The dispute over Jammu and Kashmir has long been discussed from an Indian or Pakistani perspective, ignoring the views of those Kashmiris who feel that they have been denied their right to self-determination for over six decades.
By Shams Rehman
At the United Nation’s Third Committee session on ‘Right of People to Self-determination and elimination of racism, racial discrimination, xenophobia and related intolerance’, permanent representative of Pakistan to the UN, Ambassador Masood Khan, expressed disappointment that the people of Jammu and Kashmir have been denied their right to self-determination for over six decades after the UN adopted resolutions on Kashmir. He claimed that Pakistan, UN and people of Jammu and Kashmir agreed to hold a plebiscite in Kashmir – only India has to say yes and engage with Pakistan to resolve the Kashmir issue.
India was represented in the committee by Mr P. Rajeev, a member of the Indian parliament, who dismissed Pakistan’s reference to Kashmir as unwarranted and reiterated the position of his country that Kashmir is an integral part of India. The following is, therefore, an attempt to present the Kashmir question from a Kashmiri perspective and to look beyond the contestations of India and Pakistan.
Is Kashmir an integral part of India or Pakistan?
The very fact that India has to reiterate her claim sixty six years after the adaptation of UN resolutions shows that, at present, the former princely state does not belong to either. If it did, then such a debate would not have been required; there are, afterall, no UN debates about self-determination for Punjab, Sindh, Himachal Paradesh, Gujarat etc.
The dispute over Kashmir is rooted in colonial history; an era when the territories that are now India and Pakistan were directly-ruled by the British, and Kashmir – along with hundreds of princely states – had distinct arrangements with the British crown, separate and away from ‘British India’. The claims by India and Pakistan are based on UN resolutions and such factors as geographical proximity, cultural affinities and religious associations of the state people. Only the colonial and international aspects of the ‘integral part debate’ will be explore here. As far as the geographical proximity and cultural ties are concerned, so many countries in the world share that. The starkest example being the Middle Eastern countries that share everything – religion, language, geography – but remain politically independent and sovereign nation-states, at least legally and constitutionally.
Colonialism – British and Princely India
It was the East India Company that laid the foundations of this distinct political entity on 16th March 1846. On this day, the Company permanently handed over to Maharaja Gulab Singh and his male body heirs all the territories that were officially named as ‘The State of Jammu and Kashmir and Tibet Ha and Aqsai Chann’ – or sometimes Frontier Illaqas (areas) – but have since become commonly known as Kashmir or the Kashmir state. When the Company emerged as the dominant political power in India it was taken over by the British Crown and became (at least at the ruling levels) the source of legislation, use of force, enforcement of decisions and political demarcations. In this context the boundaries of the State of Jammu and Kashmir were drawn, and the sovereignty of Gulab Singh and his heirs recognized by the British and accepted by neighbouring states; including Punjab, from whom the British took Kashmir.
Gulab Singh and three generations of his family ruled Kashmir till the invasion of India and Pakistan in October 1947. The contesting claims regarding who invaded first and with what motive are constantly debated. Once again the official discourse of India and Pakistan renders the ‘other’ responsible for the Kashmir problem, while claiming the entire Kashmir state as their integral part.
Before the departure of the British, Kashmir formed a princely state with full internal autonomy; though not of course without some disagreements. Nevertheless, legally no other state power or authority had any jurisdiction over the 84,000 sq. miles of territory and its population. The Kashmir state – like more than 500 other states of various geographic and demographic sizes – did not form a part of the British India. It was a constituent part of Princely India.
The mechanism formulated by the departing British Colonial rulers to grant freedom to the peoples of British and Princely India was not one and the same. The principle of the Muslim majority forming Pakistan applied only and solely to the areas under direct rule of Britain, known as British India. The princely states – of which Kashmir was one of the largest – became independent under the following clause (b) of the Act.
“the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise;”
In a press conference on 4th June 1947, Mountbatten, the last Viceroy, presented the status and destination of the states in the following framework:
- Indian States were independent in treaty relations with Britain;
- On 15th August 1947, the paramountacy of the British crown was to lapse;
- Consequently the princely states would assume independent status;
- The states would be free to choose one or other constituent assembly.
Several smaller states joined India or Pakistan, but there were some who did not choose the course prescribed by Mountbatten etc. Hyderabad for example, aspired for independence, where a Muslim ruler ruled majority of non-Muslim population; whilst the Muslim ruler of Jonagarh acceded to Pakistan despite its non-Muslim majority population.
In this context, had Hari Singh, the last Maharaja of Kashmir, decided to side with India then there would not been a valid reason for a Pakistani challenge, at least legally. For according to the stated policy of the Muslim League, the state rulers had the right to decide the future of their states. However, the Kashmiri Maharaja did not opt for India or Pakistan. He decided to remain independent. On 12th August 1947 he sent a telegram to the heads of India and Pakistan asking for the existing arrangements between the Kashmir state and British India (now India and Pakistan) to continue. While Pakistan accepted the offer, India asked for further time to cosnider.
As alluded above there are contested claims about the invasion in Kashmir and what drove the Indian and Pakistani civil militants of Jan Sang and tribal groups, followed by regular armies, to attack the state. Pakistan claims that the Muslim population revolted against the Maharaja and the tribal groups went to help their endangered Muslim brethren.
India, however, argues that the Kashmiri ruler invited India to help against the invaders, which was provided only after Hari Singh signed an accession document. India also claims that on the basis of this document, Kashmir became an integral part of the Indian Union. This claims is then blended into Indian official discourse through politicized myths, heritage and history which ‘proves’ that Kashmir has always been a natural – and hence integral – part and the ‘crown of the secular body’ of India.
Pakistan, on the other hand, has primarily built its case on the ‘Two Nation Theory’ and UN resolutions. The Two Nation Theory was a term coined to mean the partition of the British India on the basis of Muslim majority areas becoming part of Pakistan. Since this principle was applicable solely and exclusively to the British India of which Kashmir was not a part in any sense of the word, the Pakistani claims on Kashmir on these bases have no legal status.
The United Nations and Kashmir
The case of Kashmir was taken to UN by the Indian government on 1st January 1948. Interestingly, the issue was initially registered as the ‘situation in Kashmir’, before gradually changing into the ‘dispute over Kashmir’ between India and Pakistan. Similarly, the question of the political future of Kashmir also went through changes while under discussion at the UN. Initially, it was described as an issue of ‘future status’, but was then changed to that of ‘accession’.
The details of the deliberations were summarized in the first resolution of the UN Commission for India and Pakistan, passed on 13th August 1948. In addition to agreeing a ceasefire, this resolution asks Pakistan to take all of her civilians and military personnel and non-resident Pakistanis out of Kashmir before India was to withdraw a bulk of her armies, after which Kashmiris will decide the future of the state through a plebiscite.
This plebiscite never happened. Pakistan claims that India did not withdraw her armies, whilst India argues that withdrawal of her armies was to follow the withdrawal of Pakistan’s armies, which never happened. However, gradually the Indian argument changed into a claim that after the accession by the Kashmiri Maharaja Hari Singh in 1947 and its ratification by the Kashmir Assembly, headed by the National Conference in 1949, Kashmir became an integral and inseparable part of India.
Why then did India take the Kashmir case to the UN and accept to withdraw its armies and hold a plebiscite for Kashmiris to decide the future of Kashmir? It can be argued that India took the case to UN in 1948 before the affirmation of accession by the Kashmir assembly, howeer, the question remains why India sat through and accepted so many resolutions discussed and passed after 1949 Some BJP activists dismiss the entire UN exercise as a blunder by the socialist Nehru. However, given that Indian government from day one was a democratic set-up, blaming one person makes little sense.
A Kashmiri Perspective
Both of the above discourses dominated the internal Kashmiri political landscape across the Line of Control for many years following the division of the state through controlled mechanisms of governance in the Indian and Pakistani occupied parts of Kashmir state. The Majority of the people supporting the National Conference, on the one side, and the Muslim Conference, on the other – at least in the Indian occupied Valley and the Pakistani-occupied ‘Azad’ (Free) Kashmir – waited with great optimism for the International community to make Indian and Pakistani rulers fulfil their promise to give Kashmiris the right to determine their future. However, after clashes between the aspirations of Kashmiris for independence, and of the Indian and Pakistani rulers for accession, optimism began to give way to skepticism and resentment as early as 1953 when the Indian government deposed the head of Kashmiri Government in IOK (Sheikh Abdullah) and the Pakistani government did the same in POK (Sardar Ibrahim).
By the late sixties, these aspirations evolved into the language of national liberation, personified in one Maqbool Bhatt, 29, who denounced the UN as a club of the ruling classes whose decisions reflected the class and national interests of the ruling layers of powerful nations. While Pakistan imprisoned and tortured Bhatt and his comrades, and India executed him on 11th February 1984, the world remained almost indifferent to this largely peaceful resistance, with the Ganga Hijacking and killing of an Indian diplomat in Birmingham as two exceptions.
By the eighties, the politics of resistance had become a reality that could no longer be ignored on either side of the Line of Control. Generally speaking, independence politics has grown stronger in all parts of Kashmir, especially in the Valley, AJK and Gilgit Baltistan; as well as amongst the diaspora. This despite constant bullying, harassment, suppression and oppression of the Indian and Pakistani states, and the apparent indifference of the international community.
Today, the Kashmiri perspective on Kashmir can be summarized as follow:
- The state was formed through the Amritsar Treaty that handed over forever Kashmir to the independent possession of Maharaja Gulab Singh and his male body heirs.
- Gulab Sing became the sovereign and ruled the state as such for over a century.
- In response to the State for State People Movement, the Maharaja brought about the State Subject legislation in the twenties that defined citizenship of the state separate and away from British India (later Pakistan and India, respectively);
- Responding to the popular politics of the thirties, the Kashmiri monarchy agreed to initiate a modern democratic set-up by holding multi-party elections for the first (partially) elected legislative assembly through limited franchise in 1934;
- The leadership of the two major and most popular Kashmiri parties – the National Conference and the Muslim Conference – reached an agreement for further governance reform, by introducing multiparty government, elected through a one-person-one-vote system, with the Maharaja to remain as the figure head;
- States had the legal and constitutional right to remain independent;
- The Maharaja of Kashmir decided to remain independent according to provisions in the British Indian declaration for Princely States;
- The Maharaja asked the Indian and Pakistani governments for a standstill agreement for peace and progress;
- Accession with India was conditional and temporally linked with the restoration of peace before people could decide on the future of the state;
- The case of Kashmir was taken to UN by the Indian government two months after the accession by the Maharaja of Kashmir with India;
- The first resolution by the UN Commission on 13th August 1948 recognised the unfettered right of Kashmiri citizens (the state subjects) to self-determination, including and with the right to independence;
- The presence of both India and Pakistan – in all their civil and military forms – has become illegal after they failed to fulfil their responsibilities to protect the rights of Kashmiri citizens, withdraw their forces and have the future of Kashmir determined through a fair and democratic plebiscite;
- Under their illegal occupation, both India and Pakistan – whilst holding some form of elections, but without the participation of pro-independence Kashmiris – rendered the process undemocratic and colonial-like;
- While there are voices in some parts of Kashmir that disassociate themselves from the Kashmiri identity because they claim that it has become synonymous to the valley or Islam, and there are voices within the resistance movement with an exclusionist agenda, this situation is not peculiar to Kashmir. Almost all countries with multiple identities face this challenge including India, Pakistan and Britain. A majority of pro-independence Kashmiris accept the diversity argument but they denounce the official discourse of India and Pakistan, which rejects the independent Kashmir demands because of the multiple and pluralist nature of the Kashmiri state and society as irrelevant and irrational;
- The fact aspirations for independence have grown stronger under both armies shows that Indian and Pakistani occupation in Kashmir is the major cause not only of the poverty, deprivation and underdevelopment but also the extremism and hatred;
- Both India and Pakistan are not in Kashmir to protect Kashmiris from the ‘other’ but for the resources of Kashmir – mainly water but also minerals and forests. Mass migration – especially from ‘Azad’ Kashmir to UK, Europe, America, Canada and the Middle East – has also added foreign exchange and access to economic markets as reasons for not leaving Kashmir.
- The governments of India and Pakistan are unlikely to give Kashmiris the right to decide their future unless there is pressure from the citizens of India, Pakistan and the wider countries of South Asia to resolve the dispute in a fair and democratic manner;
In closing, Kashmir is not an issue about being an integral part of any of the occupying countries or that of ‘property ownership’. It is an issue of universally-recognised human and democratic rights for over 16 million people across the divided state and the Kashmiri diaspora around the world; particularly the right of the Kashmiri people to self-determination without any restrictions whatsoever. In other words, Kashmir is for all Kashmiris.
Shams Rehman is a sociologist by qualification and a freelance writer, JKTV Anchor and linguist based in Oldham, England since 1988.