university students, has made the freedom struggle highly visible in international media. Images of stone-pelting girls have further attracted the attention of the international community to the festering wound of Kashmir. This renewed focus warrants discussion on the possible alternatives to resolve this issue. In this regard, a brief overview of the historical developments would help better understand this conflict.

The awful story began with the infamous ‘sell’ of Kashmir by the British Raj to Maharaja Gulab Singh, the Dogra ruler of Jammu, Ladakh and Baltistan, under the Treaty of Amritsar (1846). Under the said Treaty, the Dogra ruler had to pay 75 lakhs (7.5 million) Nanak Shahi rupees for the whole territory of Kashmir. It is widely believed that Maharaja was awarded for the services he rendered for the British East India Company in its Afghan expeditions and for the critical role he played in protecting the British interests in Punjab. This notorious sell against the wishes of the inhabitants of Kashmir sowed the seeds of discontent, disaffection and frustration among the Muslims of the region, and they furiously resisted this and rose for their political, legal, religious and economic rights. Dogra rulers responded with coercion, disproportionate use of force, imprisonment and capital punishments to thousands of Muslims. The very first organized political movement in Kashmir started in 1932 under the leadership of Sheikh Muhammad Abdullah when he established a political party “Muslim Conference” which was later renamed as National Conference in 1939 under the influence of Jawaharlal Nehru. The National Conference split in 1942, with Ghulam Abbas forming his own faction under the name Muslim Conference. As names reflect, Sheikh Abdullah-led National Conference projected itself as a secular party that was representative of all religious communities of Jammu and Kashmir (J&K) and supported Kashmir’s accession to India whereas Ghulam Abbas-led Muslim Conference supported the accession of princely state to Pakistan and led the movement for Azad Kashmir.

Then came the tumultuous years of 1947 and 1948! The partition; the unjust demarcation of boundary line in the form of Radcliffe Award that also provided India with a land route to Kashmir, i.e. Gurdaspur district; signing of a standstill agreement with Pakistan by Maharaja Hari Singh on August 12, 1947; the Poonch Rebellion by Muslims for annexation with Pakistan; successful war of liberation by people of Gilgit-Baltistan and its accession to Pakistan in November 1947; the armed intervention in Kashmir by the tribesmen – with the support of Pakistan army; the signing of the controversial, so-called Instrument of Accession with India by Maharaja; UN-sponsored ceasefire; and UN Security Council’s resolutions (39 & 47) pledging a plebiscite to determine the public opinion for deciding the future political status of Kashmir, these incidents are well-known as a part of history, therefore, they do not need any further discussion. As far as Indian pledge of holding plebiscite in Kashmir is concerned, the Indian government blatantly reneged on this promise when the country’s parliament passed a bill in 1965 whereby Kashmir was declared a province and an integral part of the Indian Union.

Read More: The Kashmir challenge

The dismemberment of Pakistan in 1971 sent shockwaves in Indian-Occupied Kashmir (IOK) as well. The National Conference, which had been supporting the enforcement of UNSC resolutions as the only way forward in resolving the Kashmir dispute, signed Indira-Sheikh Accord in 1975 whereby it dropped the demand for the right of self-determination in exchange for a special status for Kashmir which was granted with the insertion of irrevocable Article 370 in the Indian constitution. With this accord, the Kashmiris’ peaceful struggle for self-determination effectively came to an end. Later, the sheer disaffection and frustration arising out of the Accord, the availability of arms, overwhelmingly dominating role of the Indian Union, continuous denial of right of self-determination to Kashmiris and the rigged election in 1989 further aggravated ethno-religious sentiments creating thereby an enabling environment for a full-blown armed resist once that has refused to die till date, despite huge deployment of Indian army personnel – 700,000 armed officials – giving it extremely high 70:1200, a record in Guinness Book of World Record.

After a cursory look at the past, it seems apposite that we analyze the respective stances of Pakistan and India so as to suggest pragmatic alternatives for sorting the issue out. India claims sovereignty over all parts of J&K on the basis of the legality and validity of the so-called Instrument of Accession. It asserts that it had been ratified by the Constituent Assembly and the constitution of IOK does also validate the accession. It further argues that passing of the UNSC resolutions 39 and 47 under non-binding Chapter 6 of the UN Charter, as well as the demographic and geographic changes in the region have diluted their relevance to resolving the issue.

Another argument that India puts forward is a provision in the Simla Accord wherein both countries agreed to resolve the Kashmir dispute bilaterally. It, therefore, asseverates that any foreign intervention – by the UN or any third country – violates the Simla Accord. Moreover, the UN’s decision to remove Kashmir from its unresolved agenda in 2010 further augmented the Indian stance. Based upon these arguments, India considers the accession of Kashmir as final and irrevocable.

Pakistan, however, challenges the validity and legality of the Instrument of Accession and cites the circumstances under which it was signed as a primary reason. Pakistan not only rejects the Indian claim as fraudulent, but also declares the whole episode of accession as a conspiracy hatched by India, Maharaja and Lord Mountbatten. Pakistan argues that the Instrument was signed only to have a provisional arrangement and the condition of plebiscite to determine the popular will was part of the agreement. Since Maharaja had also signed the Standstill Agreement with Pakistan, his act of calling Indian Army for help was irrational and uncalled for, let alone being illegal or unconstitutional. Moreover, when Maharaja decided to accede to India (as per the Indian claim), he had lost a major part of his state and, hence, lost authority to decide the future of the lost territories. Besides legal arguments, Pakistan highlights also the continuous violation of human rights in Kashmir under the draconian laws like Armed Forces Special Powers Act and Public Safety Act that empower security forces to detain, blind and even kill the locals with impunity. In this regard, the first-ever UN Human Rights Commission Report on Kashmir that called for the formulation of UN Commission for Inquiry to investigate the ongoing violation of human rights in IOK clearly vindicates Pakistan’s stance. Pakistan also highlights the extremely low turnout in elections – only 4.2 percent in the most recent Local Bodies Election (October 2018) – to prove its case that the people of Kashmir should be given internationally recognized right of self-determination rather than a sham internal autonomy. Based upon these legalistic arguments and documented evidences of human rights violations, Pakistan considers Kashmir as the unfinished agenda of partition that needs immediate intervention of international community.

In view of the above-discussed stances maintained by India and Pakistan, it is vividly clear that the annexation of Kashmir with either Pakistan or India seems an implausible idea in the near future. Given the unabated, state-led Indian terrorism and the looming escalation of the skirmishes along the LoC into full-blown nuclear war, it is of pressing urgency to seek alternative solutions that create a win-win situation for all parties involved in the conflict. In this regard, the following few suggestions need thorough discussion.

Maintaining status quo: It implies continuing with the administration of a major part of Kashmir, Jammu and Ladakh by India and the administration of Azad Kashmir and Gilgit-Biltistan by Pakistan. Though India claims the whole of Kashmir, it has shown its willingness to turn the de-facto Line of Control into a de-jure international border. This proposal has the backing of UK and USA. Pakistan vehemently opposes this option as it would be tantamount to its surrender before India and ignoring the aspirations of the people of Kashmir who have been fighting against India since partition.

Establishment of an independent J&K: This option is also put forward as a possible alternative solution. This too, has several drawbacks as a financially weak, militarily vulnerable, socially fragmented and politically and administratively inexperienced state of Jammu and Kashmir will have to spend massively to defend itself against nuclear armed Pakistan and India and it would drain its resources massively. Moreover, the independence of J&K would necessitate the surrender of Pakistan-administered and Indian-occupied territories to the nascent state and given the strategic assets both states have in these areas, it is next to impossible that this would ever happen. The fear of balkanization of India and consequent regional instability would also bar international community to back this option.

Trifurcation: Another option is trifurcation of the state of Jammu and Kashmir. Under this proposed arrangement, Jammu, having 66 percent Hindu and 30 percent Muslim population, and Buddhist Ladakh would be given to India and Azad Kashmir and Northern Areas (Gilgit-Baltistan) would continue to be administrated by Pakistan. This scenario apparently seems most feasible as every party involved would get some share of the pie and the continuously suffering people of Kashmir would get liberation from India. Though Pakistan is least expected to object to this proposal, the most likely resistance would come from Hindu hardliners and hawks in Indian governments who would resist any move that would deprive India of the strategically important territory. With approximately 1800 square miles landmass, independent Kashmir would be the smallest state of South Asia that would have to exploit its potential in tourism, handicraft and agriculture to sustain itself economically. This proposal is considered by many the best alternative. But, it does require some tweaking to be acceptable to all the stakeholders.

Chenab Formula: It is also a serious suggestion to resolve the Kashmir dispute. This formula discusses the division of Jammu & Kashmir along the river Chenab. This would divide the region into religiously-distinguished areas where India would get Hindu-majority areas and Pakistan would get Muslim-majority areas. This arrangement would require voluntary surrender of major portion of Indian-occupied Kashmir and one cannot find any incentive which would compel India to contemplate to take such action.

In 2006, the then President of Pakistan, General Pervez Musharaf, came with some historically unprecedented suggestions to settle the issue. These suggestions, also known as Musharraf’s four-point formula, included the status quo of LoC with free movement of people and ideas on both sides of the border (soft borders); the self-government or autonomy in both sides of Kashmir but not independence; the phased demilitarization of the region; and a joint supervisory mechanism with representation of Pakistan, India and Kashmiri leadership to implement these steps smoothly. Though this proposal met with refusal from India and acceptance from Hurriyet leadership, Pakistan had shown considerable flexibility in its stance by not inviting UN intervention, seeking self-government rather than self-determination, and minimizing its control over Azad Kashmir. In this regard, it is also worth-mentioning that a noted Indian journalist Barkha Dutt has disclosed in a tweet that PM Imran Khan has hinted at adopting the Musharraf formula to resolve the Kashmir dispute, provided that India responds favourably to the peace initiatives taken by PTI-led government.

Ever since the partition, Kashmir has been the bone of contention between Pakistan and India and hitherto an insurmountable impediment to benefitting from the huge trade and economic potential that can be exploited through peaceful coexistence. Now that the PTI-led government seems willing to make peace and exploit the bilateral trade potential, it is high time the Indian government abandoned its myopic and vote-bank-driven foreign policy so as to move forward to avail this golden opportunity to resolve this long-standing issue, once for all, so that our future generations may taste the fruits of prosperity and development.



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