Tapan K. Bose

(Ed. Note: Tapan K. Bose is the chairperson of South Asian Forum for Human Rights based in Kathmandu, Nepal.)

Prologue

In August 1947, the British left after partitioning the Indian subcontinent into two independent nation state, India and Pakistan on religious-communal lines. There were 562 "princely states" in British Indian Empire. Maharajas, Rajas and Nawabs ruled over these territories under the suzerainty of the British Crown. On the lapse of British Paramountcy, these rulers were 'legally "free to decide whether to join either of the two new states or remain independent. This legal choice of independence was essentially a hypothetical one. The religious composition of the subjects and the geographical location of these princely states dictated their merger with the newly emerged successor nation states of India and Pakistan. No princely state could become independent.

Maharaja Han Singh, the Hindu ruler of mountain kingdom of Jammu and Kashmir, however was anxious for independence. The princely state of Jammu and Kashmir embracing over 128,000 square kilometres was uniquely placed as a buffer territory between India and Pakistan and had common borders with Afghanistan and China. Neither Pakistan nor India was ready to accept an independent Jammu and Kashmir. They kept on pressing the Maharaja to accede to either of the new states. Pakistan claimed this territory as 72 percent of the Maharaja '5 subjects were Muslim. India wanted the Muslim majority territory of Kashmir as an emblem of her secularism?. Sheikh Mohammed Abdullah, the most popular leader of Kashmir's anti-monarchy movement of the thirties and the forties, had encouraged the Indian leaders to believe that Kashmiri Muslims wanted to merge with a secular India. However, the Maharaja had put the Sheikh and other leaders of the Kashmir democracy movement behind the bars. He offered a "stand-still" agreement to India and Pakistan, as he wanted some more time to make up his mind. Pakistan signed the agreement but India refused.

As the Maharaja continued to dither, violence broke out in the Jammu and Punch regions where sections of the local Muslim wanted to merge with Pakistan. There was a similar revolt in the northern hill territory of Gilgit In violation of the "stand-still" agreement, Pakistan stopped the passage of food and other essential commodities to Jammu and Kashmir through her territory. In September 1947, tribal raiders backed by Pakistan army invaded the valley. The Maharaja requested India to send in its armed forces. India made it contingent upon his signing the instrument of accession in favour of India. The ruler signed the instrument of accession, and India accepted it with the proviso that after the restoration of normalcy, the final political status of the territory would be decided through a referendum. Indian soldiers were airlifted to Srinagar on October 27, 1947. India and Pakistan began their first war in less than three months of coming into being as independent states.

In January 1948, India appealed to the Security Council of the United Nations to restore peace in Kashmir. On January 20, 1948, the United Nations Commission on India and Pakistan (UNCIP) was constituted. (UNSC Resolution S/654) In April 1948, the UN adopted the first Plebiscite Resolution. The resolution called upon Pakistan "to withdraw all its armed personnel including the tribesmen from the territory of Jammu and Kashmir". It asked India "to reduce its armed forces to the minimum level needed to maintain law and order" and to hold a plebiscite as soon as possible on the question of accession of Jammu and Kashmir to India or Pakistan. The plebiscite administrator was to be nominated by the UN Secretary General. (UNSC Resolution S/726, April 21, 1948.) A UN crafted cease-fire was implemented on January 1, 1949. The plebiscite resolution was reaffirmed.

Between 1949 and 1958 UNCIP made several attempts to implement the plebiscite resolution. Even partition of the territory along the cease fire line with limited plebiscite in the valley was proposed at one stage. The intransigence of India and Pakistan defeated every effort of the UN.

India and Pakistan created two separate political entities on the disputed territory -"Government of Jammu and Kashmir State" (India) and "Government of Azad Kashmir" (Pakistan) under the stewardship of their yes-men. The emergence of these political entities altered the ground situation as these new "stake holders" started manipulating the people of the divided territory on the command of their masters in Delhi and Karachi. The Kashmiris, who disagreed with New Delhi or Karachi, were soon put behind the bars. By 1958, within ten years of having taken the Kashmir dispute to the United Nations, and having asked for international intervention in the resolution of the dispute, India changed its position on outside mediation in Kashmir. As a result, during 1960 and 1964 India turned down the offers of mediation by President Nasser of Egypt, President Kennedy of the United States of America and the Prime Minister of United Kingdom.

The second Indo-Pakistan war on Kashmir took place in 1965. The third Indo-Pakistan war of 1971, which began on the soil of former East Pakistan and present Bangladesh, spilled over onto the territory of Kashmir. For the last fifty-two years, India and Pakistan have been virtually at war with each other. At times this war has been fought with guns, but most of the time it has been a verbal duel. The so-called "Kashmir dispute" lies at the very core of this enmity. Both India and Pakistan feel incomplete without Kashmir. Because of this enmity the people of the former princely state of Jammu and Kashmir have been living under virtual war conditions. The cease fire line of 1949, which became the Line of Control (LoC) after the third Indo-Pakistan war of 1971 continues to be violated by both sides. These intermittent armed conflicts have taken a heavy toll on the lives of Kashmiris over the last five decades.

In 1989 sections of Kashmiris began a militant movement for national self-determination. In retaliation, Indian government let loose a reign of terror in Kashmir valley. Pakistan aided and abated this armed struggle and tried to use it to filthier its own agenda in Kashmir. While India calls the movement in Kashmir, "Pakistan's proxy war" Pakistan says that it is merely providing moral support to the Kashmiris in their struggle for a just cause.

Since 1948, India and Pakistan have held several rounds of "official dialogues" to resolve the Kashmir dispute and other "outstanding" conflicts. However, these were the dialogues of the deaf where both sides merely asserted and reasserted their respective positions. As a result of this stalemate, the two governments have often restored to military means for resolving disputes.

The first meeting of Indian and Pakistani Defence Secretaries on the dispute over Siachen glacier began in January 1986 The talks continued for three years, culminating in the meeting of the Prime Ministers of India and Pakistan in Islamabad in July 1989 where the "broad parameters of Siachen agreement" was worked out. However, when the military commanders of both countries met in New Delhi in August 1989 " to determine the position of their respective forces in Siachen," the talks failed. Despite, the agreement on "broad parameters" by Prime Ministers, Siachen dispute remains unresolved till date. Similarly, the talks on the Wuller Lake Barrage, which began in 1987, after eight unsuccessful rounds ended in a stalemate in 1992. After a break of nearly two years, during which India and Pakistan indulged in the most violent form verbal sabre rattling, the official dialogue was resumed in 1994. The Lahore Declaration of February 1999, was the culmination of this process. It seemed that the Prime Ministers of India and Pakistan, had agreed to shun military means and resolve all the disputes through negotiations. The Lahore Declaration lent vigor to the voices for peace on both sides of the border. The people of India and Pakistan began to hope for meaningful cooperation and peace. This opening created by the Lahore Declaration once again was closed by the latest war in Kargil.

Indian Position on Kashmir

1. The state of Jammu and Kashmir is now and has been since its accession to India on 26 October 1947 an integral part of the Indian Union. Nothing agreed to by India in the UN Security Council of 13 August 1948 and January 5, 1949, or in any subsequent instrument, alters this status or in any way modifies Indian sovereignty over the state.

2. The only component of the Kashmir issue legally admissible in the talks between India and Pakistan on the future status of the state pertains to Pakistan vacating the territories illegally occupied by it. The future status of the state is otherwise an exclusively domestic matter to be resolved, within the Four Corners of the Indian Constitution.

3. Talks between India and Pakistan in regard to the future status of the state should be held within a strictly bilateral framework and in conformity with the Simla Agreement of July 1972.

Pakistani Position on Kashmir

1. The state of Jammu and Kashmir is now and has been since the end of British rule over undivided India, a disputed territory. The state's accession to India in October 1947 was provisional This understanding is formally acknowledged in the UN Security Council resolutions of August 13, 1948 and January 5, 1949 to which both Pakistan and India agreed and which remains fully in force todity, and cannot be unilaterally discarded by either party.

2. Talks between India and Pakistan over the future status of the state should be focused upon securing the right of self- determination for the Kashmiri people via conduct of a free, fair and internationally supervised plebiscite, as agreed in the aforementioned UN Security Council resolutions.

3. The plebiscite should offer the people of Jammu and Kashmir the choice of permanent accession of the entire state to either Pakistan or India.

4. Talks between India and Pakistan in regard to the future of the status of the state should be held in conformity both with the Simla Agreement of July 1972 and the aforementioned UN Security Council resolutions. An international mediation in these talks should not be ruled out.