Recent Developments in Kashmir

The spate of criticism faced by India in the international community following its constitutional amendment of Article 370, the restructuring of the state of Jammu and Kashmir, and the pre emptive steps taken by it to preserve peace and tranquillity in the state is totally unwarranted. Such criticism is at best ill informed - as exemplified by the ridiculous assertion of the Malaysian Prime Minister that India invaded Kashmir - and at worst smacks of outright bias. This bias is reflected in the lack of even a mention of Pakistan's illegal occupation of a part of Kashmir through use of arms in 1947, of the horrendous human rights violations committed by it there, and of its involvement in terrorist activities against India in Kashmir which led the latter to take some pre emptive steps to preserve peace and prevent unnecessary loss of life.

An objective understanding of the rationale of the moves recently made by India in Kashmir demand an appreciation of the basics pertaining to it which may briefly be listed as follows:-

1. India's control over the state of Jammu and Kashmir extends to only about 45 percent of its total area of 222186 sq km. Out of the balance, Pakistan controls about 35 percent and China about 20 percent. Regrettably, international focus has only been on the areas of Kashmir under Indian control whereas the happenings in the other parts of the state have received only superficial attention. A part of the reason for this imbalance arises from the fact that while the Indian system of governance is open and democratic, the Pakistani and Chinese systems are closed and repressive and much that happens in places under their control tends to elude scrutiny. Moreover, Pakistan has made it a vocation since its very inception to indulge in much false propaganda about the happenings in the Indian state of Jammu and Kashmir with a view to securing third party intervention.
2. Jammu and Kashmir was merely one of the over 560 princely states of pre independent India. As per the dispensation laid down by the British the ruler of each of these states was required to accede to either India or Pakistan. After much prevarication, and following the invasion of Jammu and Kashmir on 22 October 1947 by Pakistani tribals fully inspired and supported by Pakistan including with munitions, logistics and military advice, the ruler of the state signed an instrument of accession in favour of India on 26th October 1947. Thus the legality of the accession of the entire state of Jammu and Kashmir to India is beyond dispute and it is an integral part of India like the hundreds of other princely states which executed letters of accession in favour of India.
3. It is notable that the aforesaid invasion of Jammu and Kashmir was preceded by Pakistan's effort to starve it into submission through an economic blockade whereby it was denied the essentials of daily use like food, salt, cloth, fuel, etc. Pakistan was well equipped to do so as it controlled the main routes of communication to Jammu and Kashmir. The economic blockade followed by the invasion of Kashmir fully expose Pakistan's perfidy as it was party to a standstill agreement with the former as of 12 August 1947 committing it to preserve the status quo by allowing Kashmir to continue as an independent state till such time as the ruler took a final view on the issue of accession.
4. Immediately after the accession of Jammu and Kashmir to India the latter inducted its forces into the state in order to repel Pakistani forces which were on the verge of entering the state capital. Fierce fighting ensued and on 1st January 1948 India took the issue of Pakistani aggression to the United Nations as a situation likely to endanger international peace and security. After intensive negotiations, the United Commission on India and Pakistan (UNCIP) called for a ceasefire, a withdrawal of all Pakistani forces and nationals from the state, and thereafter a plebiscite conducted by India to ascertain the wishes of the people of the state on the issue of accession to India or Pakistan. It is noteworthy that the UNCIP resolution of 5th January 1949 was categorical that a plebiscite would be contingent on conclusion of a ceasefire and a withdrawal of all Pakistani forces and nationals from Kashmir. In the event it became impossible to hold the proposed plebiscite because not only did Pakistan fail to withdraw all its nationals and troops from Kashmir but it went on to augment its military presence there. It is unfortunate that the prevailing politicised situation in the UN resulted in its failing to chastise Pakistan for its blatant aggression and compelling it to withdraw from Kashmir. Accordingly, Pakistan continues to enjoy to date the fruits of its aggression and to illegally retain a considerable part of the state. This is all the more regrettable as successive Pakistani governments placed the areas of Kashmir seized by it behind an iron curtain depriving the locals of even a modicum of democratic rights and ruling the region with a iron fist from Rawalpindi. Apart from orchestrating demographic change in the region by bringing in Punjabis and Pashtuns, it has denied the locals basic constitutional, political, civil and economic rights, pursued discriminatory policies that have caused extreme poverty, underdevelopment and forcible deprivation of land, and silenced all independent voices.
5. It may be underlined that the accession of Jammu and Kashmir to India is not merely legally indisputable but has also been backed by popular will as demonstrated by the innumerable elections that have taken place in the state since its accession within the ambit of a vibrant democratic framework created there. This includes as many as 11 elections to the state legislative assembly and 13 to the Lok Sabha. It also needs to be noted that it was on the insistence of the India that it was agreed that a final decision on the state's accession would be taken by its democratically elected constituent assembly created inter alia for this purpose. The constituent assembly duly ratified the state's accession to India in 1954 and the state's constitution proudly asserts that the "State of Jammu and Kashmir is and shall be an integral part of the Union of India."
6. Not content with seizing a sizeable chunk of Kashmir through use of arms in 1947, Pakistan has indefatigably sought to the wrest the remainder from India both through military means as in 1965 and 1999 as well as through the use of terrorist outfits armed and trained by it. These endeavours have been accompanied by attempts to cause disaffection in the area by inter alia playing upon the communal card. The extent and scale of Pakistan's efforts in this direction may be gauged from the fact that since 2004 as many as 1900 terrorists of Pakistani origin have been eliminated by Indian forces and since 1989 nearly 42000 Kashmiri civilians have lost their lives in Pakistani inspired terrorist actions.
7. Pakistan's criticism of the amendment of Article 370 by India is unjustified and hypocritical. Unjustified, because Jammu and Kashmir is an integral part of India and it is well within its rights to deal with the state in accordance with its own constitutional processes. Hypocritical, because Pakistan has systematically been changing the status quo in the part of Kashmir occupied by it. As early as in 1949 itself it bifurcated the part of Kashmir illegally seized by it into two, notably, the so called Azad Kashmir with an area of about 11639 sq km and the Northern Areas comprising Gilgit and Baltistan with an area of about 72495 sq km. Both to date are directly controlled by Islamabad with the latter having a few trappings of democratic institutions. The framework of administrative arrangements for these two areas have been modified repeatedly over the years. Additionally, change in the population mix in the region by settlement of Punjabis and Pathans therein, the ceding of 5,180 sq km from this area to China under the 1963 Sino-Pakistan Boundary Agreement, and the construction of the China Pakistan Economic Corridor through the area which belongs to India constitutes a material alteration of the status quo which is not within Pakistan's competence.
8. China, on its part, while professing friendship with India surreptitiously took control of about 37000 sq km of the state in the sparsely populated Ladakh region in the mid and late 1950's. In addition, it was the recipient of 5180 sq km of territory from Pakistan in 1963 as indicated above from the area illegally occupied by it in Kashmir, which gives the lie to the latter's professions of love and commitment to the state and its people.
9. Article 370 was nothing more than a temporary provision to cater to the situation prevailing from the execution of the Instrument of Accession in 1947 to the ratification of the state's accession to India by its constituent assembly in 1954. As per this Article, the Indian Parliament could on its own legislate only on Defence, Foreign Affairs, and Communications, and in respect of other subjects included in the Union and Concurrent Lists it could only do so with the concurrence of the state government. This imparted a special status to Jammu and Kashmir as in respect of other states the Indian Parliament enjoyed unfettered powers of legislation on all items included in the Union and Concurrent lists. With the constituent assembly having ratified the state's accession to India the continuance of Article 370 in its original form according a special status to it defies logic.

The rationale for the amendment of Article 370 derives not just from the fact that it was a temporary provision whose shelf live had long expired. More importantly, its amendment was a crying necessity as it bred separatism, kept alive the unwholesome legacy of the two nation theory, was an instrument of exploitation of the common man in the hands of the ruling elite, and deprived the state as well as the common Kashmiri of the benefits of the spate of progressive legislation in diverse spheres which has been transforming the lives of millions of compatriots elsewhere in India.

Article 370 has been amended to simply provide that all provisions of the Indian Constitution as amended from time to time would henceforth apply to Jammu and Kashmir thereby effectively mainstreaming the state into Indian polity from which it had hitherto been kept at arm’s length. It is important to note that this was done by due constitutional process through a Presidential notification issued on the basis of a resolution passed by a two third majority of both houses of Parliament in which the state of Jammu and Kashmir is represented. In one stroke this amendment not only made all Indian laws applicable in Jammu and Kashmir but also did away with pernicious legislation like Article 35 A. The latter permitted the state legislature to define as to who could be a permanent resident of the state and the special rights and privileges available to him which would not be available to others in regard to employment, acquisition of immovable property, and settlement in the state as well as the right to scholarships and such other forms of aid as the state may provide. It goes without saying that the existence of such legislation not only created a psychological barrier between Kashmir and the rest of India but also stood in the way of the former's economic growth and development.

Accompanying the amendment of Article 370 Parliament also passed the Jammu and Kashmir Reorganisation Act by a huge majority bifurcating the state it into two union territories, notably, Jammu and Kashmir with a legislative assembly and Ladakh without one. This bifurcation was necessitated as the latter had been neglected and its development needs had been grossly overlooked by successive governments in Kashmir. Indeed, Ladakh had for many years been demanding separation from Kashmir. The transformation of these two new entities into union territories has no doubt also been largely dictated by the prevailing fragile security situation arising from Pakistan's machinations and export of terrorism. As union territories the entire region will have much needed direct central oversight which will redound to its benefit both in security and developmental terms.

The amendment of Article 370 and the reorganisation of Jammu and Kashmir have been welcomed throughout India including in much of Jammu and Kashmir. There have no doubt been some reservations about this move in urban Kashmir but these are likely to be dissipated as its benefits become apparent.

Much has been made of some of the temporary restrictions imposed by India in the immediate aftermath of the amendment of Article 370 in Jammu and Kashmir on August 5 on movement, communications, travel, etc. as well as imprisonment of some political leaders. It needs to be recalled that similar measures have often been resorted to in the past either in preventive or remedial mode. Sheikh Abdullah's incarceration for years-on-end is case in point. The restrictions which are presently in place are in preventive mode and certainly not draconian in nature. They have been taken in the interests of maintaining peace and preventing loss of live. As a result of these measures there have been only a handful of violent incidents in the last three months mainly in the nature of Pakistan inspired terrorist attacks. Normalcy has returned more or less completely to Jammu and Ladakh and is limping back in the Valley. This is reflected in the fact that attendance of government employees in offices is around 95 percent, Block Development Council (BDC) elections had a 98 percent turnout, hospitals are fully functional with a daily attendance of 70000 patients in the out-patient departments, essential supplies are easily available, landline and post paid mobiles are operational throughout the state, there are no media restrictions and 99 dailies are being published in the state, schools are fully functional with 65000 students having participated in the 10th board examinations, and recruitment drives by the police and the army are very well attended.

With the normalcy inching back to Jammu and Kashmir it is only appropriate that the government allowed a group of European Union parliamentarians to visit the area to see the situation for themselves and come to their own conclusions. Indeed, it is to be hoped that in time visits of other foreign groups will be encouraged. Government need not be coy in this matter and should not hesitate in organising them directly. This is exactly what was done with good effect in 1994 when India was under attack at international fora on the human rights situation in Kashmir. Such visits are useful in setting at rest uncalled for apprehensions and fears about the prevailing situation aroused by exaggerated media reports and malicious propaganda mounted by interested parties.

The argument that such visits constitute an internationalisation of the Kashmir issue lacks substance as India is not using them to seek third party intervention or mediation. Indeed, the original sin which internationalised Kashmir was in India's having taken the issue to the UN Security Council in 1948. Since then Kashmir has over the decades been the focus of international attention in greater or lesser measure. Indeed, its internationalisation is akin to a constantly recurring eczema with Pakistan's incessant machinations aimed at somehow securing third party intervention. Visits of foreigners to Kashmir will help dampen Pakistan's efforts at raising false alarms about the prevailing situation there and thus help curb the any interest in third party intervention. Above all, invitations for such visits are an outcome of India's traditional transparency and a demonstration of the confidence it reposes in its case on Kashmir and the policies pursued by it which are in conformity with best practises and in the interests of the people of Jammu and Kashmir.

In conclusion, as someone who was deeply involved in India's successful campaign against Pakistan's efforts to pass a resolution against it in the UN Human Rights Commission in 1994, it is painful to note the stark contrast of the role of the Indian opposition then and that of it today. In 1994 there was no daylight between the government and the opposition on this issue. Indeed, the then leader of the opposition, Mr Vajpayee, successfully led our delegation in Geneva in our efforts to thwart Pakistan. Today, sadly our opposition, far from being a source of strength for the government, appears to be bent on undermining its policies on even critical Kashmir related issues. One hopes that in the days to come wiser counsels will prevail and the opposition will see fit to look at things more dispassionately and be supportive of the government in the broader national interest on at least critical foreign policy related issues.

(The Author is a former deputy National Security Advisor)

(The paper is the author’s individual scholastic articulation. The author certifies that the article/paper is original in content, unpublished and it has not been submitted for publication/web upload elsewhere, and that the facts and figures quoted are duly referenced, as needed, and are believed to be correct). (The paper does not necessarily represent the organisational stance... More >>