The roots of the problem

By Hussain H Zaidi
August 12, 2019

The seeds of the Kashmir problem were contained in the Indian Independence Act 1947 – the document under which British India was granted freedom as well as partitioned into two states. The more than 500 princely states, which had been under British suzerainty, were given the choice to either accede to Pakistan or India or proclaim independence. The act, however, didn’t specify the manner in which the option was to be exercised, that is, whether the popular will or that of the prince would prevail. In case of Jammu and Kashmir (J&K), which was a strategically located, wealthy, large, and, to top it all, a predominantly Muslim state ruled by a Hindu prince, that turned out to be a dreadful omission. In the end, all Hindu majority princely states became part of India, while all Muslim majority states acceded to Pakistan. That was in kilter with the basis of Partition. However, J&K remained an exception.

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When the Maharaja of Kashmir signed the instrument of the state’s accession to India (in October 1947), the validity of the document was challenged by Pakistan on the ground that he wasn’t authorized to do so on his own and that the decision should have been left to the popular will. India, too, made the accession conditional upon subsequent confirmation by the people.

Again, it wasn’t made clear how popular will would be ascertained: directly through a popular vote or indirectly through the legislature. Hence, when in 1955, J&K’s Constituent Assembly ratified the instrument of accession, Pakistan objected that the assembly didn’t have the mandate to do so. India, however, insisted that the ratification was valid.

The UNSC in a series a resolutions held that the Kashmir’s accession to Pakistan and India would be resolved through a popular vote or plebiscite. In a word, the resolutions were a ruling that the state’s accession to India was far from being a past and closed transaction – a rebuff to New Delhi’s stance on the issue. That’s the reason that Pakistan has consistently called for implementation of the UNSC Kashmir resolutions, while India has given them a cold shoulder.

That said, a sequence of steps were supposed to be taken by both Pakistan and India as a prelude to holding a plebiscite. At the top of the envisaged actions was demilitarization of the territory, which was never done. The Indian stance was that Pakistan should withdraw first, as stipulated by the April 21, 1948 resolution. Pakistan, however, sought the guarantee that the pull-out of its troops would be followed by that of India’s. Ostensibly, Pakistan doubted that the world body would be able to secure the withdrawal of Indian forces. In hindsight, Pakistan’s doubts were well-founded. The UNSC has given short-shrift to getting its resolutions executed.

As early as the mid-1950s, India backpedalled on the plebiscite putting forward two reasons in the main: One, J&K’s Constituent Assembly had ratified the state's accession to New Delhi, which, it argued, was a manifestation of popular consent. Two, Pakistan's defence alliance with the US upset the military balance in the region making it necessary for India not to demilitarize Kashmir. In 1957, India declared Kashmir to be its constituent and irrevocable part, meaning that the issue was no longer open to multilateral discussion. Since then, the country has stuck to this stance.

The Indian constitution conceded special status of the J&K state vide Article 370 – contained in Part XXI entitled ‘Temporary, Transitional, and Special Provisions. As the title suggests, that part embodies such exceptions and modifications to the overall constitutional scheme, as the Indian president, acting on the advice of the prime minister or the council of ministers, may specify.

The 1972 Simla Agreement with Islamabad, which provides that the two countries would "settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them," apparently strengthened New Delhi’s position that the Kashmir problem ought to be settled only through bilateral means and that the UN resolutions have lost their relevance.

Pakistan has countered Indian contention by referring to Article 103 of the UN Charter, which states: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." The Simla Agreement also states that “Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.”

The genesis of Article 370 consisted in J&K’s instrument of accession and represented an attempt on the part of New Delhi to make its occupation of the state less intolerable for Kashmiris. Since Pakistan has never accepted the validity of the instrument of accession, it never accepted any provisions of the Indian constitution that were framed in pursuance of the accession. That said, for more than one reason, Islamabad can’t just wink at New Delhi’s decision to denude J&K of whatever autonomy it had been granted.

For one thing, the alteration of J&K’s constitutional status within the Indian union is a breach of the Simla Agreement, which provides that the situation in either part of Kashmir shall not be altered unilaterally. For another, Islamabad regards it as its foremost moral obligation to stand with the Kashmiris, which were already living under New Delhi’s reign of terror. Three, the bifurcation of J&K into the Valley and Jammu as one territory and Ladakh as the other is at variance with the relevant UNSC resolutions, which treat Kashmir as a disputed territory.

Kashmir has always held the key to Pak-India relations. Contrary to popular views, Pakistan has considerable trade with India, which reached $2.2 billion in 2017-18 including $420 million exports from Pakistan and $1.8 billion imports from India. Pakistan thus ran $1.4 billion trade deficit with India. Earlier in February this year, India revoked Pakistan’s MFN status hot on the heels of the Pulwama incident. Politics thus is an independent, and trade a dependent, variable in our part of the world.

Thomas Hobbes once remarked that covenants without the power to enforce them were but words. Facts more than principles, and power more than law, bear upon settling inter-state disputes. Puffed up with India’s hard and soft power, intoxicated by a heavy mandate and riding the wave of Hindutva, the Modi government is convinced it will get away with its Kashmir clampdown regardless of its illegality and impropriety.

The writer is an Islamabad-based columnist

Email: hussainhzaidigmail.com

Twitter: hussainhzaidi

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