Kashmir, India and Pakistan

I Shall endeavor to recapitulate briefly the genesis of the dispute over the State of Jammu and Kashmir and to indicate what solutions have been considered in the past, apart from the main solution of an over-all plebiscite, that might well furnish a ground for future action in determining its disposition.

When Britain decided to quit the subcontinent of India, the British Parliament enacted the Indian Independence Act of 1947, whereby the two new Dominions of India and Pakistan were carved out and the princely Indian States, numbering 562, were freed from the suzerainty of the British Crown. The result of this was that on the lapse of paramountcy, suzerainty reverted to the princely states, for the British Parliament declined to transfer it to either of the two successor governments. Thus the princely states became completely independent. However, they were advised by the representative of the British Crown, the Viceroy of India, to affiliate with either of the two new Dominions, keeping in view geographical and other relevant considerations, for the very limited purpose of securing their defense, foreign relations and a few other specified matters. By an appointed date almost all the Indian states-the chief exceptions being the State of Jammu and Kashmir and the State of Hyderabad-fell in line with this policy.

The State of Jammu and Kashmir (hereafter referred to as Kashmir) had its peculiar problems. For one thing, its ruler was a Hindu but its population was preponderantly Muslim. Its other problems have been set forth briefly by Mr. N. C. Chatterjee, Member of the Indian Parliament and a member of the Hindu Mahasabha, in a recent article as follows:

The geographical situation of the State was such that it would be bounded on all sides by the new Dominion of Pakistan. Its only access to the outside world by road lay through the Jhelum Valley road which ran through Pakistan, via Rawalpindi. The only rail line connecting the State with the outside world lay through Sialkot in Pakistan. Its postal and telegraphic services operated through areas that were certain to belong to the Dominion of Pakistan.

The State was dependent for all its imported supplies like salt, sugar, petrol and other necessities of life on their safe and continued transit through areas that would form part of Pakistan.

The tourist transit traffic which was a major source of income and revenue could only come via Rawalpindi. The only route available for the export of its valuable fruit was the Jhelum Valley route. Its timber could mainly be drifted down only in the Jhelum river which ran into Pakistan.

The same authority credits the Maharaja, in view of the difficulties, with a desire to have an independent status for Kashmir, its independence being guaranteed by the two new Dominions. Pending the determination of this question by the Maharaja, he offered to make standstill agreements with both the Dominions providing for the maintenance of the status quo in respect of many essential services necessary to the life of the people of the State; and one such agreement was in fact concluded with Pakistan, as a result of which that country continued to operate its postal and telegraphic services in Kashmir. India, however, did not conclude any such standstill agreement.

In the meantime, the tribesmen of Poonch, which was a part of the State, pressed their demand for its accession to Pakistan, and the Maharaja adopted various stringent measures to quell the resulting disturbance. When there followed soon after an armed incursion of the tribesmen, the Maharaja's resistance collapsed. Finding that he could no longer defend Kashmir with his own resources, he asked India for armed assistance to deal with this situation, though without offering to accede to India. The Government of India, however, took the view that it would be the height of folly to send troops into a neutral state and that the accession of Kashmir to India was a prerequisite; but this accession would be conditional on the will of the people, as ascertained through a referendum as soon as law and order were restored. The Maharaja fled the capital of Srinagar and at Jammu renewed his request to India for armed assistance in the following words:

. . . Geographically my State is contiguous to both the Dominions. It has vital economical and cultural links with both of them. Besides, my State has a common boundary with the Soviet Republic and China. In their external relations the Dominions of India and Pakistan cannot ignore this fact.

I wanted to take time to decide to which Dominion I should accede, or whether it is not in the best interests of both the Dominions and my State to stand independent, of course with friendly and cordial relations with both.

. . . With the conditions obtaining at present in my State and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally they cannot 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.

On behalf of the Government of India, Lord Mountbatten, then Governor General, accepted this accession in the following terms:

. . . In the special circumstances mentioned by your Highness my Government have decided to accept the accession of Kashmir State to the Dominion of India. In consistence with their policy that in the case of any State where the issue of accession has been the subject of dispute the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government's wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invader the question of the 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 honor of your people.

II

The resulting accession was to be purely provisional and temporary until the will of the people could be ascertained through a referendum. The Government of India consistently upheld the temporary nature of this accession and its commitment to refer the issue to the people of Kashmir. In their White Paper of 1948, the Government of India stated that "we regard this accession temporary and provisional till such time as the will of the people can be ascertained." That White Paper also contains a report of a broadcast by Prime Minister Nehru in which he said:

. . . We decided to accept this accession and to send troops by air, but we made a condition that the accession would have to be considered by the people of Kashmir later when peace and order were established. . . .

And here let me make clear that it has been our policy all along that where there is a dispute about the accession of a State to either Dominion, the decision must be made by the people of that State. It was in accordance with this policy that we added a proviso to the Instrument of Accession of Kashmir.

. . . We have declared that the fate of Kashmir is ultimately to be decided by the people. That pledge we have given, and the Maharaja has supported it, not only to the people of Kashmir but to the world. We will not, and cannot, back out of it. We are prepared when peace and law and order have been established to have a referendum held under international auspices like the United Nations. We want it to be a fair and just reference to the people, and we shall accept their verdict. I can imagine no fairer and juster offer. . . .

In their reference to the United Nations made December 31, 1947, the Government of India stated:

In order to avoid any possible suggestion that India had taken advantage of the State's immediate peril for her own political advantage, the Dominion Government made it clear that once the soil of the State had been cleared of the invader and normal conditions were restored, the people would be free to decide their future by the recognized democratic method of plebiscite or referendum, which, in order to ensure complete impartiality, may be held under international auspices.

This was also in accordance with Mahatma Gandhi's view, since he had stated that "the Indian Government sent troops by air to Kashmir telling the Maharaja that the accession was provisional upon an impartial plebiscite being taken of Kashmiris irrespective of religion."

Sir Gopalaswami Ayyangar, as leader of the Indian Delegation to the Security Council, stated on behalf of India on January 15, 1948:

In accepting the accession they refused to take advantage of the immediate peril in which the State found itself and informed the Ruler that the accession should be finally settled by plebiscite as soon as peace has been restored. . . .

The question of the future status of Kashmir vis-à-vis her neighbors and the world at large, and a further question, namely, whether she should withdraw from her accession to India and either accede to Pakistan or remain independent, with a right to claim admission as a member of the United Nations-all this we have recognized to be a matter for unfettered decision by the people of Kashmir after normal life is restored to them.

This same commitment made by India was embodied in the two resolutions adopted by the United Nations Commission for India and Pakistan, dated August 13, 1948, and January 5, 1949. Having arranged a cease-fire between India and Pakistan, the United Nations Commission addressed itself to the task of securing a truce agreement; but differences over it developed between the two countries.

When the four members from Jammu and Kashmir were admitted to the Constituent Assembly of India, Pakistan protested to the Security Council. India replied that: Such participation was not intended to, and does not, in fact, alter the Government of India's determination to abide, in matter of accession, by the freely declared will of the people of Jammu and Kashmir. Should that will be against the State continuing to be part of India, if and when it comes to be expressed in a constitutional way under conditions of peace and impartiality, the representation of the State in the Indian Parliament would automatically cease and the provisions of the Constitution of India that govern the relations of the State of Jammu and Kashmir with the Union of India will also cease to operate.

When Article 370, dealing with Kashmir's relationship with the Union of India, came up for enactment in the Indian Constitution, it was again made clear in the Indian Constituent Assembly by Sir Gopalaswami Ayyangar that:

. . . the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining the will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed.

Therefore, they were only establishing an "interim system."

The matter thereafter came up again before the United Nations, which made efforts through its emissaries to secure an agreement between the parties, but no progress could be made with regard to the demilitarization of Kashmir. In the meanwhile, a Constituent Assembly was convened in Kashmir, but the Security Council, in a resolution passed March 30, 1961, affirmed that the convening of this Assembly and any action that the Assembly might take to determine the future shape and affiliation of the entire State or any part thereof would not be in accordance with principles already agreed upon-namely, that the will of the people was to be expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.

Sir B. N. Rau, as leader of the Indian delegation to the Security Council, stated in this connection:

Provision was made in the Indian Constitution for a Constituent Assembly for settling the details of Kashmir's Constitution. Will that Assembly decide the question of accession? My Government's view is that, while the Constituent Assembly may, if it so desires, express an opinion on this question, it can take no decision on it. . . . But this opinion will not bind my Government or prejudice the position of this Council.

On May 29, 1951, Mr. Rajeshwar Dayal gave an assurance to the Security Council on behalf of India in these terms:

I reaffirm that so far as the Government of India is concerned the Constituent Assembly for Kashmir is not intended to prejudice the issue before the Security Council or come in its way.

All the mediatory efforts of the Security Council through its representative Dr. Frank Graham (who is still in that capacity) also proved abortive.

In August 1953, a joint communiqué was issued by the Prime Ministers of India and Pakistan stating inter alia:

It was their firm opinion that this [question of Kashmir] should be settled in accordance with the wishes of the people of that State with a view to promoting their well-being and causing the least disturbance to the life of the people of the State. The most feasible method of ascertaining the wishes of the people was by fair and impartial plebiscite.

It was further decided that a Plebiscite Administrator should be appointed by the end of April 1954.

III

In November 1953 came news about Pakistan's negotiations for a military pact with the United States. In his letter of March 5, 1954, Mr. Nehru wrote:

The decision to give this aid has changed the whole context of the Kashmir issue, and the long talks we have had about this matter have little relation to the new facts which flow from this aid.

Later, in reply to a Pakistani charge of bad faith, Mr. Nehru declared in a public meeting on January 31, 1957, that if he was convinced that he had not honored any international commitment about Kashmir, "I shall honor it or resign from office. I do not want any final decision which is against the interest of the Kashmir people. I do not want to ask for a decision on the legal issue."

Again the matter went to the United Nations, which in a resolution of January 24, 1957, reiterated "that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations."

Addressing a meeting at Allahabad in February 1957, Mr. Nehru denied that India had attempted to back out of any commitments. He said: "Kashmir is not ours but it is of the Kashmiris. We cannot stay in Kashmir for a moment without the consent of the Kashmiris. It is not our property."

In a report submitted to the Security Council on April 29, 1957, Mr. Jarring recalled that both India and Pakistan had accepted the United Nations Commission's resolutions of August 13, 1948, and January 5, 1949, "to which they admitted themselves bound very recently in the Security Council debate." He suggested arbitration on the question whether Part I of the resolution of August 13, 1948, dealing with the cease-fire, had been implemented or not-a resolution which was accepted in principle by Pakistan but rejected by India. That year, the Security Council passed the last of its resolutions dealing with Kashmir (December 2, 1957).

The matter has since then remained deadlocked and no real progress towards its solution has been made, though the leaders of the two countries have met several times to consider the matter. Although Mr. Nehru had previously accepted mediation under the United Nations auspices as the only way out, he later abandoned this stand and expressed the opinion that Kashmir was a domestic matter in which mediation was not acceptable. Pandit Nehru and President Ayub had talks on the Kashmir question during Mr. Nehru's tour of Pakistan in 1960, but no real progress was made.

President Kennedy revealed at a press conference on January 24, 1962, that he had asked Mr. Eugene Black, President of the World Bank, "to see if a solution was possible in this most difficult and delicate problem [of Kashmir]. It creates international tensions, of course. We are assisting both the countries. We would like our assistance to be used in a way which is most effective to the people." Mr. Black agreed to undertake this assignment, but it was not accepted by India, as Mr. Nehru stated that India was opposed to mediation on any issue involving any country's sovereignty.

When I was released from jail on April 8, 1964, following the withdrawal of the conspiracy case instituted against me and my associates, I accepted the invitation of Prime Minister Nehru and President Ayub Khan to visit India and Pakistan. In my meetings with them I was struck by the intense desire of them both to settle the much vexed question of Kashmir by mutual discussion and negotiation. I got the impression from these talks that they had realized at long last that it was harmful to the interests of their two countries to keep this issue hanging between them, since it did no good to them or to their friends but provided a situation over which their enemies could gloat. At my instance Pandit Nehru and President Ayub Khan agreed to meet together to settle this long outstanding matter. But these talks could never be held because of Mr. Nehru's sudden death. I renewed my contacts thereafter with Indian government leaders and had hoped that as soon as they and the Pakistani government leaders were freed from some of their internal problems they would be able to meet and come to a settlement about Kashmir. I am still sanguine that such a meeting may materialize, though I must confess that I have been somewhat dismayed by certain recent developments.

IV

The foregoing résumé makes dismal reading indeed. The commitments made by both countries aside, the vital interests of the people of Jammu and Kashmir do not seem to have been heeded sufficiently. Indeed, over these long years they have suffered incalculable harm and pain. The uncertainty to which they have been subjected has eaten into their very vitals, and until it is removed no progress in any sphere-administrative, political or otherwise-can be achieved. When I held the stewardship of the State, my colleagues in the Government and in the National Conference Working Committee were in entire agreement on this point.

As far back as May 1953, the Working Committee appointed a committee consisting of the following to go into this matter: Sheikh Mohammad Abdullah, Maulana Masoodi, Mirza M. A. Beg, Bakhshi Ghulam Mohammad, G. M. Sadiq, Sardar Budh Singh, Girdharilal Dogra and Shamlal Saraf. Here is an extract from the minutes of the Committee's final session, held June 9, 1953:

As a result of the discussions held in the course of various meetings, the following proposals only emerge as possible alternatives for an honorable and peaceful solution of the Kashmir dispute between India and Pakistan:

a) Over-all plebiscite with conditions as detailed in the minutes of the meeting dated 4th June, 1963 [this apparently was a reference to Maulana Masoodi's suggestion that the choice of independence be offered in the plebiscite].

b) Independence of the whole State.

c) Independence of the whole State with joint control of foreign affairs.

d) Dixon plan with independence for the plebiscite area.[i]

Mr. G. M. Sadiq, the present Prime Minister of Jammu and Kashmir, was of the following opinion:

If an agency consisting of India, Pakistan, Afghanistan, Soviet Russia and China could be created to supervise and conduct the plebiscite, I would suggest that we should immediately ask for an over-all plebiscite. Failing this, we may ask for a supervision Commission representing all the Members of the Security Council for ensuring free and fair plebiscite in the State.

Some distinguished leaders of Indian public opinion such as Mr. Rajagopalachari, Mr. Jayaprakash Narayan and Mr. Shiva Rao have been counselling that the dispute be resolved through a negotiated settlement. This might take the shape of independence for Kashmir, with its defense guaranteed by the United Nations; or of its being made a trusteeship of the United Nations for a period of ten years, at the end of which the question of its accession to India or Pakistan or its remaining independent could be decided by a plebiscite held under United Nations auspices; or of a confederation of India and Pakistan with Kashmir one of its constituent units. In each case they have emphasized the human aspects of the problem affecting the well-being of the 5,000,000 people involved, and have rightly called attention to the problems posed by the enforced division of Kashmir.

Some of these suggestions could still be considered in the present context. The important thing, however, is to get the parties concerned-i.e. India, Pakistan, and Jammu and Kashmir-together around a table, preferably with the help of a mediator, and to approach the problem with an open mind, consider all these alternatives and by a process of elimination accept a solution which would by and large meet the just and legitimate aspirations of the people of the State, conceding to them the substance of their demand for self-determination, but with honor and fairness to both Pakistan and India. Unfortunately the attempts to bring them together on these lines have not so far succeeded, and the situation has been worsened by some of the utterances of Indian government leaders and by recent moves to extend to Kashmir some constitutional provisions aimed at the eventual erosion of Article 370 of the Indian Constitution.

Whether they succeed in this or not, there has as a result been a demonstrable diminution of the faith which the people of Kashmir had pinned on India. I wish with all my heart that this process of disillusionment and bewilderment may be arrested and steps taken in the direction I have indicated above.

In this connection it is pertinent to recall what Mr. Nehru himself stated as far back as June 26, 1952, with regard to such constitutional expedients:

We have not got a clean slate to write upon; we are limited, inhibited by our commitments to the United Nations, by this, by that. But, nevertheless, the basic fact remains that we have declared-and even if we had not declared the fact would remain-that it is the people of Kashmir who must decide. And I say with all respect to our Constitution that it just does not matter what your Constitution says, if the people of Kashmir do not want it, it will not go there. . . . Let us suppose there was a proper plebiscite there-and the people of Kashmir said, "We do not want to be with India." Well, we are committeed to it, we would accept it. It might pain us but we would not send an army against them; we might accept it, however much hurt we might feel about it, and we should change our Constitution about it.

In another speech in the same vein on August 7, 1952, Mr. Nehru said:

It is an international problem. It would be an international problem anyhow if it concerned any other nation besides India, and it does. It became further an international problem because a large number of other countries also took an interest and gave advice. . . . So while the accession was complete in law and in fact, the other fact which has nothing to do with the law also remains, namely, our pledge to the people of Kashmir-if you like, to the people of the world-that this matter can be reaffirmed or cancelled or cut out by the people of Kashmir if they so wish. We do not want to win people against their will and with the help of armed force, and if the people of Jammu and Kashmir State so wish it, to part company from us, they can go their way and we shall go our way. We want no forced marriages, no forced unions like this. . . .

So, we accept this basic proposition that this question is going to be decided finally by the good will and pleasure of the people of Kashmir, not, I say, by the good will and pleasure of even this Parliament if it so chooses, not because this Parliament may not have the strength to decide it- I do not deny that-but because this Parliament has not only laid down in this particular matter that a certain policy will be pursued in regard to Jammu and Kashmir State but it has been our policy. . . .

But whether it is a pain and a torment, if the people of Kashmir want to go out, let them go because we will not keep them against their will however painful it may be to us. That is the policy that India will pursue and because India will pursue that policy people will not leave her, people will cleave to her and come to her. Because the strongest bonds that bind will not be the bonds of your armies or even of your Constitution to which so much reference has been made, but bonds which are stronger than the Constitution and laws and armies-bonds that bind through love and affection and understanding of various people. . . .

These words of the great departed leader inspire and fortify me, and I do indeed hope that his successors will rise to the occasion and by a great act of faith seek to resolve this question which has bedeviled the relations between India and Pakistan. The result has been the confrontation of their two armies on the borders of Kashmir, the dissipation of their vast resources which would normally have been available for the amelioration of the condition of their peoples. It has presented the threat of an eventual wider conflagration between them, imperiling the safety and happiness of teeming millions in both the countries, including their minorities. It has also brought great sorrow and distress to their friends, who, it must be said, have not been found wanting in assisting them with material resources in the hope that this would add to their combined strength and would not be wasted on this confrontation between them. But more than they, I repeat, it is the people of Jammu and Kashmir who have suffered in the process. Their anguish knows no bounds. We must hope and pray that wiser counsels will prevail and that the two countries will speedily seek a way out of this impasse.

[i] EDITOR'S NOTE: Sir Owen Dixon, Australian jurist, reported to the U.N. in 1950 that he could suggest no way of organizing an over-all plebiscite acceptable to both sides. He advocated partition, with Hindu areas going to India, Moslem areas to Pakistan, and the future of the Vale of Kashmir to be settled by some means, perhaps a local plebiscite.