By Prof. G. M. Athar
Following the World War I the people’s right of self-determination was recognised as the prime criterion of the new European political order at the Peace Conference in Versailles in 1919. After the establishment of United Nations in 1945 the Peoples right of self-determination became part of the UN Charter and all the countries who are the members of the United Nations are the signatories to it. India, China and Pakistan who occupy the territory of former princely state of Jammu and Kashmir are also the signatories to UN Charter, so it is a moral and legal obligation on them to honour the sanctity of the document. Since the territory under the control of China is uninhabited so granting the people of Jammu and Kashmir their right of self-determination is the moral and legal duty of the Government of India and the Government of Pakistan. .
THE GENESIS OF KASHMIR DISPUTE:-
The Dogra princely state of Jammu and Kashmir was militarily carved out from 1820 to 1846 at a period of time when the authority of the monarch as the source of sovereignty was rejected in the West and it became the well accepted political principle that instead of monarch sovereignty lay with the people.The opening sequence of the American Constitution of 1787 beginning with: *We the people…” Unfortunately the British not only undermined the principle of people’s sovereignty in the territory of Jammu and Kashmir acquired by them through the Treaty of Lahre on 9th March 1846 but also handed over the hilly state to another autocratic ruler namely Maharaja Gulab Singh through the Treaty of Amritsar on 16th March 1846 after he paid the East India Company an amount of 75 lakh rupees.The people of Jammu and Kashmir State had to live under the subjugation of autocratic rule for one century till the British paramountcy lapsed in the Indian subcontinent on 15th August 1947. On the one hand the last Dogra ruler of princely state of Jammu and Kashmir was reluctant to pass on the sovereignty of the state to its people and on the other hand both India and Pakistan were trying to secure the accession of Jammu and Kashmir State to their respective dominions. Maharaja Hari Singh offered Standstill Agreement to both India and Pakistan through an identical telegram on 12th August 1947. The Government of Pakistan accepted the Standstill Agreement in principle, pending details on 16th August 1947 whereas the Government of India suggested Maharaja Hari Singh to send some of his cabinet minister to New Delhi to discuss the details of the Standstill Agreement. In order to prevent the Hindu ruler to sign the accession of Jammu and Kashmir State with Indian Union, Pakistan sent its tribal raiders to invade Kashmir on 22nd October 1947. On 24th October 1947 Maharaja Hari Singh sent Mehrchand Mahajan, Prime Minister of Jammu and Kashmir to request military assistance from India.The Government of India demanded the accession of Jammu and Kashmir State with Indian Union prior to any military assistance, with the result the ruler of the state was obliged to submit the Instrument of Accession of Jammu and Kashmir State with Indian Union with respect to defence, foreign affairs and communication on 26th October1947. Maharaja Hari Singh in his covering letter to the Instrument of Accession made it abundantly clear that the future Constitution of India will not be a binding on his state except for the three subjects specified in the legal document. Early in the morning on 27th October 1947 the Indian troops landed at Srinagar Airport to drag out the Pakistani tribal raiders. Lord Mountbatten Governor General of India in his letter to Maharaja Hari Singh on 27th October 1947 wrote that once the law and order situation in Jammu and Kashmir State is restored the wishes of the people on the subject of accession will be ascertained. Pandit Jawaharlal Nehru Prime Minister of India in his address on All India Radio on 2nd November1947 stated that once the soil of Jammu and Kashmir State is cleared off the Pakistani agressord we will withdraw the troops and the wishes of people of the state will be ascertained on the subject of accession of Jammu and Kashmir State with India.
KASHHMIRI QUESTION IN THE UNITED NATIONS:-
As the fighting between the Indian troops and Pakistani tribal raiders started Pakistan also deployed its troops on the military front.The army on both sides was led by the British military officers who were reluctant to fight a full fledged war between themselves. So Lord Mountbatten suggested both Pandit Jawaharlal Nehru and Mohammad Ali Jinnah to refer the Kashhmir Question to the United Nations to resolve it peacefully. On 31st December 1947, the Kashhmir Question was referred to the United Nations under Chapter VI of the UN Charter. India in its application to the United Nations on 5th January 1948 sought right of self-determination for the people of princely state of Jammu and Kashmir to allow them to decide whether they want to stay with India, join Pakistan or remain independent from both the dominions.The United Nations Security Council advised both the countries to restraint from fighting and appointed the United Nations Commission for India and Pakistan (UNCIP) to immediately visit the ground zero to monitor the situation. On 21st April 1948 the United Nations Security Council passed the Resolution on Jammu and Kashmir State recommending that Pakistan must demilitarize the territory of Jammu and Kashmir State to be followed by India to reduce the number of its troops reasonably necessary for maintaining the law and order in the state to have the plebiscite to determine whether the majority of the people wants to stay with India or join Pakistan. On 13th August 1948 the United Nations Security Council passed another resolution on Jammu and Kashmir recommending the right of self-determination for the people of the state. When Pakistan sought the clarification from the UN whether right of self-determination included also the option of an independent country it got an affirmative reply upon which Sir Zafarullah Khan Foreign Minister of Pakistan moved an application to the Umied Nations Security Council to delete the option of an independent country for the people of Jammu and Kashmir. India did not raise any objection on Pakistan’s application to the United Nations Security Council because following the 13th August 1948 Resolution on Jammu and Kashmir State India and Pakistan had reached an understanding to divide the territory of Jammu and Kashmir between themselves along the Ceasefire Line implemented on 1st January 1949. Consequent upon the application by Pakistan and no objection by India, a fresh resolution on Jammu and Kashmir State was passed by the United Nations Security Council on 5th January 1949 recommending the two-option plebiscite to determine whether the people of the state want to stay with India or join Pakistan. On 28th April 1948 both India and Pakistan in presence of the representatives of the United Nations Security Council signed the Karachi Agreement to accept the Ceasefire Line as the working boundary between India and Pakistan in Jammu and Kashmir. The United Nations Military Observer Group (UNMOGIP) stationed at Rawalpindi and Srinagar was assigned the duty to monitor the the border between India and Pakistan in Jammu and Kashmir State. Since signing of the Karachi Agreement in April 1949 the United Nations has continued to stress upon both the countries to resolve the Kashhmir issue to the satisfaction of the people of Jammu and Kashmir State.The Kashhmir issue was discussed several times in the United Nations Security Council during the Cold War period but the former Soviet Union vetoed UN Security Council Resolutions on Jammu and Kashmir in 1957, 1962 and 1971. In August 2019 Russia was the first P-5 country to describe Indian move of scrapping Article 370 and Article 35-A as well as bifurcation of the state as purely an internal matter and called for resolution of Kashhmir problem under the Shimla Agreement of 1972 and Lahore Declaration of 1999.The United States has discussed the Kashhmir issue in its Senate as was done by the Parliament of United Kingdom. Both countries called for observance of the human rights in Jammu and Kashmir and have stressed upon both the countries to resolve the Kashhmir issue through bilateral engagement. France and Germany two important countries within European Union have also echoed the concerns of the Western world on the Kashhmir issue. Kashhmir issue was discussed again in August 2020 in the United Nations Security Council during a close door meeting but no further resolution could be passed because of the lack of consensus among its members on the subject.
REGIONAL DIVERSITY IN JAMMU AND KASHHMIR:-
The former princely state of Jammu and Kashmir controlled by the three nuclear powers of Asia namely India, Pakistan and China is geographically, climatically, ethnically, lingually, culturally and ideologically a very diverse territory. The former Dogra princely state can be divided into several broad ethno-lingual regions each having a distinct identity and associated political ideology and regional aspirations. The Kashhmiri speaking Muslim dominated Kashmir valley and its adjoining Kashmiri Muslim majority districts and sub-districts aspire for an independent country.The Dogri speaking Hindu majority districts and sub-districts of Jammu region are aspiring for a separate statehood within Indian Union. Similarly the Ladaki speaking Buddhist majority Leh district and Zanskar sub-district were demanding Union Territory status for Ladakh region and at present their main demands include Legislative Assembly and Tribal Area status for the Ladakh Union Territory. The Balti speaking Shi Muslim majority Kargil district (excluding Zanskar sub-district) share their political aspirations with Kashmiri Muslims.The multi-lingual but Kashmiri majority Muslims of Chenab Valley and Pahari and Gujjari speaking Pirpanjal Muslim dominated regions also share their political aspirations with Kashmiri Muslims. In Azad Jammu and Kashmir the Pahari and Gujjari speaking Muslims dominantly support an independent country of Jammu and Kashmir. In Shina speaking Dardistan and the Balti speaking Baltistan, the people (Shia Muslims majority regions) want either a provincial status for Gilgit-Baltistan within Pakistan or to become a part of the Independent Jammu and Kashmir. The Burushaski speaking Muslims of Hunza region aspire for automous status even within the Gilgit-Baltistan Province.Thus there is no uniformity in political aspirations among the people living in different regions of Jammu and Kashmir State.
THE DEMOCRATIC WAY FORWARD IN JAMMU AND KASHHMIR:-
Democratically speaking, there can’t be a uniform blanket solution for the whole Jammu and Kashmir State which can suit people of each region of the former princely state. The first step towards the resolution of Kashhmir problem would be to regionalise Jammu and Kashmir State into various Religio-Cultural Regions and sub-divide further each Religio-Cultural Region into Ethno-Lingual Regions on the basis of principle of majority population living in each district and subdistrict in a particular geographical regions of the state. Thus the Hindu majority Dogri speaking Jammu region, Multi-lingual Chenab Valley, Pahari and Gujjari speaking Pirpanjal Region, Buddhist majority Ladakh region, Shia Muslim majority Kargil Region (excluding Zanskar sub-district) Kashmiri Muslim majority Kashhmir Valley, Shina speaking Guris Valley, Pahari speaking Muzaffarabad region, Pahari and Gujjari speaking Jammu West (Azad Kashmir), Dardistan Region, Baltistan Region and Hunza Region would be by and large internally homogeneous regions having distinct identity and identical political aspirations.
Keeping in view the fact that the Kashhmiri speaking Muslim dominated Kashmir Valley has been the geographical, historical, demographic, lingual, cultural and political heartland of Kashmiri nationalism for the last two millennia if not more, the territory needs to be demilitarised by India to establish the sovereign Republic of Kashmir. In the remaining regions of Jammu and Kashmir State a three-option plebiscite under the supervision of United Nations must be held to determine whether the majority of the people in each region wants to stay with Republic of Kashhmir, Republic of India or Islamic Republic of Pakistan. The Republic of Kashhmir can be restructured as the Federal Republic of Jammu and Kashmir in case the other regions of the state want to be a part of the Republic of Kashhmir. Free and fair plebiscite can be held only after India and Pakistan agree to demilitarize the territory of Jammu and Kashmir State. The sovereign Government of Jammu and Kashmir State can discuss the future of Shaksgam Valley, Aksai Chin and Siachen Glacier with China incase these fall within the territory of Federal Republic of Jammu and Kashmir.
The author can be mailed at ghathar@yahoo.co.in
