Calls to resolve the “unfinished agenda/business of the partition” have become a familiar refrain again as India and Pakistan enter another phase of volatility with firing on the Line of Control in Kashmir claiming lives of military personnel as well as of ordinary people of border communities on both sides. At present the casualties remain low but with both sides accelerating their sabre-rattling antics things can get out of hand. Typically both sides lay the blame on the other side and the national media follows suit thus whipping up mass hysteria laced with calls for revenge, punishment and war.
From the Pakistani side it is asserted that “Kashmir is an unfinished agenda of Partition. Pakistan and Kashmir are inseparable.” Therefore peace with India is linked to resolving the Kashmir issue in accordance with the existing UN resolutions. In India, the Hindu Right pedals a thesis worded slightly differently: as the unfinished business of the Partition. The Hindu Right presents an ostensibly logical argument: if India was partitioned in 1947 to give the Muslims a separate state, Pakistan, then what are the 180 million or more Muslims doing in India? A milder variant of this thesis is that Muslims are outsiders and that India is a state for the Hindus. If Muslims want to live in India they must accept the primacy and supremacy of the Hindu nation. In practical terms, this means that constitutionally Hindus should be privileged over Muslims and other minorities in terms of citizenship rights. It is pointed out that Pakistan follows such a practice and so should Hindu India.
Short of winning a war there’s no chance that Kashmir Valley will join Pakistan
Let me grant to both sides that they have a point. Partition bequeathed a legacy of bitter grievances and it is perfectly possible that by selectively reviewing the events which consummated with the gory Partition of 1947, each side can formulate a set of arguments justifying and legitimizing its own position. More than a million people were killed and the biggest migration in history – 14-18 million – mostly to escape death and injury took place as the British transferred power to the Indian and Pakistani governments. The partition trauma continues to cast a long shadow over India-Pakistan relations. However, scoring merely points would not help either side to close the agenda or business of Partition in accordance with its own wishes and preferences and at the expense of the other side. I am afraid it would produce diametrically opposite results: more tension on the borders, firing, terrorism, forced migration, ethnic cleansing, genocide, war, possibly nuclear war.
In this essay, I will review the Pakistani standpoint on Kashmir. Although the partition of India was premised on the assumption that the Subcontinent should be partitioned to create two separate states on the basis of religious contiguity: Muslim-majority areas being given to Pakistan and the rest to India, the division of the Subcontinent on such a basis referred essentially to the areas which were directly ruled by the British and were therefore part of British India. The British Empire, however, included the hundreds of princely states as well. They were not included for partitioning in the 3 June 1947 Partition Plan announced by the British Government. The 18 July 1947 India Independence Act explicitly stated that British paramountcy was not transferred to either India or Pakistan, which meant that the princely states could freely negotiate their relations with India and Pakistan, including remaining independent.
In this regard, it needs to be pointed out that Pakistan created a legal precedence which invested in the rulers the right to decide the future of the princely state. Thus for example, the accessions by the nawabs of Junagarh and Manavadar on 15 September 1947 were accepted by Pakistan as legal and binding, and to this day Pakistan claims at the United Nations the right of these states to be a part of Pakistan. Both these states, far removed from Pakistani territory, were ruled by Muslim princes, but their populations were over 80 per cent Hindu who wanted to join India. Moreover, Mohammad Ali Jinnah had been hobnobbing with Indian princes to accede to Pakistan and such diplomacy extended to convincing Hindu rulers of Hindu-majority areas, well-within Indian Territory to join Pakistan. Most notably the ruler of Jodhpur in the former Rajputhana was approached. He toyed with such an idea but then backed out. So, as far as Pakistan is concerned, the principle of contiguous Muslim-majority areas joining Pakistan did not apply when it came to princely states. The best book on this subject is by Dr Yaqoob Khan Bangash, A Princely Affair: The Accession and Integration of the Princely States of Pakistan, 1947-1955, which I recently reviewed for TheFriday Times.
India is deeply entrenched in its position that Jammu and Kashmir is an integral part of India
Now, with regard to Jammu and Kashmir, it is well-known that the Maharaja wanted to keep his state independent. I have traced the history of the Kashmir dispute in two books: State, Nation and Ethnicity in Contemporary South Asia (1996) and in Pakistan: the Garrison State (2013). The Maharaja ruled over an 80 per cent Muslim population and geographically and economically his State was integrated with what became West Pakistan. However, Pakistan sent armed tribesmen backed by Pakistani regulars into Kashmir on the night of 21-22 October 1947 with a view to overthrowing the rule of the Dogras and integrating that State with Pakistan. That adventure backfired as the tribal mujahideen quickly forgot their mission and began to pillage and loot as well as rape and carry away Kashmiri women, many of whom were later sold in brothels of Pakistan. That generated considerable revulsion among the Kashmiris, including the Muslims, because the raiders did not distinguish between Muslim and non-Muslim women and even raped catholic nuns, something which earned Pakistan a bad name internationally even then. The Maharaja responded by seeking help from India, which was given conditional to his signing the accession bill to join India temporarily on 26 October 1947. Indian troops landed and halted the advance of the men sent from Pakistan. In February 1948 regular Pakistani troops were openly committed to battle and thus began an armed conflict which culminated in a ceasefire on 1 January 1949 negotiated by both sides through the auspices of the United Nations Security Council.
It was India, however, which took the Kashmir dispute to the United Nations. Mountbatten and Nehru committed themselves to holding a plebiscite to ascertain the wishes of the people of Jammu and Kashmir as to whether they wanted to join India or Pakistan through a fair and free plebiscite. The relevant UN resolutions gave the Kashmiris the option to join either India or Pakistan. The third option of an independent Kashmir was not included. Although initially the Kashmiris had been shocked by the excesses of the mujahideen that situation did not last long and Indian intelligence services warned their government that a plebiscite in favour of India was not at all a certainty, and a majority of people may still want to join Pakistan. Since then, India has relied on various legal and political devices to declare the plebiscite redundant and obsolete. Among them are the terms of the UN resolutions which recognize India’s legal right to be in Kashmir. It is laid down that both sides should vacate the princely state before the plebiscite is held, but that since the Maharaja acceded to India it retained the legal right to maintain enough functionaries in Kashmir to organize the plebiscite. The Indian position has been that Pakistan has practically integrated Azad Kashmir into its political mainstream and, therefore, the pre-conditions for holding the plebiscite are no longer fulfilled. It also maintains that an elected Kashmir Legislative Assembly voted for permanent accession to India in 1954 (the October 1947 Accession Bill was about only temporary accession, however) and therefore no reason exists for a plebiscite to be held any more. It asserts that Article 370 of the Indian Constitution confers special status to Kashmir, which ensures that non-Kashmiris cannot buy property or settle down in Kashmir. Moreover, it alleges that Pakistan ceded Kashmir territory to China and therefore the original territorial expanse of that state no longer exists. Further, it is argued that by signing the Simla Agreement in 1972, which recognizes the Kashmir issue as a dispute, but stipulates that it will be resolved through bilateral negotiations, Pakistan has agreed that any scope for UN or any other third party mediation, no longer exists.
In this regard, it is important to remember that from the beginning the UN resolutions on Kashmir were placed under Chapter VI of the UN Charter. Such resolutions are considered non-binding and therefore have no mandatory enforceability in contrast to resolutions passed under Chapter VII. Consequently, any compliance with the UN resolutions requires the voluntary cooperation of the disputing parties. India has steadfastly held on to the view that any third party mediation is out of the question. The reason is of course it knows a plebiscite in which the people of the Indian and Pakistani Kashmirs vote cannot be won. In any case, during the Cold War, the United States and some Western powers used to be sympathetic to the Pakistani position but that is no longer the situation. In March 2001, the then Secretary-General of the United Nations, Kofi Anan remarked that Kashmir resolutions are only advisory recommendations. Moreover, in November 2010, the UN excluded Jammu and Kashmir from its annual list of unresolved international disputes. Even Pakistan’s great friend China has advised a settlement on Kashmir through direct bilateral negotiations. So, short of winning a war over Kashmir with India there seems to be no chance for the resolution of the Kashmir dispute which gives the former Jammu and Kashmir State, as a whole or a part of it such as the Kashmir Valley, to Pakistan. Pakistan did try to change the status quo in Kashmir in 1965, which resulted in a war with India and again at Kargil in 1999 when some forward posts vacated by the Indians during winter were occupied by mujahideen and Pakistani regular troops.
India is deeply entrenched in its position that Jammu and Kashmir is an integral part of India and insists that the only thing to be resolved with Pakistan is to convince it to vacate those parts of Kashmir which are in its possession. India has stationed more than half a million troops in Kashmir to quell the resistance which is widespread throughout the Kashmir Valley. Neither Jammu (predominantly Hindu) nor Ladakh (fifty-fifty Buddhist and Shia Muslims) support the insurgency in the Valley. India is no doubt guilty of massive human rights violations, which have not only been reported by Amnesty International and other international organizations but also by brave and upright Indians. There is absolutely no doubt that India has used excessive force in Kashmir. The resistance is internal but it does get support from Pakistan, including the infiltration by armed men belonging to different Kashmir-specific organizations.
The writer is Professor Emeritus of Political Science, Stockholm University; Honorary Senior Fellow, Institute of South Asian Studies, National University of Singapore. He can be reached at: firstname.lastname@example.org