By Shams Rehman
Is Kashmir an Integral Part of Pakistan or India?
The very fact that students belonging to two South Asian countries claiming ‘Kashmir’ shows that at present it does not form part of any. For if it did then there would not be a need to have this debate. However, at the same time the contesting claims point towards the existence of a dispute. The students of Pakistani and Indian societies are debating the claims of their countries of origin here because the perspectives on Kashmir of the Indian and Pakistani generations of these students and their parents have been formulated and shaped by the ‘official’ and ‘national’ discourse on Kashmir transmitted and constructed into national rhetoric by the respective establishments through state owned and/or controlled mediums of opinion making including educational curriculum and print and electronic media till recently. Of course it also shows that they are interested in human issues and wish to resolve this issue for the betterment of the people in their respective countries and beyond.
Coming back to the claims of the two governments over Kashmir, they are rooted in the British Colonial framework, United Nations Resolutions and historical realities concerning geographical proximity, cultural affinities and religious associations of the state people. The popular politics in Kashmir was also to affect and be affected by the events.
Colonialism: British and Princely India
It was indeed the East India Company that laid the foundations of a distinct political entity which has since evolved to be commonly and popularly known as the Kashmir State on 16th March 1846. On this day the Company handed over for ever in the independent possession of Maharaja Gulab Singh and his heirs all the territories that were officially named as ‘The State of Jammu and Kashmir and Tibet Ha’ (or sometimes Frontier Illaqas) but have since become commonly known as Kashmir or Kashmir state.
Since the Company emerged as the main power and about a decade later was taken over by the British Crown, it became (at least at the ruling levels) the source of legislation, use of force, enforcement of decisions and political demarcations.
In this context the boundaries of ‘The State of Jammu, Kashmir and Tibet Ha’ or ‘The State of Jammu, Kashmir and Frontier Illaqas’ were drawn and the sovriegnity of Maharaja Gulab Singh and its male body heirs was recognised by the British and accepted by the neighbouring states including Punjab from whose occupation British took the territories of Kashmir state and handed over to Maharaja Gulab Singh.
Gulab Singh and three of his generations ruled Kashmir till the invasion of India and Pakistan in October 1947. The contesting claims regarding who invaded first and with what motives have been debated for all these years. Once again the official discourse of India and Pakistan renders the other responsible for the Kashmir problem and problems in Kashmir based on their claim over Kashmir.
Before the departure of British, Kashmir formed a princely state with full internal autonomy of course not without some bumps and disagreements. Nevertheless legally no other state power or authority had any jurisdiction over the 84,000 sq. Miles of territory and its population – the State Subjects. The Kashmir state like over 500 other states of various size and magnitude did NOT form a part of the British India. It was a constituent part of the Princely India.
The mechanism formulated by the departing British Colonial rulers to grant freedom to the peoples of British and Princely India was not one and the same. The principle of Muslim majority forming Pakistan applied only and solely to the areas under direct rule of British known as British India. The states which were over 560 of which Kashmir was one of the largest became independent under the following clause (b) of the Act.
“the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise;”
In a press conference on 4th June 1947 Mountbatten the last Viceroy presented the status and destination of the states in the following framework:
1. Indian States were independent in treaty relations with Britain
2. On 15 August 1947 the paramountancy of British crown was to lapse
3. Consequently the princely states would assume independent status
4. The states would be free to choose one or other constituent assembly
( For details see http://en.wikipedia.org/wiki/Indian_Independence_Act_1947)
While it is also evident from history that Mountbatten advised Maharaja of Kashmir to not opt for independence however this advice was not constitutionally obligatory or legally binding for the Maharaja of Kashmir.
Several smaller states joined India or Pakistan but there were some who did not choose the course prescribed by Mountbatten etc. Hyderabad for example, aspired for independence where a Muslim ruler ruled majority of non-Muslim population and the Muslim ruler of Jonagarh acceded to Pakistan despite its non Muslim majority population.
In this context had Hari Singh, had the last Maharaja of Kashmir decided to go with India there would not been a valid reason for Pakistan to challenge that at least legally. For according to the stated policy of Muslim League the state rulers had the right to decide their future. However, Kashmiri Maharaja did not opt for India or Pakistan. He decided to remain independent and on 12th August 1947 he sent a telegram to the rulers (to be) of India and Pakistan offering stand till agreement which meant the existing arrangements between the Kashmir state and British India (now India and Pakistan) to be continued. While Pakistan accepted the offer, India asked for more time for further considerations. As alluded above there are contested claims about the invasion in Kashmir and what drove the Indian and Pakistani civil militants of Jan Sang and Tribals groups followed by regular armies to attack the state. Pakistan claims that the Muslim population revolted against maharaja and tribals went to help their endangered Muslim brethren while India argues that Kashmiri ruler invited India for help that was sent only after Hari Singh signed the accession document. India also claims that on the basis of this document Kashmir became the integral part of the Indian Union. This claims is then blended in the Indian official discourse through politicised myths, heritage and history which ‘proves’ that Kashmir has always been a natural hence integral part and the ‘crown of the secular body’ of India.
Pakistan on the other hand has primarily built its case on ‘two Nation Theory’ and the UN resolutions. The two nation theory was a term coined to mean the partition of the British India on the basis of Muslim majority areas becoming Pakistan. Since this principle was applicable solely and exclusively to the British India of which Kashmir was not a part in any sense of the world the Pakistani claims on Kashmir on these bases have no legal status.
United Nations and Kashmir
The case of Kashmir was taken to UN by the Indian government on 1st January 1948. After several rounds of consultations, deliberations, research and discussions India and Pakistan agreed upon ceasefire and working on a mechanism for peaceful and democratic resolution of Kashmir question. [It is worth mentioning here of the claims of pro independence campaigners that initially the UN Commission for Kashmir was named as ‘United Nations Commission for Jammu and Kashmir’ (UNCJK). However, its name was changed into ‘United Nations Commission for India and Pakistan’ (UNCIP)] at the requests of Pakistani representatives.]
The details of the deliberations were summarised in the first resolution of UN Commission for India and Pakistan passed on 13th August 1948. In addition to agreeing on ceasefire, this resolution asks Pakistan to take all of her civilians and military personnel and non resident Pakistanis out of Kashmir before India was to withdraw a bulk of her armies after which Kashmiris will decide the future of the state through a plebiscite. This never happened. Pakistan claims that India did not withdraw her armies and India argues that withdrawal of her armies was to follow the withdrawal of Pakistan armies that never happened. However, gradually Indian argument changed into the claim that after the accession of Hari Singh followed by the rectification by the Kashmir Assembly headed by the National Conference, Kashmir became integral part of India.
The Kashmiri Perspective
Both of the above discourses dominated the internal Kashmiri political landscape across the division line for some years. A Majority of the people supporting National Conference on one side and Muslim Conference on the other (at least in the Indian occupied Valley and the Pakistani occupied ‘Azad ‘ (free) Kashmir) waited with great optimism for the International community to make Indian and Pakistani rulers to give Kashmiris the right to determine their future. However, after clashes between the aspirations of Kashmiris for independence and of the Indian and Pakistani rulers for accession as early as 1953 when Indian government deposed the head of Kashmiri Government in IOK and Pakistani government did the same in IOK, the optimism began to give way to scepticism and revolt. By late 1960s it was evolved into the language of national liberation personified in one Maqbool Bhatt. In late 1960s Maqbool Bhatt, 29, denounced the UN as a club of the ruling classes whose decisions reflected the class and national interests of the ruling classes of the big and powerful nations of the world. He was born in a village of Kashmir Valley, educated in Peshawar and emerged as the most attractive voice for the younger generation of Kashmiris in Mirpur where anti-Mangla Dam Construction Campaign paved the way for Plebiscite Front which he joined before choosing the path of armed struggle in 1968. While Pakistan imprisoned and tortured Maqbool Bhatt and his associates and India executed him on 11th February 1984, the world remained almost indifferent to this largely peaceful resistance with Ganga Hijacking and Killing of Indian diplomat in Birmingham as few exceptions . By now the politics of resistance however had become a reality that could no longer be ignored on either side of the division line in Kashmir. But this reality was not the one and same across the divide. It was composed of different components some of which were to be contesting and competing with each other. For example Islam has emerged as the defining factor in the resistance against the Indian occupation in IOK whereas the politics of independence in POK is clearly defined by the nationalist and socialistic rhetoric. The situation presents a similar scenario that existed in the united Kashmir in 1940s when the National Conference and Muslim Conference the then resistance forces became also divided as the torch bearer of secularism and Islam respectively. Having said that, one must not overlook the ‘mainstream’ Kashmiri politics on both sides of the division. Although forced to operate within the Indian and Pakistani constitutional framework a significant shift can be noted towards greater autonomy that irritates the extremist religious forces in the Indian and Pakistani nationalist discourse which brand even these autonomy voices as ‘separatists’. The JKPDF’s ‘self governance’ and JKNC’s greater autonomy demands along with that of AJKPML and AJK Muslim Conference’s rhetoric of being ‘Riyasati’ Parties are only few examples.
Generally speaking, the independence politics it has grown stronger in all parts of Kashmir especially in the Valley, AJK and Gilgit Baltistan as well as amongst the diaspora Kashmiris despite constant bullying, harassment, suppression and oppression of the Indian and Pakistani states and the indifference of the international community.
Today, the Kashmiri perspective on Kashmir can be summarised as follow:
1. The state was formed through the Amritsar Treaty that handed over forever in the INDEPENDENT POSSESSION of Maharaja Gulab Singh and his male body heirs.
2. Maharaja Gulab Sing became the sovereign and guarded the state as such
3. Responding to the State for State people Movement, the Maharaja brought about the State Subject legislation in 1920s that defined citizenship of the state separate and away from British India ( later Pakistan and India);
4. Responding to popular politics of 1930s, the Kashmiri monarchy agreed to initiate modern democratic set up by holding multiparty elections for the first (partially) elected legislative assembly through limited franchise in 1934;
5. The leadership of two major and most popular Kashmiri parties of National Conference and Muslim Conference was reached to an agreement for further reforms in the governance in Kashmir by introducing multiparty government to be elected through one person one vote system with Maharaja to be remained as the figure head;
6. States had the legal and constitutional right to remain independent
7. Maharaja of Kashmir decided to remain independent according to the provisions in the British Indian declaration for the princely states;
8. Maharaja asked the Indian and Pakistani governments for a standstill agreement for peace and progress
9. Accession with India was conditional and temporal linked with peace to be restored before people deciding on the future of the state;
10. The case of Kashmir was taken to UN by the Indian government two months after the accession by Maharaja of Kashmir with India;
11. The first resolution by the UN Commission on 13th August 1848 recognised the unfettered right of Kashmiri people (the state subjects) to self-determination including and with the right to independence;
12. The presence of both India and Pakistan in all its civil and military forms is illegal after them failing to fulfil their legal responsibilities of protecting rights of Kashmiri citizens, withdrawal of their forces and have the future of Kashmir determined through a fair and democratic plebiscite ;
13. Under their illegal occupation, both India and Pakistan while hold some form of elections but without the participation of pro independence Kashmiris rendering the democratic looking process undemocratic and in fact colonial like;
14. While there are voices in some parts of Kashmir that disassociate themselves from the Kashmiri identity because they claim that it has become synonymous to the valley or Islam and there are voices within the resistance movement with exclusionist agenda , this situation is not peculiar to Kashmir. Almost all countries of the world with multiple identities (nations-states) face this challenge including India, Pakistan and Britain. Majority of pro-independence Kashmiris accept the diversity argument but they denounce the official discourse of India and Pakistan which rejects the independent Kashmir demands because of the multiple and pluralist nature of the Kashmiri state and society as irrelevant and irrational.
15. The fact that despite feeding the bulk of their hard earned and hard borrowed capital to the war machinery of mass destruction, India and Pakistan have failed to capture Kashmir and aspirations for independence have grown stronger under both armies, shows that Indian and Pakistani occupation in Kashmir is the major cause not only of the poverty, deprivation and under development but also the extremism and hatred in the Indian and Pakistani societies from where it spilled over to Kashmir and to the world through diaspora.
16. Both India and Pakistan are not in Kashmir for the protection of Kashmiris from the ‘other’ but for the resources of Kashmir mainly water but also minerals and forests. The mass migration especially from ‘Azad’ Kashmir to UK, Europe, America, Canada and Middle East has also added the foreign exchange and access to the political and economic markets and power corridors as reasons for not leaving Kashmir.
17. The governments of India and Pakistan are unlikely to give Kashmiris the right to decide their future independently unless there is a pressure from the citizens of India, Pakistan and the wider countries of South Asia and world for resolving Kashmir tangle through a fair and democratic manner.
18. Therefore, in the final argument Kashmir is not an issue of being integral part of any of the occupying countries or that of ‘property ownership’. It is an issue of universally recognised, accepted and acknowledged human and democratic right of over 16 million people across the divided state and Kashmiri diaspora around the world. All people who care for human rights, peace, democracy, freedom, independence, self determination, tolerance, liberty, equality, integration, respect, progress, prosperity and development must support the right of Kashmiri people to self determination without any restrictions whatsoever. In other words Kashmir is for Kashmiris – all of them including the Kashiris of the valley and state subjects of the divided state.
The writer is a Researcher based in the UK.
