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Volume 23 - Issue 04 :: Feb. 25 - Mar. 10, 2006
INDIA'S NATIONAL MAGAZINE
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ANALYSIS

A working paper on Kashmir

A.G. NOORANI

For the first time, the leaders of India and Pakistan seem close to finding a solution to the Kashmir problem.



Indian troops are deployed on the Actual Ground Position Line from the end of NJ 9842 to Indira Col. Pakistan claims the area from NJ 9842 to the Karakoram Pass. A line running straight from NJ 9842 to the northern border with China would be a fair compromise.

"Many of us think that it is rather disgraceful and does no credit to India that this matter should have dragged on... so long," Vallabhbhai Patel told the United Nations Mediator on Kashmir, Owen Dixon, on July 20, 1950.

IN 2006, opportunity knocks loudly at India's doors. A settlement of the Kashmir dispute is within reach without any detriment to the national interest and on terms acceptable to all the parties concerned - India, Pakistan and the people of Kashmir. Prime Minister Manmohan Singh has, therefore, wisely convened an all-party conference on Kashmir on February 25.

Five years earlier, the then Prime Minister, Atal Bihari Vajpayee, promised in the Kumarakom Musings "to seek a lasting solution to the Kashmir problem". In this quest "both in its external and internal dimensions, we shall not traverse solely on the beaten track of the past" (The Hindustan Times, January 2, 2001). He did not indicate the new track. One hopes he will publicise it now in a constructive contribution to the discussion. He put paid to the falsehood that Kashmir is a domestic matter and a closed chapter. Paragraph 6 of the Shimla Pact (1972) explicitly binds the two countries to seek "a final settlement of Jammu and Kashmir".

In retrospect, Prime Minister Manmohan Singh's interview to Jonathan Power, published the day he was to take oath, has proved to be of seminal importance. His views were based on the national consensus on Kashmir, and defined the limits beyond which India cannot go. His emphasis was on creativity; on opportunity, not on obstacles.

The Prime Minister's remarks deserve quotation in extenso: "Then we have to find a way to stop talking of war with Pakistan. This is stopping us from realising our potential. Two nuclear armed powers living in such close proximity is a big problem. We have an obligation to ourselves to solve the problem" (emphasis added throughout). He was only too right. A few months earlier, on December 13, 2003, former U.S. Secretary of State Madeleine Albright said in New Delhi that India should enter the U.N. Security Council as a permanent member but agree to a plebiscite in Kashmir (The Hindu, December 14, 2003). Her recipe is outdated; the stipulation - a Kashmir accord - is tacitly shared by all.

Jonathan Power reported: "I pushed him on how he himself would accept compromise with Pakistan over Kashmir. `Short of secession, short of re-drawing boundaries, the Indian establishment can live with anything. Meanwhile, we need soft borders - then borders are not so important.'" He ruled out, both, plebiscite in, and independence for, Kashmir (The Statesman; May 20, 2004).

At a public meeting in New Delhi on April 13, 1956, Jawaharlal Nehru offered to Pakistan: "I am willing to accept that the question of the part of Kashmir which is under you should be settled by demarcating the border on the basis of the present cease-fire line. We have no desire to take it by fighting" (vide the writer's book, The Kashmir Question, 1964, page 72, for the background). He had in private repeatedly made this offer to Pakistan since 1948. Indira Gandhi was agreeable to this at Shimla in July 1972. Vis-a-vis the people of Kashmir, Manmohan Singh said: "Autonomy, we are prepared to consider."

President Pervez Musharraf is the first leader of Paksitan to: (a) opt for self-governance in preference to self-determination which implies change of borders; (b) keep the U.N. resolutions aside; (c) give up plebiscite as well as independence; (d) desist from demanding any territory for Pakistan; (e) reject the communal criteria; (f) not demand Kashmir's secession from India; and (g) encourage Kashmiris to talk to New Delhi.

But, just as no government of India can accept Kashmir's secession from the Union, no government of Pakistan can accept the Line of Control (LoC) without more as a "permanent border". The crucial question is whether New Delhi is prepared to make those concessions which would make it possible for Islamabad to accept Manmohan Singh's criteria. Musharraf has, in one statement after another, carefully moved Pakistan's position till it has come to meet those criteria. The question, to repeat, is what is India prepared to offer him in order to arrive at a settlement of the Kashmir problem?

There are four harsh truths which all sides will have to reckon with honestly, realistically if a compromise is to be arrived at. One concerns the people's alienation. Indira Gandhi wrote to her father from Srinagar on May 14, 1948, at the height of the war following the tribal raid: "They say that only Sheikh Saheb is confident of winning the plebiscite... ." (suspension marks, indicating deletions from the text, are in the original; Two Alone, Two Together edited by Sonia Gandhi; Penguin, 2004, pages 512-518). Five years later, even Sheikh Saheb abandoned hope, as President Rajendra Prasad reported to Nehru on July 14, 1953, after Vice-President S. Radhakrishnan's trip to Kashmir (Dr. Rajendra Prasad's Correspondence; Vol. 16, page 91). On May 1, 1956, Jayaprakash Narayan wrote to Nehru that "95 per cent of Kashmir Muslims do not wish to be or remain Indian citizens" (Selected Works of Jawaharlal Nehru; Second Series; Vol. 33, page 377). Nehru kept his eyes securely shut. The nation followed suit. The result is that Kashmir became not only a cancer in the body politic but a schism in the soul. Brazen untruths were told in defence of the indefensible and we knew that. So did the world.

What message do women wailing as funeral processions of slain militants pass by their homes convey? Sunanda K. Datta-Ray reported from Srinagar during the last Lok Sabha polls: "No one in Kashmir's electoral fray would dream of condemning the militants. Yet everyone is ready to exploit militancy to score points against the adversary." This was not prompted by fear of the militants but the mood of the people, for, as he reported, "no one is as blatant as the National Conference in supporting the guerrillas. Its rhetoric can compete with outright rebel organisations... " (The Telegraph; April 28, 2004). Last month, an Indian journalist wrote of a "people who hate us". Even if militancy is rooted out, the alienation with remain.

This truth is addressed in different ways by contesting sides. The nationalist denies it lest it spell secession or admits it to plead realpolitik and refuse that demand; the moralist admits it to concede just that. Both are wrong. There is another truth which time has established. India simply cannot allow Kashmir to secede from the Union. There is no morality without prudence. Do we plunge the State, its regions and communities, and the entire sub-continent into turmoil? India did resile from its pledge to hold a plebiscite, but other equities have arisen which it is equally immoral to deny.

If the third truth is an aggrieved Pakistan, the fourth is one least understood - the yearning for unity not only among Kashmiris in both parts of the State, but as deeply among the Jammuites.

We have to reckon with all the four truths to devise a solution which satisfies none completely, has its drawbacks, yet addresses their concerns in so substantial a measure as to make it acceptable. It is preposterous to tout pie-in-the-sky solutions (Andora, Confederation, and so on). A `perfect' solution to so complex, intractable a problem is impossible. Foreign models are instructive to distil principles for resolving problems; harmful for blind imitation. The actual conditions and the minds and emotions of the people must be borne in mind. A Kashmir accord will have to be endorsed by parliaments of both countries and by Kashmir's Assembly. It must be a final settlement; clear and practicable.

Musharraf's statements meet Manmohan Singh's criteria eminently. On December 25, 2003, he "left that [U.N. Resolutions] aside"; on October 25, 2004, he mentioned seven regions of the State, two on his side, and suggested we "identify" the region forever and "change its status". In New Delhi on April 18, 2005, he said "the LoC cannot be permanent. Borders must be made irrelevant and boundaries cannot be altered. Take the three together and now discuss the solution". On May 20: "Self-government must be allowed to the people of Kashmir" and "we do understand India's sensitivity over their secular credentials". So, "it cannot be, may be, on a religious basis". June 14: "Autonomous Kashmir is my earnest desire, but its complete independence will not be acceptable to both India and Pakistan."

If, both, plebiscite and independence are ruled out, surely, so is Kashmir's secession. What of the LoC ? On October 21, he suggested: "Let's make the LoC irrelevant. Let's open it out." He did not demand its abrogation, significantly. That is an action. Irrelevance is an opinion, an inference from action on the LoC. It survives; but becomes irrelevant in the daily lives of the people.

Musharraf's interview to Karan Thapar on January 8 yielded four helpful basics. He said: "Autonomy within the Indian Constitution is not acceptable... We are working for something between autonomy and independence and I think self-governance fits in well." But, at Canberra on June 14, Musharraf said "autonomous Kashmir is my earnest desire".

Secondly, the quantum of self-governance, the nub of the matter, will be defined by both states. "Let us work out self-governance and impose the rules" on both parts. Kashmiris will be involved. "The flexing out has to be done jointly." Thirdly, demilitarisation. On May 20, he had left open the sequence between it and end to terror. He now stipulated it as the first step; tactically, because India had not responded, he complained.

Lastly, he said: "Joint management would be a solution which we need to go into. There have to be subjects which are devolved, there have to be some subjects retained for the joint management." By India and Pakistan? That would be an unrealistic condominium. "Sovereignty gets reduced" by grant of self-governance, but, he added, "it is not undermined". Specifically, "there has to be a division [of Kashmir]. We are not talking about giving independence to Kashmir". Ergo, the LoC remains; now as an open international boundary. India and Pakistan will retain sovereignty over their respective parts of Kashmir, which are granted self-governance "with both countries guaranteeing it and overseeing it", each "having a stake in guaranteeing the situation in the other side of Kashmir".


The Prime Minister's criteria are thus fully met. Secession is not involved. Musharraf's ideas blend the Aalands' and South Tyrol's schemes - mutual guarantees of autonomy while confirming existing sovereignties - with the Northern Ireland accord of 1998, based on the status quo. Reunification of Ireland is formally abandoned. But a consultative North-South Ministerial Council on matters of common interest is also established.

Clearly, the problem is now ripe for solution. Involved are three factors - political, diplomatic and constitutional. Politically, the leadership must have the will to settle, and determination and constancy in a process which is certain to take time and invite obstruction and even sabotage from within and without the system. An educative effort must be launched to prepare public opinion. Elements in the Irish Republican Army repeatedly launched attacks in London and elsewhere during the peace process. Diplomatic creativity of a high order is required. Constitutionally, an accord on the lines of the Manmohan Singh-Musharraf convergence would be perfectly valid.

India and Pakistan held substantive talks on Kashmir three times before - in 1947-1950 on plebiscite; in 1955 and 1963 on partition. In May 14-18, 1955, Nehru held talks with Pakistan's Prime Minister Chaudhury Mohammed Ali and Defence Minister Iskandar Mirza. Maps were produced. Nehru preferred "a final settlement now" in one go. The visitors proposed partition on a communal basis. Nehru proposed variations in the cease-fire line. The Kishanganga river was "a suitable line"; besides, "the Poonch area" and "a bit of Mirpur" could be ceded to Pakistan (SWJN: Vol. 28, pages 246-263).

The Swaran Singh-Bhuto talks in 1962-63 centred on drawing an international boundary through Kashmir (vide Y.D. Gundevia's Outside the Archives, page 248; he was Foreign Secretary. Brigadier D.K. Palit, Director, Military Operations, gives details in his memoirs War in High Himalayas, page 393). Swaran Singh asked Palit "if I could consider offering a little more of Kashmir Valley because Pakistan's acceptance of partition would hinge on how much of the Valley we were willing to give up". Palit demurred, but Swaran Singh was all for it. He went so far as to offer "the Handwara area" in the northwest of the Valley to Pakistan. Bhutto asked for the entire State bar Kathua.

Like its predecessor, the cease-fire line of 1949, the LoC of 1972 is also an arbitrary result of war. Nehru was all for "readjustment" of the cease-fire line. He cabled to Krishna Menon on February 18, 1957: "When I first made a proposal for a settlement on basis of cease-fire line (in 1955), I made it clear that this would be subject to adjustments on geographical, strategic and like grounds" (SWJN; Vol. 36, page 400).

Indira Gandhi held the same view of the LoC. On July 11, 1972, she told Shahid Kamal Pasha of Morning News of Karachi: "If you look at the map, it does not appear rational and it has not proved so.... " She would not like to force its rationalisation on Pakistan. It would be done only through mutual understanding and consent (PTI; The Times of India, July 13, 1972).


Obviously, the LoC must be redrawn as part of a settlement. It is particularly cruel to Jammu where villages are divided. India finds it too close for comfort in Kargil, Pakistan feels the same in the Neelam Valley. In the process, the Siachen issue can also be resolved as it was, almost, in 1989. Iqbal Akhund, Benazir Bhutto's National Security Adviser and Foreign Affairs Adviser, writes that India claimed "a ruler straight line" from NJ 9842, where the LoC ends, to the Chinese border (Trial and Error, page 105). In the negotiations conducted by Rajiv Gandhi's aide Ronen Sen, now Ambassador to the United States, that was an Indian offer, presumably. Rajiv Gandhi revealed on April 27, 1991, that he had "almost signed a treaty on Siachen with Zia. The only reason it was not signed was that he died". Barbara Crossette met Rajiv Gandhi hours before his tragic assassination on May 21, 1991. She misunderstood him when she reported, quoting him, in the New York Times: "We were close to finishing an agreement on Kashmir. We had the maps, and everything ready to sign. And then he was killed." Was it that accord which Ronen Sen drew on?

Indian troops are deployed at present on the Actual Ground Position Line (AGPL) from the end of the LoC at NJ 9842 to Indira Col. Pakistan has been claiming the line from NJ 9842 to the Karakoram Pass. The 1989 line would be a fair compromise.

Well before Prof. P.N. Dhar wrote of the Indira Gandhi-Bhutto understanding at Shimla that the LoC would gradually be endowed with "the characteristics of an international border", a high Pakistani source had, in an interview to this writer, used identical words. Prof. Dhar put them in direct quotes, significantly, as if from a written record.

In 1972, the leaders' emphasis was on finality and clarity; their successors must blend three other features with emphasis on the line's "irrelevance" as a divide. Dr. B.R. Ambedkar was wont to distinguish between a bar, which divided, and a hyphen which united even as it divided. The LoC, once finalised, will tear the hearts of Jammuites as well as compatriots in the Valley unless they are assured that it is for everyone's good that the distrustful states know where their jurisdiction ends and all doubt is removed. But, it should be a uniquely porous frontier and that should be written into the agreement. The disgracefully restricted bus accord of February 16, 2005, must be scrapped. No bus is allowed to cross the LoC. The former "Rahdari" system (letter from a District Commissioner) should be restored and expanded. There should be free movement of persons, goods, mail and literature.

As a salve to the wound, it would be appropriate to record the irrelevance of the line. It would divide sovereignties, not people. The letter from the British Representative to the Afghan Foreign Minister, which formed part of the Treaty of November 22, 1921, can be adapted. Article 2 of the Treaty confirmed the Durand line as shown in an annexed map. The letter assured Afghanistan respect for its "interest" in the "conditions of the frontier tribes of the two governments" (Cmd. 1786, 1922). The India-Pakistan accord should record respect for the sentiments of the people of Jammu and Kashmir and their desire for free interaction as one people across a frontier which history imposed in order to resolve a tragic dispute. This principle should be extended to a solution to the dispute itself - acceptance of the interest of each country in the maintenance of self-governance by the other in its part of the State.

A lot of horse-trading will be inevitable on the drawing of the line. But it is best done as part of the dispute's resolution. If postponed, the LoC will become final in all its hideousness. The "international boundary through Kashmir", an expression used in the 1963 talks, will be defined, with a map attached in an annexure to the Agreement on the Final Settlement of Jammu and Kashmir, the Shimla phraseology.

It would (a) contain provisions defining self-governance for both parts of the State; (b) provide for consultative bodies between them and between New Delhi and Islamabad; and (c) establish machinery for conflict resolution. The consummation should be crowned with a Treaty of Friendship and Cooperation between India and Pakistan, signed simultaneously with the Kashmir Agreement.

This brings us to the nitty-gritty of the accord, in its internal and external dimensions. Once the substantive part is agreed, the procedure whereby it can be finalised must also be agreed. Last, but not least, the constitutional hurdles which must be crossed in the ratificatory stage must be understood clearly. A Kashmir settlement based on a blend of the Manmohan Singh-Musharraf criteria poses no problem which is not soluble and no hurdle which cannot be overcome. It is necessary to put paid to the false notion that Kashmir already enjoys autonomy and Article 370 protects it. One of its architects, Nehru, himself admitted in the Lok Sabha on November 27, 1963, that Art. 370 "has been eroded... This process of gradual erosion of Article 370 is going on. Some fresh steps are being taken and in the next month or two they will be completed". The Union Home Minister G.L. Nanda said on November 21, 1964, that Article 370 could serve as "a tunnel in the wall" (sic.) to enlarge the Union's powers over Kashmir.

This was utterly unconstitutional, as President Rajendra Prasad pointed out in a Note to Prime Minister Nehru on September 6, 1952. Article 370 empowers the President to extend matters which substantially fall within the Instrument of Accession by consultation with the State government; if they go beyond, its "concurrence" was required provided it was sought before Kashmir's Constituent Assembly was convened (November 5, 1951) and was later ratified by it. "Repeated recourse to the extraordinary powers" which authorise the executive to amend the Constitution was wrong. Art. 370 clearly envisaged that it should be "exercised only once" by a single Order when Kashmir's Constitution was finalised. Its Constituent Assembly did so and dispersed on November 17, 1956. The ratificatory body vanishes. All subsequent increase of Central power is void. The basic structure of the State's constitutional status was destroyed. A Governor appointed by the Centre replaced the Sadar-e-Riyasat elected by the State Assembly. The main Order of May 14, 1954, is questionable, though the Assembly approved, on February 15, 1954, extension of some provisions of the Constitution of India. But, as the Report of the State Autonomy Committee (1999) points out, the Order went beyond the Delhi Agreement of 1952 and was made hastily before the State's Constitution was enacted (pages 46-47). Thereafter, New Delhi used its stooge Chief Ministers, elected by rigged polls, to accord the concurrence since the ratificatory body had dispersed.

In 1959, the Supreme Court took a correct view on this; but changed its view in 1968 without referring to that ruling though Justice M. Hidayatullah was a member of both Benches. Art. 370 is the only provision which represented a compact negotiated between Nehru and Sheikh Abdullah between May and October 1949. Designed to protect autonomy, it was freely used to destroy it. The Supreme Court did not help. (AIR 1959 S.C. 749 and AIR 1970 SC 11; vide the writer's article, "Article 370: Law and Politics" in Frontline, September 29, 2000, reproduced in Constitutional Questions & Citizen's Rights; Oxford University Press, 2005; pages 371-384). The result? On November 19, 1971, Minister of State for Law Netiraj Singh Chaudhury, citing extensions of Union powers, assured the Lok Sabha that Art. 370 had been withering away and would vanish in course of time. That goal has been reached.

It is insulting to offer this husk of Art. 370 as a substitute for "self-governance" or "autonomy". There is no guarantee against future abuse. There is now a total collapse of the entire constitutional scheme in the relations between Kashmir and the Union and within Jammu and Kashmir itself. The Sadar-e-Riyasat, elected by the State Assembly, has been replaced by a Governor handpicked by New Delhi. A new constitutional set-up is called for. It is possible to devise it consistently with the Constitution of India.

This is the first part of a two-part article.





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