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The Rediff Special/ Arvind Lavakare

The Real Kashmir Story

An acknowledgement: Much of the historical and legal content of this series of articles beginning today has been drawn, with unabashed gratitude, from a seminal book by Justice (Dr) A S Anand, the present Chief Justice of the Supreme Court of India.

That fascinating book, The Constitution of Jammu and Kashmir -- Its Development & Comments, was based on the author's thesis which earned him, in 1963, the University of London's Ph D in the field of the constitutional laws of the Commonwealth. It was first published in September 1980 and two later editions followed.

It is becoming clear already that the Lahore Declaration of the other day took the Indian media for a ride -- not meaning the luxury bus ride, of course. In all the created hype and hoopla, with loads of accompanying emotions, our media and their millions of public believed that peace with Pakistan was just a bus ride away. Acerbic comments from Islamabad soon thereafter and this month's incidents in Kargil have shown that it was all a dream.

Not caring to ascertain whether Pakistan had altered its long-held stand that a plebiscite in Kashmir was the core issue between the two countries, and not caring to ascertain whether our Parliament was willing to alter its resolution that Jammu and Kashmir was an integral part of India, the Indian media went to town over that bus ride to the Wagah border, believing that peace with the neighbour was all about playing cricket, reciting poetry, embracing each other and going down the lane of sentimental memories.

Worse, disgustingly so, was what the veteran journalist, Kuldip Nayar, wrote, after returning from Lahore, in The Indian Express of March 2, 1999. Now, Nayar, we know, has views that often hurt the Indian underbelly, But he surpassed himself in his latest when he wrote, 'That Vajpayee had described more than once J & K as a problem shows how far he has travelled from his earlier stand that J & K is an integral part of India. It means that he is talking in terms of give and take.' Pray how presumptions can anyone be about our prime minister's thinking on a life-and-death issue like Kashmir?

The trouble lies not so much in Nayar's long-known soft corner for Pakistan. The crux, rather, is that Nayar has not been studious enough or honest enough in penning his perilous presumption.

Nayar overlooked what Atal Bihari Vajpayee said in Bangalore early this year. As reported by The Times of India news service and as published on the front page of The Times of India, Mumbai, of January 5, 1999, our prime minister said, 'Now India will ask Pakistan to give up Pakistan-occupied Kashmir prior to any negotiations... Let us see what Pakistan's reaction is going to be. We are not afraid of negotiations and we will talk without fear.' Where, pray, is any 'give-and-take' in that comment?

If Nayar thinks those words do, in fact, indicate even the faintest move of our prime minister towards a 'give-and-take', it is a pity. It's a pity that such distortions are projected before millions of readers by someone who was once the editor of a truly nationalist newspaper, who was once our country's high commissioner to the United Kingdom, and who is presently a member of our Rajya Sabha.

An even greater pity is that almost all the debate on the Kashmir question all these long years has ignored four basic truths:

1. The legality and constitutional validity of the accession of the sovereign princely state of Jammu and Kashmir to India in October 1947;

2. The problem which India referred to the United Nations Security Council in January 1948 was restricted to Pakistan's aggression in Jammu and Kashmir and not about the accession itself.

3. The failure of the United Nations to redress India's specific complaint and, instead, its perverse twist to our complaint while our government of the time meekly looked on;

4. Jammu and Kashmir is the only state in India to have its own legal, written constitution (adopted on November 17, 1956) under which Section 3 (which cannot be amended) has categorically confirmed that 'The State of Jammu and Kashmir is and shall be an integral part of the Union of India.' But first there is the Preface. Mention of third party mediation on the Kashmir imbroglio prompts our politicians of various hues to immediately press the panic button. On the other hand, the Pakistan politician is delighted when Kashmir enters the international stage. Why?

Absolutely no clue to this recurring riddle is unfortunately available to the common man who reads our newspapers or watches the flippant debates on our various idiot box channels. Neither does any politician or political analyst explain the mystery.

The Origin

The fact of the matter is that India has burnt its fingers -- and much more -- in the period of over 50 years since it chose to refer the issue to the United Nations Security Council on January 1, 1948.

Just what was the issue? Briefly stated, its ingredients were as follows:

a. Even as the ruler of the princely state of Jammu and Kashmir dithered over whether to accede to the then Dominion of India or to the Dominion of Pakistan or remain independent (as required by the Indian Independence Act, 1947, of the British parliament), a large column of several thousand tribesmen from the Pakistani territory attacked the frontiers of his state on October 20, 1947. They were armed with bren guns, machine guns, mortars and flame throwers.

Joseph Korbel (father of Madeliene Albright, the present US secretary of state) recorded in his book Danger in Kashmir (1954), that 'Srinagar trembled before the danger of the tribesmen's invasion.' Regulars from the Pakistan army were known to be part of the invading force which was believed to be under the command of Akbar Khan, a major general in the Pakistani army.

b. On October 26, 1947, the maharaja of Kashmir, realising that his dream of independence had been shattered, signed the Instrument of Accession (designed by the British government for all of the 500-odd princely states over which it had exercised paramountcy till August 1947) and asked for help from the Dominion of India to which he had agreed to accede that day.

c. On October 27, 1947, the Dominion of India accepted the Kashmir ruler's accession and the first batch of Indian troops landed at Srinagar airport from Indian Air Force planes.

d. On November 7, 1947, the Indians won the battle of Shaltang, thereby removing all threats to Srinagar. Three days later, Baramulla was recaptured. The process of retreat by the enemy on all fronts had begun.

e. With the Indian army finding that the only way the raiders could be completely removed from Kashmir was by attacking their bases and sources of supply in Pakistan, India warned Pakistan, on December 22, 1947, that unless Pakistan denied her assistance and bases to the invaders, India would be compelled to take such action.

At that crucial stage, 51 years ago, of Indian history, Lord Mountbatten, the British Crown representative who was then Governor-General of India, urged our prime minister, Jawaharlal Nehru, about 'the overwhelming need for caution and restraint'; he stressed 'how embroilment in war with Pakistan would undermine the whole of Nehru's independent foreign policy and progressive social aspirations.' And, on Mountbatten's advice, Nehru decided to lodge a complaint to the Security Council.

That was done by India invoking Article 35 of the UN Charter under which a UN member is entitled to bring before the Security Council a 'situation' which perils the international peace. As cited by Jagmohan (twice the governor of Jammu and Kashmir and presently a minister) in his book, My Frozen Turbulence in Kashmir (1992), India's complaint said, 'since the aid which the invaders are receiving from Pakistan is an act of aggression against India, the Government of India are entitled, in international law, to send their armed forces across Pakistan territory for dealing effectively with the invaders'.

According to Justice Anand, the Government of India appealed to the Security Council to ask the government of Pakistan:

* to prevent Pakistan government personnel, military and civil, participating in or assisting the invasion of Jammu and Kashmir state;

* to call upon other Pakistani nationals to desist from taking any part in the fighting in Jammu and Kashmir state;

* to deny to the invaders:

The above was India's case and as Lt Colonel Lord Birdwood observed in Fortnightly Review, London, August 1952, 'illegal act of aggression by Pakistan and a legal accession of Kashmir to India is therefore the basis of the Indian case.'

Pakistan, however, rejected the Indian charges in its letter of January 15, 1948, to the Security Council. Among the counter charges which Pakistan made was that India's was a persistent attempt to undo the Partition scheme and that the acquisition by India of Kashmir's accession was through fraud and violence.

Thus, what India had thought was a 'simple and straightforward issue' for the Security Council to resolve began to take a devious, diabolical twist. While the Indian representative to the Security Council had thought that the 'withdrawal and expulsion of the raiders and the invaders from the soil of Kashmir and the immediate stoppage of the fight... are the only tasks' to which the Security Council was to address itself, the issue took such a bizarre and perplexing course that today, over 50 years later, the Kashmir chapter has become the Kashmir conundrum.

The UN: A record for international impotency

The Rediff Specials

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