By Tabish Rafiq Mir:
Maharaja Hari Singh, during the time of India’s Independence, chose to keep Kashmir independent. That, for him, backfired when Pakistan allegedly sent tribals to annex Kashmir. Maharaja Hari Singh asked India for help. The Indian state did help, but it was based on whether Hari Singh would sign a treaty/instrument of accession, which he did. This treaty/instrument of accession entails that the Indian government will intervene in matters of defense, communication, foreign affairs and other ancillary terms, while the state will still hold power over the governance of the valley.
Maharaja Hari Singh on October 26, 1947, wrote a letter to the then Governor-General of India, Lord Mountbatten, asking for protection against the invading forces: “With the conditions obtaining at present in my State and the great emergency of situation as it exists, I have no option but to ask for help from Indian Dominion. Naturally, they can not send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government.”
Lord Mountbatten accepted the accession with a remark, “In the special circumstances mentioned by Your Highness, my government has decided to accept the accession of Kashmir State to the Dominion of India. It is my government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invaders, the question of State’s accession should be settled by a reference to the people… Meanwhile, in response to Your Highness’ appeal for military aid, action has been taken today to send troops of the Indian Army to Kashmir to help your own forces to defend your territory and to protect the lives, property and honour of your people.”
Based on the two-state theory, Muslim-dominated Kashmir was supposed to collaborate with Pakistan. Lord Mountbatten’s remark incited unrest between India and Pakistan, where the latter questioned the legality of the accession of Kashmir to the former.
A special status under Article 370 was given to Kashmir which was diluted over the entire post-Independence era. While holding Pakistani forces at bay, Nehru approached the UN with the treaty of accession and the UN Commission for India and Pakistan (UNCIP) passed a resolution:
2. Withdrawal of Pakistani troops and tribals, and consequently the Indian troops.
In 1951, the first local elections in Kashmir were held. The Treaty Of Accession was formally ratified under the then Prime Minister Bakshi Ghulam Mohammed, in 1954.
With whatever knowledge that I possess, I have tried to provide an argumentative analysis, both political and humanitarian of the Kashmir conflict:
Democratically, Hari Singh never had the right to decide the future of Kashmir, as he was never an elected ruler of Kashmir. But, considering the infiltration from Pakistan, and the clauses of the Instrument of Accession, one might just understand that there wasn’t much he could have done on his own. Hence, for a would-be democracy, the legitimacy of an instrument of accession, signed without the consent of its inhabitants, is questionable. The treaty was formally ratified by an appointed Prime Minister (Bakshi Ghulam Mohammed), and not an elected one. It should be noted that the elected Prime Minister of that time, Sheikh Abdullah frequently skipped appearances at the UN for the representation of the plebiscite for Kashmiri people. This was probably why he was, therefore, dismissed and arrested. So, when Bakshi Ghulam Mohammed ratified the treaty, this was only a repetition of what Hari Singh had done. That is, the signing of the treaty by a person who was not an elected representative of the people.
Indian Minister for minority affairs, Najma Heptullah, addressing a conference in Kashmir, is reported to have said, “The elections that were held in 1987 were rigged. I still remember there was a party called Muslim United Front (MUF) which had a stronghold in Bijbehara and Islamabad, but only four of its people managed to win. It was only after those elections that violence broke out in Kashmir… I told Rajiv Gandhi and Farooq Abdullah that either party should sit in opposition for better governance but nobody listened to me and they signed the accord. Two months after the elections, I was told to leave the General Secretary post in Congress.”
P. K. Dave, former Chief Secretary of the Jammu and Kashmir Government, confessed in 1991, “Elections in Kashmir have been rigged from the beginning.”
On August 24, 2002, Amy Waldman wrote in the New York Times that “rigged elections in Kashmir in 1989 helped trigger the armed uprising that India estimates has taken more than 35,000 lives”.
Jayaprakash Narayan confided to Indira Gandhi in 1966: “We profess democracy but rule by force in Kashmir…We profess secularism but let Hindu nationalism stampede us into trying to establish it by repression…[The Kashmir] problem exists not because Pakistan wants to grab Kashmir, but because there is deep and widespread political discontent among the people.”
I, however, am questioning the legitimacy of the first state election held in 1951. The treaty of accession clearly demarcates local, state-related matters, and a political allegiance to India. So, even with a treaty of accession (which was not yet formally ratified at this time), were these first elections held by the Indian state in Kashmir, legitimate/legal? Or was this done just to somehow compensate for the plebiscite?
According to the Treaty/Instrument of Accession, a plebiscite in Kashmir can only be carried out after the withdrawal of forces, of Pakistan and then of India. Since both are present in the region, there can be no plebiscite.
India and Pakistan both have resisted plebiscite efforts. The only difference between the intervention by India and Pakistan is that Maharaja Hari Singh asked the Indians to intervene, while Pakistan at that time resorted to savagery and plunder by invading Kashmir when it was vulnerable. Pakistan does not belong in Kashmir in the first place and holds no legal grounds to be in any part of Kashmir whatsoever. Had the Indian Army gone ahead and driven the entire Pakistani army out of Kashmir at that time, there would have been no future Kashmir-centric Pakistan intervention, and over 40,000 people might not have died following the armed insurgency of the ’90s.
The first condition of the Treaty Of Accession, where the Pakistani presence had to be eliminated would have been fulfilled, and after the systematic withdrawal of Indian forces, there would have been a plebiscite, which I am guessing India would have unanimously won considering Kashmiris did make a very conscious call to stay with India when given the chance. This would have been a successful unanimous accession to India. However, Nehru referred the matter to the UN and an LoC was created after that. So, as long as there is Pakistani army in PoK, the Indian army has to be present in IoK, in accordance with the treaty of accession, and the UN resolution.
The presence of Pakistani army in the region, however, is illegitimate. While the presence of the Indian army is not.
While the presence of Indian forces in Kashmir is only right, it’s fault lies in the dilution of the special status promised to Kashmir, the rigged elections, and the grotesque human rights violations in the region.
Despite the violations, the only legal/legitimate Indian presence in Kashmir is that of the army.
The humanitarian argument is not very detailed, and does not require a lot of elucidation.
In light of the human rights violations, all those treaties of accession and/or any promises in the past are irrelevant if Kashmir wants freedom now. Because that is what the right to self-determination entails.
Now that all that has been explained, I would like to say something.
Armed militancy in Kashmir is understandable, not commendable. Besides, raising guns against the third biggest army in the world, which has all the legal grounds to be there, is only going to infuriate it further, or worse, give them a reason to exercise AFSPA and PSA with further impunity. When you cannot appropriate the forces, taking up arms against such an army is just suicide. If the casualties are just increasing and the Indian state is just as relentless, then is it just the army killing the civilians, or are the civilians responsible too?
It is true that only Kashmiris have the right to determine what happens to them, but if they do attain what they have set out to achieve, what do they do with this newfound freedom? Is free, independent Kashmir the real solution?
Once Kashmir is freed, I predict a scramble among pretty much every south Asian power hulking over a land as vulnerable and lucrative as Kashmir. Where is the sovereignty in that?
I predict sectarian violence on a multitudinous scale. I predict mass killings of Shias by the majority Sunnis, and Sunnis by Shias, or a ’90s type mass exodus of the next minority. Depending on the population statistics, it is not hard to predict the nature and outcome of this: Victors, and the dead.
I can’t even begin to express the horror of a possible implementation of Sharia law in an independent Kashmir, which, with the currently well-funded Wahabism and Salafism wave in Kashmir, is very much imminent.
Kashmiris have suffered for more than just these 20 years, and not much has been achieved.
Words, however, need no armoury or an arsenal, and they are inexhaustible, and that is how an accord must be reached.
Kashmir may not be an integral part of India, but it can be. The effort has to be bilateral and simultaneous. The people of Kashmir and the central government have to reach an accord, mutually. The people do not have to give up exclusively, nor does the government. This has to involve demilitarisation and a simultaneous first legitimate accession to India through a plebiscite.
The disputes between India and Pakistan have largely been Kashmir-centric. Pakistan will no longer have a say in the Indian-Kashmir affairs once it legally accedes to India. I see no other way that Kashmir is going to head towards better times.
Morally, I support and commend the call for freedom. Rationally, though, I do not.
I choose a less perilous path, for minimising casualties, and ensuring a better future for the people of Kashmir. Once an agreement is reached for answering all the war crimes in Kashmir, making a truce with India will be a greater, more tolerant, secular thing to do, as opposed to establishing Kashmir as a separate Muslim country.
Until the day a plebiscite is done, no one can call dibs on any Doodh or Kheer that rightfully belongs to the Kashmiris.
Featured image for representation only. Credit: REUTERS/Adnan Abidi.