Is Kashmir a Domestic or International Issue?

The Kashmir dispute was internationalised quite early in its history and has never been a purely domestic issue, apart from the fact that the Valley cannot be subjugated by force.

“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 a large number of other countries also took interest and gave advice…. We do not want to win people against their will and with the help of armed force, and if the people of Jammu and Kashmir State so wish it, to part company from us, they can go their way and we shall go our way. We want no forced marriages, no forced unions like this….

“But whether it is a pain and a torment, if the people of Kashmir want to go out, let them go because we will not keep them against their will however painful it may be to us. That is the policy that India will pursue and because India will pursue that policy people will not leave her, people will cleave to her and come to her. Because the strongest bonds that bind will not be the bonds of your armies or even of your Constitution to which so much reference has been made, but bonds which are stronger than the Constitution and laws and armies—bonds that bind through love and affection and understanding of various peoples.”

—Prime Minister Jawaharlal Nehru
in Parliament on August 7, 1952.

As late as February 25, 1955, Nehru was asked by Lakshmi Charan in the Lok Sabha: “In view of the fact that the Kashmir Constituent Assembly has ratified the accession of the state to India, what will be the terms of discussion on Kashmir with the Pakistani Prime Minister?” Nehru replied: “A question like this cannot be solved unilaterally.”

On July 8, 1949, Nehru said that “Kashmir is a world question”. He was all for mediation and said on November 12, 1949, at a press conference in London: “India continues to suggest that there should be mediation and that this mediation should be under the auspices of the United Nations partly because we want to increase the prestige of the United Nations.”

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On his return to India, Nehru declared at a press conference in New Delhi on November 16, 1949: “If you rule out mediation, then the only two things that remain are either continuation of the deadlock or war. So far as we are concerned, and I have said this repeatedly, we want to rule out war.”

Two questions arise: When did India resile from this stand, and why? Has the world deferred to this volte-face? The second is easily answered. At the recent G7 Summit at Biarritz, France, Prime Minister Narendra Modi ruled out mediation but not the fact that Kashmir is a dispute between India and Pakistan to be resolved bilaterally. This was the stand he took in talks with US President Donald Trump and French President Emmanuel Macron. “All the issues between India and Pakistan are bilateral in nature.” The existence of the issues is affirmation implicitly of the issue – Kashmir. Trump said on August 25 that Modi and he had discussed Kashmir “at great length”. Clearly, no internal matter is this.

The stark reality is that the Kashmir dispute began as an international question at the very outset. No sooner had they gained independence than both India and Pakistan sought the help and mediation of Britain’s Prime Minister Clement Attlee. The Government of India’s White Paper on Jammu & Kashmir, published in March 1948, reveals that. Initially, Nehru sought Kashmir’s accession to India before Sheikh Abdullah’s release from prison. The standstill agreement presented to Maharaja Hari Singh listed, in item 7 of the Schedule, “foreign affairs” as a subject for Central control. It was an Instrument of Accession in disguise.

On September 27, 1947, before Abdullah’s release from prison on September 29, Nehru wrote to Vallabhbhai Patel: “The approach of winter is going to cut off Kashmir from the rest of India…. Therefore it is important that something should be done before these winter conditions set in. This means practically by the end of October or, at the latest, the beginning of November…. I rather doubt if the Maharaja and the State forces can meet the situation by themselves and without some popular help. They will be isolated from the rest of India. If their own people go against them, it will be very difficult to meet the situation.”

To this day, Kashmir is cut off from India for days on end during the winter. So much for “territorial contingency”. On October 25, 1947, immediately on the morrow of the tribal raid from Pakistan, Nehru cabled Attlee: “I should like to make it clear that question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of the people and we adhere to this view” (White Paper, page 46).

On October 30, 1947, even after the ruler had acceded to India on October 26, Nehru wrote to Pakistan’s Prime Minister Liaquat Ali Khan: “Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision about the future of the State to the people of the State is not merely a pledge to your government but also to the people of Kashmir and to the world” (White Paper, page 51).

Lord Mountbatten on November 1, 1947, and Nehru November 8, injected the communal factor in a proposal to Pakistan. “Our proposals which we have repeatedly stated are:- (one) that the Government of Pakistan should publicly undertake to do their utmost to compel the raiders to withdraw from Kashmir; (two) that the Government of India should repeat their declaration that they will withdraw their troops from Kashmir soil as soon as the raiders have withdrawn and law and order are restored; (three) that the Governments of India and Pakistan should make a joint request to U.N.O. to undertake a plebiscite in Kashmir at the earliest possible date.

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“The above conclusions relate only to Kashmir, but it is essential in order to restore good relations between the two Dominions that there should be acceptance of the principle that, where the ruler of a State does not belong to the community to which the majority of his subjects belong, and where the State has not acceded to that Dominion whose majority community is the same as the State’s, the question whether the State should finally accede to one or the other of the Dominions should be ascertained by reference to the will of the people” (White Paper, page 62).

India decided to move the UN Security Council on December 31, 1947. Pakistan filed a counter complaint to the Security Council. N. Gopalaswami Ayyangar said on January 15, 1948, that Kashmir “could 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 U.N” (227th meeting, Security Council, 1948, page 32). He repeated this on February 3, 1948 – and he was telling a deliberate lie to deceive the Council.

This sordid tale emerged by sheer chance from a compilation of the papers of Sir Tej Bahadur Sapru (Crusader for Self-Rule, edited by Rima Hooja, Rawat Publications, Jaipur and New Delhi). In a letter to Sapru, dated May 8, 1948, N. Gopalaswami Ayyangar wrote: “We cannot afford to let Kashmir secede from India. There are one thousand and one hundred reasons against it and I sincerely hope with you that Kashmir will be saved for us” (page 497). Imperialism in excelsis; the people be damned. Sapru had advised against a plebiscite.

Nehru’s doublespeak

Nothing had changed in the three months between February 3, 1948, and May 8, 1948, to warrant such a volte face. It is glaringly obvious that Ayyangar reflected Nehru’s policy – Nehru never, ever wanted a plebiscite. He said revealingly in the Constituent Assembly (Legislative) on November 25, 1947: “These last few weeks have forged a new link which none can sunder” (White Paper, page 71).

The motions of talks with the UN Commission for India and Pakistan (UNCIP) and the UN mediators General A.G.L. McNaughten, Sir Owen Dixon, Dr Frank Graham and Gunnar Jarring were gone through, tongue in cheek. At his very first meeting with the UNCIP, Nehru hinted at the partition of Jammu and Kashmir.

Nehru’s tactics are revealed in two unimpeachable documents. One is his note to the Jammu and Kashmir Premier Sheikh Abdullah, which he wrote from Sonamarg in Kashmir on August 25, 1952. He wanted the Sheikh to ditch the plebiscite and finalise the accession. He had, he disclosed, come to a firm conclusion much earlier, in 1948, against a plebiscite. He wanted an accord on the basis of the status quo.

The note was studded with gems of Nehruvian realpolitik, which led to the war with China. He wrote:

“We are superior to Pakistan in military and industrial power. But that superiority is not so great as to produce results quickly either in war or by fear of war. Therefore, our national interest demands that we should adopt a peaceful policy towards Pakistan and, at the same time, add to our strength. Strength ultimately comes not from the defence forces, but the industrial and economic background behind them. As we grow in strength, and we are likely to do so, Pakistan will feel less and less inclined to threaten or harass us, and a time will come when, through sheer force of circumstances, it will be in a mood to accept a settlement which we consider fair, whether in Kashmir or elsewhere. The only danger is that the Government of Pakistan, or some military clique there, might, in sheer desperation launch on an adventure…. Purely from the point of view of India’s national interest, we cannot agree, unless circumstances force us, to see this part of Kashmir State go to Pakistan. There are no circumstances visible that can force us to do this. Pakistan cannot. The U.N. cannot override our wishes in this matter….

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“If the people of Kashmir clearly and definitely wish to part company from India, there the matter ends, however we may dislike it or however disadvantageous it may be to India. But, as I have stated above, I see no chance or whatever of any proper plebiscite determining this question, because the plebiscite itself raises highly controversial issues in regard to the conditions governing it and all that. So, ruling out the plebiscite, we have to accept the present leadership of Kashmir and the Constituent Assembly there as representing the will of the people of Kashmir. If the Constituent Assembly told India to get out of Kashmir, we would get out, because under no circumstances can we remain here against the expressed will of the people. As far as I know, the Constituent Assembly will not do such a thing and therefore, the question does not arise for me.”

Now read this:

“It must be remembered that the people of the Kashmir Valley and roundabout, though highly gifted in many ways—in intelligence, in artisanship, etc.—are not what are called a virile people. They are soft and addicted to easy living….

“The result of all these considerations is that the only desirable future for the State is with a close association with India, retaining her autonomy in most ways; that Kashmir and Jammu should hold together; that we should consolidate our position in these areas and not care very much for what happens in ‘Azad Kashmir’ areas…. What is required is a firm and clear outlook, and no debate about basic issues. If we have that outlook, it just does not matter what the U.N. thinks or what Pakistan does….

“The common people are primarily interested in a few things—an honest administration and cheap and adequate food. If they get this, then they are more or less content…. It is dangerous to make promises which cannot be fulfilled, or to talk tall just to gain the goodwill of the people for the moment. Facts cannot be ignored and have to be faced. The most important thing today in Kashmir is efficiency in administration and in food policy” (Selected Works of Jawaharlal Nehru, Second Series, Volume 23, pages 322-30).

The people had no soul, no craving for azadi. His contempt for them was profound and unconcealed.

Since the Sheikh refused to betray his people, he was put behind bars for 11 years on Nehru’s written instructions to M.O. Mathai on July 31, 1953. He denied this to his daughter, to the president and to parliament.

The other document

Now, for the other document in which he revealed his tactics. If he could write as he did to the Sheikh on August 25, 1952, why did he agree with the Prime Minister of Pakistan, Mohammed Ali Bogra, on August 20, 1953, that “the Kashmir dispute… should be settled in accordance with the wishes of the people of the State”? Nehru sent an emissary, Ajit Prasad Jain, to Karan Singh to explain why. Had he not stemmed the revolt in the Valley and the international uproar by this manoeuvre, the UN’s mediators would have descended on New Delhi, he wrote to Karan Singh, on August 21, 1953 (Selected Works of Jawaharlal Nehru, Volume 23, page 347). On April 13, 1956, Nehru told a rally in New Delhi that he was prepared to accept the ceasefire line as an international boundary. That is where we are now. Nehru declared closure domestically by installing stooges as Premiers of Jammu and Kashmir and internationally by ruling out mediation altogether.

The Simla Pact of July 3, 1972, is irrelevant. The Government of India’s measures on August 5, 2019, are illegal; it has wrecked the Pact by wrecking Jammu and Kashmir. It certainly does not bar recourse to the UN. No bilateral accord can. Prime Minister Indira Gandhi told the Lok Sabha on August 2, 1972: “I am not bothered whether they go to the United Nations…. If Pakistan goes to the United Nations we can meet them there.” Clearly, the Simla Pact did not bar reference to the UN. It now stands wrecked by the break-up of the State itself in breach of the Pact, which forbids unilateral action.

India’s record on mediation is odd. It accepted the Colombo Powers’ mediation in 1963 on the boundary dispute with China. There is not one country in South Asia in whose internal affairs India has not intervened. In 1987, it imposed by armed force a settlement of the Tamil issue on Sri Lanka. More recently, the Indian Foreign Secretary lectured to Nepal on its Constitution.

As for Pakistan, India has merrily interfered in its internal affairs. The UN’s resolutions on plebiscite are as dead as the dodo. The same cannot be said of the Security Council’s resolution, adopted with Soviet backing, which barred unilateral declaration of closure. Read this Resolution of January 24, 1957: “Reminding the governments and authorities concerned of the principle embodied in its resolutions 47 (1948) of 21 April 1948, 51 (1948) of 3 June 1948, 80 (1950) of 14 March 1950 and 91 (1951) of 30 March 1951, and the United Nations Commission for India and Pakistan resolutions of 13 August 1948 and 5 January 1949, that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations,

“1. Reaffirms the affirmation in its resolution 91 (1951) and declares that the convening of a Constituent Assembly as recommended by the General Council of the ‘All Jammu and Kashmir National Conference’ and any action that assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or 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 with the above principle; 2. Decide to continue its consideration of the dispute.”

There is one map which India cannot ban. It is the UN’s map of South Asia. Its legend declares emphatically: “The final status of Jammu and Kashmir has not yet been agreed upon by the parties.” A look at similar situations elsewhere brings out the utter immaturity of India’s cry of secession and against two flags and two Prime Ministers in one country.

Similar situations, different solutions

1. Scotland: If the UK has a Prime Minister, Scotland has a First Minister. No cries of treason were heard when it demanded secession from the UK through a referendum in 2014. It lost. The Union of Scotland and England created the United Kingdom by a treaty in 1707. They had shared a King since 1603, but each had its own parliament. The Treaty of Union united the two kingdoms “forever” – unlike Jammu and Kashmir’s Instrument of Accession in 1947 with a proviso for a plebiscite.

The UK has had a rash of devolutions of power. The first Scottish general election was held in May 1999. The Scotland Act of 1998 is more liberal than the one of 1978. This trend is seen in the Aland Islands as well as in Greenland. The Scottish Constitutional Convention declared: “We, gathered at the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of government suited to their needs.” In 1997, UK Prime Minister Tony Blair called Scotland “a proud historic nation”. Kashmir is 5,000 years old.

The Government of Wales Acts, 1998 and 2006, devolved power on Wales but less than that devolved on Scotland. All this in the UK, a far smaller country than India, but one whose leaders had far bigger minds and vision. Witness the Belfast Agreement with Ireland on Northern Ireland for an imaginative power-sharing agreement between Catholics and Protestants, Christians both.

2. Sweden and Finland’s Accord on autonomy for the Aland Islands (1991). They have a “provincial citizenship”, a right to fly their own flag, to issue stamps and passports bearing the word “Aland”. Finland’s autonomy statute of 1991 is more generous than that of 1921. The Islands have a veto on Finnish laws affecting them.

3. The accord between Italy and Austria in South Tyrol was endorsed by the political party that represented the Germans, who constituted a majority in the region.

4. The Quebec Act, 1774, recognised French law and language and the Catholic faith. There was no cry for a “uniform civil code”. Quebec sought secession from Canada. The Supreme Court of Canada’s advisory opinion on August 20, 1998, holds a lesson on judicial liberalism and statesmanship for the Supreme Court of India. It is unlikely, though, that it will be learnt.

It said: “To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. But there is more. Our law’s claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the sovereign will or majority rule alone, to the exclusion of other constitutional values.

“The continued existence and operation of the Canadian constitutional order cannot remain unaffected by the unambiguous expression of a clear majority of Quebecers that they no longer wish to remain in Canada.”

Quebec was not accused of treason.

5. The Aceh Accord of May 12, 2000, between Indonesia’s government and the rebel GAM (the Free Aceh Movement). The memorandum of understanding signed at Helsinki by representatives of the Indonesian government and GAM, on August 15, 2005, resolved the knotty issues of arms surrender and independence. A new law was to be enacted by March 31, 2006, to make Aceh autonomous in all spheres, except defence, foreign affairs, national security, fiscal matters and justice and freedom of religion. Jakarta accepted Aceh’s right to use regional symbols, including a flag, a crest and a hymn. It can seek foreign loans, enjoy unhindered access to foreign countries, by sea and air and retain 70 per cent of revenues from all the resources in the territory.

6. Greenland: The last word belongs to Denmark’s huge territory, Greenland. The Home Rule Act, 1978, was replaced by the Act on Greenland Self-Government on June 12, 2009. The Act shows the liberal outlook of its framers. It was enacted after a referendum on November 25, 2008. It was notified to the UN Secretary-General. Greenland got more than a separate flag. It required some presence internationally. Copenhagen retains subjects like foreign affairs, defence and security—a good model for a Kashmir settlement.

Denmark is a small country, but its leaders had vision. India is a large country. Its leaders are devoid of vision. Pakistan’s war of aggression in 1965 killed the plebiscite. It cannot get by a vote what it lost at its chosen forum, the battlefield. But even after the war, Prime Minister Lal Bahadur Shastri testified: “Almost every country wants that we should somehow settle the question of Kashmir peacefully.” Acharya Vinoba Bhave’s formulation cannot be bettered: “The Kashmir question can be regarded as settled only when India, Pakistan, Kashmir and the world declare it as settled.” Such fundamentals have not changed, cannot change.

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That is a vision far beyond the Sangh Parivar. Its immediate need is destruction of the historic state of Kashmir, to which Jammu was joined by the Treaty of Amritsar in 1846. K.M. Munshi characterised Hyderabad as the seat of an “alien (read: Muslim) culture”. It was, in fact, a synthetic Urdu culture. A Muslim-majority Kashmir is an eyesore. Section 47 of the Reorganisation Bill slyly undermines Urdu, the official language even under Dogra rule.

The slogan “abrogate Article 370” encapsulates the extinction of Kashmir’s identity and culture. For, if you can make historic Kashmir a Union Territory, you can do just what you like to make it a colony and its people constitutional serfs.

The international dimension of this criminal folly is the scrapping of the Simla Pact and revival of international interest in Kashmir. Paragraph 6 of the Pact envisages “a final settlement of Jammu and Kashmir” at a summit by the “heads of government of India and Pakistan”. Once the State itself is destroyed, this becomes a nullity. In the widest of terms, paragraph 1 (ii) says “neither side shall unilaterally alter the situation”, a word of the widest amplitude. Eroded over nearly half a century, the Simla Pact has now been rendered void.

Bernie Sanders, US Senator and Democratic presidential contender, says he is “deeply concerned” at the situation in Kashmir and asks Trump to “speak out boldly” in support of a UN-backed settlement. The European Union’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, “reaffirmed the E.U.’s [European Union] support to a peaceful solution of the crisis in Kashmir through bilateral dialogue between India and Pakistan”.

Governor Satya Pal Malik said on August 29 that “we will engage with the Kashmiri civil society. There will be no dialogue with the mainstream political parties or the separatists”. Defence Minister Rajnath Singh has said that “Pakistan has no locus standi on Kashmir”, a position that is contrary to paragraph 6 of the Simla Pact.

All doors to peace are shut, internally and externally. Assembly elections will be held after the state is softened up, but not before 2021. The Centre’s gauleiters will do the job of softening.

What Edmund Burke said in the House of Commons on March 21, 1775, is all too relevant here. “Those who understand the military art will, of course, have some predilection for it. Those who wield the thunder of the State may have more confidence in the efficacy of arms. But I confess, possibly for want of this knowledge, my opinion is much more in favour of prudent management, than of force; considering force not as an odious, but a feeble instrument, for preserving a people so numerous, so active, so growing, so spirited as this, in a profitable and subordinate connection with us.

“First, Sir, permit me to observe, that the use of force alone is but temporary. It may subdue for a moment; but it does not remove the necessity of subduing again; and a nation is not governed, which is perpetually to be conquered.

“My next objection is its uncertainty. Terror is not always the effect of force; and an armament is not a victory. If you do not succeed, you are without resource; for, conciliation failing, force remains; but, force failing, no further hope of reconciliation is left. Power and authority are sometimes bought by kindness; but they can never be begged as alms by an impoverished and defeated violence.

“A further objection to force is, that you impair the object by your very endeavours to preserve it. The thing you fought for is not the thing which you recover; but depreciated, sunk, wasted, and consumed in the contest.”

The people of Kashmir will not surrender. They will revolt.

This article was first published on Frontline.

A.G. Noorani is a lawyer and writer.