KASHMIR: Problem & Solution?
OP Gupta, IFS (Retd)?
The root cause of festering Kashmir problem is that all Indian Prime Ministers have only paid lip service to constitutional position that entire J & K including Gilgit and Baltistan etc is an integral part of the Union of India and have shown lack of courage, persistence, strategy and vision to implement this constitutional position.
Other main causes of festering Kashmir problem are [i] J&K Government pursuing anti-Hindu policies in J&K with aid & abetment of all Central Governments, [ii] persistent failure of the Indian Ministries of Information & Broadcasting and External Affairs to keep Indian masses and international public correctly informed about Kashmir issues and [iii] Hindu voters hailing from other provinces not seriously questioning their local MPs about anti-Hindu policies of J&K Government.
Lal Bahadur Shastri returned Haji Pir area of J&K in 1965 to Pakistan, how can an Indian Prime Minister transfer Indian Territory to Pakistan? In 1971 war Indian Army had captured about 6000 sq km of West Pakistan territory and over 93,000 Pak Army personnel which were returned to Pakistan at Simla without securing any tangible gain. It is shocking to recall that at the 1972 Simla Agreement Indira Gandhi, victorious Prime Minister asked ZA Bhutto, the defeated one to formally incorporate PoK into Pakistan and convert cease fire line into international boundary between India and Pakistan. Thus Indira Gandhi herself being of Kashmiri origin suo motu surrendered Indian claim on PoK at Simla. This Indian attitude creates doubts among international community about India’s intensions to regain Pakistan and China occupied parts of J&K. Indian leaders must give up such mindset and sooner the better.
During the NDA regime US based Farooq Kathwari arrived in India with the full knowledge of the Government of India in March 1999 carrying a series of proposals for the creation of an independent Kashmiri State. In many respects Omar Abdullah’s greater autonomy proposals are similar to Kathwari’s.
The 1982 Resettlement Bill of J&K Assembly invites residents of Pak occupied Kashmir, mainly Muslims to return to Indian side and reclaim their properties but J&K government refuses to confer any property rights on Hindu migrants from Pak occupied Kashmir who are living in Indian J&K from 1948. The State government refuses to treat Hindu migrants as state subjects and does not allow them to vote in Assembly elections showing anti-Hindu bias. All Prime Ministers of India including the present one blessed such anti-Hindu policies of J&K Governments.
It is true that the Kashmir problem is creation of Jawahar Lal Nehru as [i] he un-necessarily referred the matter to the UNO in January 1948 when Indian Army was winning battles on ground, and offered to hold plebiscite under UN supervision exceeding his authority in violation of the Indian Constitution, [ii], he prematurely ordered ceasefire and unilaterally enforced it on Indian Army right from January 1948 (much before UN sponsored cease fire agreement of 1949) by ordering Indian military not to initiate new offensives to kick out Pakistan Army from remaining areas of J&K; and, [iii] for sake of Shaikh Abdullah Nehru did not accept the initial offers of Maharaja Hari Singh to merge his state into India twice made in September 1947. (‘Lest We Forget’ (1999), Captain Amrinder Singh, pages 14-15].
Captain Amrinder Singh, a former Congress Chief Minister of Punjab has written in his book: “On 25th October VP Menon arrived at Srinagar by air and with signed copies of the Instruments of Accession returned to Delhi next day. But for Nehru’s intransigence, the accession of J&K might have been completed in early September ’47 and a sizeable force of Indian Army (placed) in position on ground in Kashmir long before the situation had reached a crisis point. Not only would thousands of Kashmiri lives saved but turmoil within the J&K State, which we have witnessed over past fifty years might never have developed and the three wars with Pakistan would also have been avoided. Historians of this period have always chosen to portray Maharaja Hari Singh as weak, indecisive and vacillating. However, when enough time has elapsed to allow them to make an objective assessment of the Kashmir story, it may prove to be the Government of India (i.e. Jawahar Lal Nehru) rather than Maharaja Hari Singh who will be in the dock”.
About accession of J&K the MEA website correctly states: “The Accession of the state of Jammu and Kashmir to India, signed by the Maharaja in October, 1947, was completely valid in terms of the Government of India Act (1935), Indian Independence Act (1947) and international law and was total and irrevocable. The Accession was also supported by the largest political party in the state, the National Conference. In the Indian Independence Act, there was no provision for any conditional accession. The Instrument of Accession executed by the Maharaja was the same as the ones executed by over 500 princely states in India.”
On September 13, 2010 the Cabinet Committee on Security chaired by Prime Minister Manmohan Singh accepted that ‘trust deficit’ and ‘governance deficit’ were among others two biggest problems affecting J&K.
When Kashmiris raise demand of azadi, it is actually demand of azadi from corruption and bribery prevalent among local politicians, demand for better education, better health facility and better employment. But corrupt politicians based in Delhi and Srinagar mis-represent it as demand for independence. Parents and students in J&K want schools and colleges to remain open so that careers of youth are not spoilt. Government should be bold to put down those who are spoiling careers of our youth by misleading them on garden path of plebiscite, azadi, self-rule, and more autonomy etc.
Continuance of the Article 370 of the Constitution of India by successive governments contributes to ‘governance deficit’ in J&K; firstly, epitomised by slack implementation of the Accountability Commission, Vigilance Commission, RTI units etc by local State government. Secondly due to Article 370 the Central Government, the CVC and other Central Agencies find it difficult to introduce as speedily as desirable anti-corruption instruments which would control corrupt activities of local politicians and civil servants. Thirdly Article 370 works as a stumbling block discouraging free flow of private Indian capital into J&K for setting up new industries as Indian citizens from other provinces are not allowed to freely buy land in J&K which has slowed down pace of industrialisation of J&K with consequent higher unemployment of educated Kashimiri youth. So Art 370 should be abolished forthwith by Presidential notification.
The ‘trust deficit’ has been caused by failure of beneficiaries of the Nehru dynasty, and, failure of Indian media in coming forward to defend Jawaharlal Nehru against false accusations that it was Jawaharlal Nehru who went back on his promise of holding plebiscite in J&K under UN supervision. Consequently the Hurriyat leaders and other secessionists successfully paint Nehru & India as the one who went back on promise.
The Times of India (August 7, 2010) quoted Tanvir Ahmad Khan, a local Srinagar trader saying: “The older generation felt betrayed because India went back on its promise of plebiscite. But younger generation is ready to fight for their rights.” TOI of August 9 reported: “Geelani asked New Delhi to fulfill the promise of giving Kashmiris the right of self-determination. Nehru promised Kashmiris the chance to decide their fate in 1948 but never fulfilled the promise.” Allowing such insinuations against Nehru to go unchallenged by Nehru Dynasty controlled Government in New Delhi vitiates atmospherics against India both in the eyes of Kashmiri people as well as in the eyes of international opinion makers.
The fact is that it is not Jawaharlal Nehru but Pakistan which did not fulfill those parts of UNCIP resolution of August 13, 1948 which were pre-conditions for holding plebiscite. Para A of Part II of this resolution required Pakistan first to totally pull out its military and its citizens from J&K, and Para B of Part II required UN to certify pull out of Pak military to India thereafter Part III regarding plebiscite was to be invoked. Till date neither Pakistan has fulfilled its para A obligations nor the UN has fulfilled its para B obligations so stage for holding plebiscite was not allowed by Pakistan to come. So for not holding plebiscite neither Nehru nor any Government of India can be held responsible. As part of solution Indian Government and media must hammer out this point to full saturation.
Pakistan ambassadors invariably used to raise Kashmir issue with me and ask why India was not holding plebiscite. I used to tell them that only after Pakistan withdrew its all citizens and army from all areas it has occupied in J&K and UN certified so that India will be legitimately faced with this question. And when I asked them as to when Pakistan was going to comply with this UNCIP stipulation they used to keep mum and go on the defensive. So Indian Ministers and Indian media should never be on defensive on this point of plebiscite.
This 13 August 1948 UNCIP Resolution accepts Indian sovereignty over Jammu & Kashmir as it expressly allows India to maintain Indian Army in J&K and asked Pakistan to totally withdraw Pak Army and Pak civilians from J&K.
In violation of the UN Resolutions, Pakistan is still in illegal occupation of 86023 sq km territory of the Indian province of J&K comprising what Pakistan calls Azad Kashmir (13528 sq km) and the Northern Areas (72495 sq km of Gilgit, Skardu, Diamir, Ghizar, Ghancha, and Hunza etc).
In 1963, Pakistan violating UN resolutions of maintaining status quo ceded the Shaksgan-Muztagh valley (5180 sq km) to the People’s Republic of China.
The People”s Republic of China is also in illegal occupation of a large chunk of territory (about 42,735 sq km) in Aksai Chin area in J&K.
It may be noted that the People’s Republic of China was not in occupation of any territory of J&K when these UN/UNCIP resolutions were passed in 1948. So pre-1948 status of J&K has been destroyed by Pakistan and China. Now Chinese construction soldiers, about 11000 are there in Gilgit-Baltistan region further destroying pre-1948 status. Now reports have come that Pakistan is planning to lease out Gilgit and Baltistan to China for fifty years.
In view of the above Indian media as part of solution should clarify to the Kashmiri youth that till Pakistan and China are in occupation of J & K territories it is day dreaming to think in terms of plebiscite as plebiscite was to held in all regions of J&K simultaneously.
Geelani faction wants Indian J&K to be merged into Pakistan, whereas majority residents of Jammu, Kargil and Ladakh want to remain within Indian Union. Some residents of Kashmir valley may want independence both from India and Pakistan but they do not know that independent Kashmir is not acceptable even to Pakistan, vide part 2 of Section 7 of the 1974 Constitution of Pak Occupied Kashmir, Kashmiri people residing in Pak occupied J&K and in the Northern Areas are prohibited even from questioning legality & finality of occupation of that part of J&K by Pakistan. It reads: “No person or political party in “Azad Jammu & Kashmir” shall be permitted to propagate against or take part in activities prejudicial or detrimental to, the ideology of the State”s accession to Pakistan.”
All inhabitants of “Azad Jammu & Kashmir” are thus legally bound to swear by finality of accession of Kashmir into Pakistan. No political party can participate in elections if it does not subscribe to the finality of merger of J&K into Pakistan; nobody can get a job without signing this pledge, and, no student can get admission in a school or college if his/her parents do not subscribe to finality of merger of AJK into Pakistan.
No wonder the Jammu & Kashmir Liberation Front (JKLF) (Amanulla Khan Group) based in Pakistan cannot and does not participate in elections held in Pak-occupied areas as it demands independence from Pakistan.
In view of ill treatment of shi’as, ismaelies, sindhis, mohajirs, Baluch and other minorities in Pakistan most of shi’as, ahmadias, ismaelies etc living in Indian J&K are against joining Pakistan. It is because of the fear of ill treatment of shi’as by Sunni centric Pakistan Taliban inspired elements in Indian J&K that during the past two decades Kashmir, particularly Srinagar, saw emergence of Shia enclaves. Zadibal, Bagwanpur, Shalimar and Bemina, the Shia dominated areas of the city absorbed a heavy influx of shia community members from smaller pockets of downtown Srinagar like Kamangarpora, Shamswari, Fateh Kadal, Chinkral Mohal etc. Indian media makes blunder when it incorrectly reports that all Kashmiri Muslims want political separation from India.
Pakistan claims that the “Northern Areas” territories are not part of Jammu & Kashmir State but this claim has been rejected by Pakistan Courts. Pakistan Courts have held that they have no jurisdiction over matters emanating from the Azad Jammu & Kashmir (PLD 1957 WP Lahore 813, Sakhi Daler). The Azad J&K High Court ruled (8th March 1993) that “The Northern areas are and have been part of the State of J&K as it existed before and on 15th August 1947”.
The Northern Areas [Gilgit and Baltistan] do not figure in the territorial definition of Pakistan in the Constitutions of Pakistan of 1956, 1962 and 1973.
The ‘Northern Areas’ has Shiite majority [aghakhanies] whereas Azad Kashmir is sunni dominated. Sunni Muslims are being settled in the Northern areas to suppress shia’s. Genocide of Shiite in Gilgit Baltistan [1988 and 1992-93] has often been reported.
Indian Foreign Policy due to vacillating Indian Prime Ministers has failed to convince many countries about Indian sovereignty on the entire J&K. Many countries even friendly to India maintain that the entire state of J&K is disputed territory such as the USA.
The communiqué issued after the 3rd extraordinary session of the Organisation of Islamic Countries (OIC) held at Mekkah on Dec 7-8, 2005 noted on the issue of J&K that “The Conference extended its support to the people of Jammu and Kashmir for their inalienable right to self determination in accordance with the relevant UN resolutions and the aspirations of the Kashmiri people. It called for respect of the human rights of the Kashmiri people and agreed to provide all possible political and diplomatic support to the true representatives of the Kashmiri people in their struggle against foreign occupation.” Readers may note use of phrase ‘foreign occupation’ in this communiqué.
In brief solutions of Kashmir problem are:  Hindu voters of other provinces should start pro-actively questioning their local MPs, MLAs and corporators about anti-Hindu policies being pursued by J&K Government.
 Indian Ministers, Indian diplomats, Indian media and Indian intellectuals should join hands to tell truth to residents of Kashmir and to the international community that due to refusal of Pakistan to honour UN resolutions the plebiscite could not be held in 1948; that elections regularly held in J&K since 1952 and occupation of parts of J&K by Pak and China have changed ground realities of 1948 making the UN resolutions redundant, and, that, the best option for separatists is either to migrate to Pakistan or to live in India with full integration.
Indian leaders should realise that demand for azadi is demand for freedom from corruption of local leaders.
 Separatists should be isolated from public by exposing falsehood of their slander against Jawaharlal Nehru.
 As far as Pakistan is concerned we must pro-actively tell them to vacate all the territories occupied by them and talks with Pakistan on J&K should focus only on working out a time table of Pakistani total withdrawal from PoK including the so called Northern areas.
 Hindu refugees from PoK and Gilgit, Baltistan etc in J&K should be given full rights of vote and employment under the State government with right to own land. Out of 24 seats kept vacant in J&K Assembly for residents of Pak occupied areas at least 12 should be immediately filled by elected representatives of Hindu and Sikh refugees who have migrated from Pak occupied Kashmir areas. There should be a separate Board for their development needs.
 Regional imbalances among Jammu, Ladakh and Kargil by Kashmir Valley must be expeditiously addressed. For example Jammu with 30 lakh population sends 37 MLAs, and, Kashmir valley with 28 lakh population sends 46 legislators to J&K Assembly. Jammu has 2 Lok Sabha seats but Kashmir valley has 3 Lok Sabha seats. Unemployment rate in Jammu is 70 per cent but in Kashmir Valley it is 30 per cent though Jammu contributes 70 per cent of the State exchequer.
Art 370 should be abolished to increase pace of flow of private Indian capital into J&K for creating new job opportunities.
 Hindus of J&K who were made to leave their homes from 1988 onwards by jihadi elements be given safe enclaves with Union Territory status in the valley and in other areas of J&K and be rehabilitated with compensation from the Government due to internally displaced persons.
 Nationalist parties of India must offer a plot of najul land in J&K and fire arms to heirs of all those members of Indian Armed forces, paramilitary forces and police and civil officials who sacrificed their lives in J&K. It will be a real tribute to their supreme sacrifices and real acknowledgement by Indian leadership that J&K is an integral part of India in theory and in practice. Such persons wanting free land in J&K should register at [email protected] and [email protected] so that a data base could be created to take it up with government.
 As the areas of J&K under illegal occupation of Pakistan and China are parts of Indian Union, residents of these areas are legally Indian citizens so the Supreme Court of India and the National Human Rights Commission should pro-actively intervene to protect their human rights. The Government of India should reserve some educational seats for residents of Pak occupied areas in Indian educational institutes.
[The writer is national working president of Bharat Raksha Manch and belongs to the Indian Foreign Service (1971) and retired after serving as Ambassador/High Commissioner to many countries. Contact: [email protected] and www.opgupta.org]?