Public Diplomacy Public Diplomacy

The Jammu and Kashmir Issue

April 01, 2003

Recent events have once again generated some curiosity and interest in the issue of Jammu & Kashmir. Basic facts pertaining to this issue are well established. However, there has been a concerted dis-information campaign that presents a distorted historical account of the developments that led to the irrevocable accession of the state of Jammu & Kashmir to India; the subsequent wars inflicted by Pakistan on India and the current situation in the once tranquil and beautiful Kashmir Valley. The involvement of Pakistan in fomenting insurgency and terrorism in the border states of India, especially Jammu & Kashmir, has been well documented and accepted by all impartial observers. While the current violence and disturbances instigated and abetted by Pakistan in the Kashmir Valley are there for all to see, the historical perspective needs to be put in the correct, factual light. The following pages give the factual background of the issue of Jammu & Kashmir.

THE JAMMU AND KASHMIR ISSUE

Accession to India

  • The Accession of the state of Jammu and Kashmir to India, signed by the Maharaja (erstwhile ruler of the State) on 26th October, 1947, was completely valid in terms of the Government of India Act (1935), Indian Independence Act (1947) and international law and was total and irrevocable. The Accession was also supported by the largest political party in the state, the National Conference. In the Indian Independence Act, there was no provision for any conditional accession. The Instrument of Accession executed by the Maharaja was the same as the ones executed by over 500 princely states in India. There has been no complication in any of the other cases. There would have been none in this case either, except for Pakistan's action in sending in tribal invaders first (in October 1947) and its own regular troops later (May 1948).
  • Lord Mountbatten's acceptance of the Instrument of Accession was unconditional. He said: "I do hereby accept this Instrument of Accession". The Instrument of Accession was complete with the offer and acceptance.
  • There can, therefore, be no question of negotiating on the question of accession of the State of Jammu & Kashmir to India.

    Reference to UN
  • India made a reference to the United Nations on 1st January 1948 under Article 35 of the Charter, which permits any member state to bring any situation, whose continuance is likely to endanger international peace and security, to the attention of the Security Council. The intention behind this reference was to prevent a war between the two newly independent countries, which would have become increasingly likely if the tribal invaders assisted first indirectly and then actively by the Pakistan army had persisted with their actions against India in Kashmir. The Government of India requested the Security Council "to put an end immediately to the giving of such assistance which was an act of aggression against India”.
  • Pakistan consistently misled the world regarding its involvement in Kashmir: (a) It claimed initially in 1947 that it was not in any way assisting the tribal invaders and was only not actively opposing their passage out of fear that they may turn against the local Pakistani population. It was, however, clearly established that these invaders were being looked after in Pakistan territory, fed, clothed, armed and otherwise equipped and transported to J&K with the help, direct and indirect, of Pakistani officials, both military & civil. The first Governor General of Pakistan, Mohammad Ali Jinnah claimed in a meeting with the then Governor General of India Lord Mountbatten that he was in a position "to call the whole thing off" subject to some of his demands being met. (b) Pakistan later claimed that its own forces were not involved directly in operations in Kashmir. But the UN Commission that visited India in July 1948 found Pakistani forces operating in Pakistan occupied Kashmir. The UNCIP Resolution of August 1948 documented the Pakistani aggression when it stated: "The presence of troops of Pakistan in the territory of the state of Jammu and Kashmir constitute a material change in the situation since it was represented by the Government of Pakistan before the Security Council”. The UN sponsored mediator, Owen Dixon, was also constrained to record in his report of 15.9.1950 that "I was prepared to adopt the view that when the frontier of the State of J&K was crossed, on I believe 20 October 1947, by hostile elements, it was contrary to international law, and that when, in May 1948 as I believe, units of the regular Pakistan forces moved into the territory of the state that too was inconsistent with international law".

    Non-implementation of UN Resolutions by Pakistan
  • Despite India's completely legal and valid position on Jammu & Kashmir, in order to find a solution to the situation created by Pakistan's aggression, India had accepted the option of holding a plebiscite in J&K. It had, however, been made clear by the Indian leaders that holding of such a plebiscite would be conditional upon Pakistan fulfilling Parts (I) & (II) of the UNCIP resolutions of 13 August, 1948, which inter alia, required that all forces regular and irregular under the control of both sides shall cease fire; Pakistan would withdraw its troops, it would endeavour to secure withdrawal of tribesmen and Pak nationals and India will withdraw bulk of its forces once the UNCIP confirms that the tribesmen and Pak nationals have withdrawn and Pak troops are being withdrawn. India was also to ensure that the state government takes various measures to preserve peace, law and order. Indian acceptance of these UNCIP resolutions was also subject to several conditions and assurances given by UNCIP including that Pakistan would be excluded from all affairs of Jammu & Kashmir, "Azad J & K Government" would not be recognised, sovereignty of J & K government over the entire territory of the state shall not be brought into question, territory occupied by Pakistan shall not be consolidated, and Pakistani troops would be withdrawn completely. Pakistan never fulfilled these assurances.

    Preconditions for Plebiscite Never Fulfilled by Pakistan
  • The Government of Pakistan wrecked any possibility of plebiscite being conducted by not implementing part II of the resolution, perhaps because it was fully aware of what the result of such an exercise would be. The Pakistani troops, which were to withdraw from the state, did not do so. As a result normal conditions under which a plebiscite could be held were never created.
  • India had accepted these resolutions, subject to assurances, (mentioned in para 6) and in the hope of having the matter resolved quickly. Pakistan, however, wrecked the implementation of the resolutions at that time by not fulfilling the preconditions. As V.K. Menon stated in the Security Council (763 Meeting, 23 January, 1957): "if an offer is made and it is not accepted at the time it is made, it cannot be held for generations over the heads of those who made it". With Pakistan's intransigence, and passage of time, the offer lapsed and was overtaken by events. In fact, the representative of India (M.C. Chagla) had stated in the Security Council as far back as 1964 (1088 meeting, 5 February 1964): "I wish to make it clear on behalf of my Government that under no circumstances can we agree to the holding of a plebiscite in Kashmir".
  • The then Prime Minister of India, had in a statement in New York, stated on March 31, 1966 that: "any plebiscite today would by definition amount to questioning the integrity of India. It would raise the issue of secession - an issue on which even the United States fought a civil war not so very long ago. We cannot and will not tolerate a second partition of India on religious grounds. It would destroy the very basis of the Indian State." Today, thirty-six years later, the Pakistani position is even more untenable.

    Solution Proposed by Resolutions: Time and Context Specific
  • Since 1957 there have been no UN resolutions on the substantive aspects of the Jammu and Kashmir issue. Time and circumstances have not stood still. More than four and a half decades have lapsed since the original proposals were made as a possible solution. They can no longer be considered valid. In fact, in his report (dated 29th April, 1957), the UN Representative, who was then President of the Security Council, Gunnar Jarring, after completing his mission to India and Pakistan in 1957, took note of larger realities of the sub-continent including in Jammu and Kashmir and stated: "The Council will, furthermore, be aware of the fact that the implementation of international agreements of an ad hoc character, which has not been achieved fairly speedily, may become progressively difficult because the situation with which they were to cope has tended to change".
  • Dr. Frank Graham, the UNCIP representative stated in March 1958: "…the execution of the provisions of the resolution of 1948 might create more serious difficulties than were foreseen at the time the parties agreed to that. Whether the UN representative would be able to reconstitute the status quo which it had obtained ten years ago would seem to be doubtful….”.
  • Over fifty years after Partition, the ground situation in the state to which the resolutions referred to has considerably changed. Pakistan unilaterally ceded a part of the state to China in 1963. There has been a demographic change on the Pakistani side with generations of non-Kashmiris allowed to take residence in the parts of J&K occupied by Pakistan. If the resolutions had begun to lose relevance in 1957, they have far less relevance now.
  • The above position is increasingly being acknowledged by the world today. Highlighting the fact that the UNCIP resolutions did not come under Chapter VII, and were therefore not self enforcing, the UN Secretary General stated at a press conference in Islamabad in March 2001, that "the two parties discussing these issues and finding a peaceful way out, is the route I recommend”.
  • It is now widely acknowledged that bilateral dialogue, in accordance with the Simla Agreement, reiterated in the Lahore Declaration, is the only way to address all bilateral issues between India and Pakistan, including the issue of J&K. UK’s Secretary of State for Foreign and Commonwealth Affairs, stated in the British Parliament on 10th June 2002, that "if United Nations resolutions could have solved the matter, it would have been solved more than 50 years ago”. Speaking for the British Government, he said, "we think that there is not a huge amount of point in getting in a historiographical exercise about which position is correct. We have to deal with the here and now”, adding that a solution to this issue could be found only "by looking forward and by a direct dialogue between those two sovereign nations, India and Pakistan”.

    Choice Made by the People of J&K and Elections in Kashmir
  • The people of Jammu and Kashmir could not wait indefinitely to decide their future. In any case the UN resolutions did not recognise or grant any role to Pakistan in the conduct of the plebiscite. "If Pakistan, therefore, has no part in the plebiscite, it really became a domestic matter for India". (V.K. Krishna Menon, UNSC, 800th meeting, 11 November, 1957). India waited several years for Pakistan to fulfil the preconditions. When that did not happen, the people of Jammu and Kashmir then convened a Constituent Assembly in 1951, which once again reaffirmed the Accession of the State to India in 1956 and finalised the Constitution for the State. The Jammu and Kashmir Constitution reaffirms that "the State is and shall be an integral part of the Union of India."
  • The people, therefore, were consulted. "We did not consult them privately; we did not consult them by selecting the people who were to be consulted. We consulted them by a normal process of democratic election - not even for a Parliament which we established, or the existing Government of Kashmir established, but for a Constituent Assembly". (V.K. Krishna Menon, UNSC, 800 Meeting, 11 November, 1957). In several subsequent local, State and national elections the people of Jammu and Kashmir have repeatedly exercised their democratic choice.

    India Pakistan Discussions on J&K
  • India has always been willing to discuss all issues, including the issue of Jammu & Kashmir, with Pakistan. In fact, in the decades of the ‘50s and ‘60s, several rounds of bilateral discussions took place between India and Pakistan over 1950-51, 1953-54, 1956-57 and 1962-63, to resolve the differences over Kashmir. J&K is also one of the eight subjects identified for dialogue under the Composite Dialogue set up at India's initiative in 1998. A perusal of the records of these meetings makes it clear that they failed in their endeavour only because of Pakistan's intransigent, unrealistic, and on occasions, unifocal approach, which did not take into account either the moral and juridical aspects of the issue or the existing realities.
  • As in the UNSC, during these bilateral discussions, Pakistan has sought parity with India in terms of locus standi in Kashmir. This is untenable since the erstwhile ruler of J&K had duly acceded to India, the largest popular party had endorsed the Accession, and the people had subsequently ratified the earlier decisions. Pakistan, as the aggressor could not have parity with India, with which the accession of Jammu and Kashmir was complete and final.

    1965 War: Its Implications
  • Pakistan tried to impose a military solution on J&K yet again in 1965, by instigating a war against India. The people of J&K resisted this new invasion. Pakistan's failure to impose this military solution and the efforts of the people of J&K to thwart the aims and designs of the Pakistani invaders are well documented.
  • By imposing a war, Pakistan negated the very reason for which a reference had been made to the UN in 1948. All the arrangements that were arrived at with Pakistan through the instrumentality of the Security Council were based on the integrity and inviolability of the cease-fire line established after the 1947-48 skirmishes. By violating this line in 1965, Pakistan rendered obsolete and dead the resolutions of 1948 and 1949, in the context of which the Cease-Fire Line had been established through the Karachi Agreement of 1949.

    Simla Agreement - Its Implications
  • Pakistan imposed yet another war on India in 1971. After this conflict, bilateral talks were held in June-July 1972 and the 'Simla Agreement' signed on 2 July 1972. In terms of this Agreement, which was duly ratified by the two Governments in 1972 itself, the two countries undertook to resolve all differences bilaterally and peacefully. Pakistan, through its commitments enshrined in this Agreement, accepted the need to shift the J&K issue from the UN to the bilateral plane.
  • India’s stand has been clearly enunciated. Jammu and Kashmir is an integral part of India. While India is prepared to resolve all differences with Pakistan through bilateral talks as envisaged in the Simla Agreement, there can be no compromise on India’s unity and sovereignty. The issue that remains to be resolved is the vacation by Pakistan of territory illegally occupied by it.
  • For meaningful bilateral negotiations, Pakistan must create the right climate by stopping its support to terrorism. There must be tangible and credible evidence of this on the ground. The Simla Agreement reiterated in the Lahore Declaration expressly forbids hostile propaganda, interference in internal Affairs and encouragement of any acts detrimental to maintenance of peaceful and harmonious relations. It also enjoins respect for each other’s territorial integrity and sovereignty. Pakistan is violating all these provisions.

    The Lahore visit of the Prime Minister of India
  • Prime Minister A. B. Vajpayee took a historic initiative and visited Lahore from February 20-21, 1999. The visit was aimed at conveying India’s deep desire to establish peaceful, co-operative and friendly ties with Pakistan. Prime Minister Vajpayee proclaimed from the Minar-e-Pakistan that a stable, secure and prosperous Pakistan was in India’s interest. The Lahore Declaration, which committed the two countries to build trust and confidence and develop mutually beneficial co-operation to resolve outstanding issues including J&K through bilateral negotiations, provided a blue print for India-Pakistan relations into the 21st Century.

    Kargil
  • However, the ink had barely dried on the Lahore Declaration that the Pakistani Army manifested its compulsive hostility towards India by launching a military operation in May 1999 across LoC in an attempt to occupy dominating heights along a 140 Km long stretch of Srinagar-Leh Highway. Its aim was to create a situation by which Pakistan would dominate the strategically important Kargil heights. India’s firm response forced Pakistani troops to retreat to their side of LoC. India’s policy of maintaining the sanctity of the LoC and the tremendous restraint shown by India in its firm action against the intruders without crossing the LoC found wide international support and endorsement.

    Agra Summit
  • Notwithstanding, the continued sponsorship of cross border terrorism, on May 23, 2001 India again took the initiative to establish a high level political dialogue with Pakistan by inviting General Musharraf to visit India. The Pakistani President General Musharraf visited India from July 14-16, 2001 and had talks with Prime Minister Vajpayee in Agra. However, during the Summit, Pakistan demonstrated a unifocal approach, fixated entirely on one question and sought to make any improvement in relations conditional on prior resolution of the Kashmir issue. Pakistan was also reluctant to address India’s concerns relating to cross border terrorism. The hopes of forward movement in bilateral relations thus remained largely unattained.
    Pakistan’s Interference and Support to Terrorism
  • The present situation in Kashmir has been created by Pakistan’s support to terrorism. This support to cross border terrorism is not only an attempt to unilaterally alter the status quo on the ground but also to undermine India’s secular fabric.
  • Pakistan’s support to cross border terrorism against India is now openly acknowledged by the international community. The Secretary of State for Foreign and Commonwealth Affairs of the UK Government stated in the British Parliament on 10th June 2002, "A number of terrorist organisations-including Lashkar-e-Toiba, Jaish-e-Mohammed and Harkat-ul-Mujahideen, each of which I proscribed when I was Home Secretary-have been at the forefront of violent activity in the region. India has long charged that such terrorism has had the covert support of successive Pakistani Governments and, in particular, of the main intelligence agency in Pakistan, the Inter-Service Intelligence Directorate-ISID. Her Majesty’s Government accept that there is a clear link between the ISID and those groups”.
  • US Secretary of State, Colin Powell stated on 10th June 2002, "Two weeks ago, we got assurances from President Musharraf that he would cease infiltration activity across the line of control… And then Deputy Secretary Armitage over this past week end got further assurances that cessation of activity would be visible and would be permanent and would be followed by other activities that had to do with the dismantling of the camps that led to the capacity to conduct these kinds of operation”.
  • The section on Pakistan in the Annual Report on Patterns of Global Terrorism 2000 stated, "Pakistan’s military government, headed by Gen. Pervez Musharraf, continued previous Pakistani Government support of the Kashmir insurgency, and Kashmiri militant groups continued to operate in Pakistan, raising funds and recruiting new cadre”. The report further said that HUM, a State Department designated Foreign Terrorist Organisation, continued to be "active in Pakistan without discouragement by the Government of Pakistan”.
  • Through his January 12 and May 27 addresses President Musharraf made two promises. Firstly, that Pakistan will not allow its territory to be used to promote terrorism anywhere in the world. Secondly, that no organisation will be allowed to indulge in terrorism in the name of Kashmir.

    Non-Applicability of ‘Self-determination’ to Integral Parts of States
  • Under the UN Charter, the principles of self-determination are meant to apply to colonial territories and not to integral parts of countries. Pakistan’s harping on "self-determination” today, against the principles advocated by the founders of Pakistan, are only a cover for territorial ambitions. The principles being espoused by Pakistan pose severe dangers to several countries in the world where multi-ethnic and multi-religious societies co-exist.

    Kashmir Developments – An Internal Matter for India
  • In a diverse country like India, disaffection and discontent are not uncommon. Indian democracy has the necessary resilience to accommodate genuine grievances within the framework of our sovereignty, unity and integrity. Government of India has expressed its willingness to accommodate the legitimate political demands of the people of the state of J&K. However, Pakistan sponsored terrorists have terrorised the population and hindered political dialogue by intimidating or silencing voices of moderation that wish to engage in dialogue. The human rights of the people of J&K have been systematically violated by such terror tactics and the kidnappings and killings of innocent people by terrorists.
  • Jammu & Kashmir is an integral part of India. There can be no compromise on India’s unity and integrity.


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