Distinguished Lectures Distinguished Lectures

Forgotten Kashmir: The Other side of the Line of Control

  • Ambassador (Retd.) D. P. Srivastava

    By: Ambassador (Retd.) D. P. Srivastava
    Venue: Dr. Ram Manohar Lohia National Law University, Lucknow
    Date: April 06, 2022

Dear Friends,

Foreign policy is an attribute of sovereignty. It is most relevant to emerging powers. Small states may not have the capacity to follow an independent policy. Their best defense could lie in neutrality or protection under a defense alliance with big powers. On the other hand, it was said that America only had domestic politics. It was too powerful to care for the rest of the world. For long periods of history, it has remained engrossed in its own affairs. This changed with the Second World War. The US emerged as the pre-eminent power accounting for nearly fifty percent of the world GDP. It played a major role in shaping the post-war order. This rested on the UN and Bretton-Woods system, which included the World Bank and the IMF. The US also created an alliance system. The Soviet Union created Warsaw Pact. The Warsaw pact was dissolved at the end of the Cold War. NATO not only survived but has expanded.

Many of you may have heard the phrase ‘new world order’. After the end of the Cold War and dissolution of USSR, America gained an unilateral advantage for nearly a decade. This also saw the transformation of the EU from a trading community into a political union. China emerged as an economic power. Today, it is a major military power as well.

The United Nations represents both idealism and power politics. The Charter was founded on the principle of sovereign equality of all states. This is expressed in the General Assembly, where each state – big or small has one vote. However, the Security Council represents power realities. Within the Council, there is a two-tier structure with permanent members having permanent tenure. They strengthened their position by giving themselves veto powers.

After India got independence, the Indian foreign policy reflected the idealism of a newborn nation. It was India, not Pakistan, which took the J&K issue to the United Nations Security Council in January 1948. The response of the powers that be has left an imprint on the subsequent policies we pursued. You may have heard of the offer of permanent membership of the United Nations. This is indeed true. It was my privilege to discover the original file while I was Director(UNP) in the Ministry. I have covered it in my article carried by the Times of India on 15 May 2019. Given the time constraint, I will not go into details. I may however mention that one of the considerations Indian leadership of the period had was that Peoples Republic of China (PRC) should gain admission to the UN. The Chinese seat in the UN was occupied by the Republic of China. China displayed no such compunctions. Once it joined the United Nations, it cast its first veto against the admission of Bangladesh to the world body – the country for whose liberation India had made enormous sacrifices.

Jammu & Kashmir

My book Forgotten Kashmir: The Other Side of the Line of Control covers developments in the POK since 1947. It also covers the larger issues relating to J&K, including the plebiscite and the right to self-determination. It is based almost entirely on Pakistani and international sources. This includes writings of actors who shaped the events. History of early years is based on the memoirs of Maj. General Akbar Khan, a serving Pakistani Army officer who led the ‘tribal’ invasion in J&K as well as Sardar Mohammad Ibrahim, who was the first President of POK. It draws upon the writings of Mohamad Yusuf Saraf, a close associate of Muslim Conference Chairman Ghulam Abbas, who rose to become the Chief Justice of the POK Supreme Judicial Court.

For a better understanding of the subject, we need to bear in mind the geography of the area. Out of the territory of the Indian state of J&K illegally occupied by Pakistan, the so-called ‘Azad Kashmir’ accounts for only 15%. The Northern Areas account for nearly 85 % of the territory under Pakistan’s control. This has been separated from POK. It is the strategically most important part of the state since it touches China and Afghanistan. The British drew the Wakhan corridor – a part of Afghanistan, as a 60 km wide buffer zone between the expanding Russian empire and their Indian colonial possession. If the Northern Areas had not been lost to Pakistan, India would have had geographical contiguity with Afghanistan. After the dissolution of the Soviet Union, this area is now close to the Central Asian Republics. The China-Pakistan Economic Corridor enters Pakistan through the Northern Area only.

Invasion

Pakistan maintained in the Security Council that it has not provided any aid or assistance to the tribal raiders, and tried to discourage them. Maj. General Akbar khan who was at the time Colonel in the Weapons Directorate of the Pakistan Army has provided a detailed account of how the invasion was planned and executed. His was a central role. He had prepared the initial plan, and was later chosen by Pakistan leadership to lead the so-called ‘tribal invasion’. In his memoirs ‘Raiders in Kashmir’, he said that his original proposal for organizing an internal revolt in Kashmir was not accepted. Nor did the Pakistan government want a frontal attack on Jammu for fear of inviting Indian retaliation. Instead, what was decided in a meeting chaired by Pakistan’s Prime Minister Liaquat Ali Khan was to organize an invasion by tribal lashkars (militia) from NWFP. Col. Akbar Khan who led the invasion under the pseudonym of ‘General Tariq’, was later appointed Military Advisor to the Prime Minister. His account makes it very clear that this was not an indigenous uprising as later Pakistani accounts tried to suggest.

According to Yusuf Saraf, the formation of the ‘Provisional government’ of ‘Azad Kashmir’ was announced by Sardar Ibrahim based on midnight telephone calls received from Rawalpindi Commissioner Khwaja Rahim and Begum Nasim, the then-wife of Col. Akbar Khan. The episode reveals that it was a command from Pakistan, not the wishes of the people, which lay behind the announcement of ‘government’ formation.

The book brings out that the UN never recognized the so-called ‘Azad Kashmir government.’ Even Pakistan did not recognize its own creation as Pakistan’s Foreign Minister Sir Zafarullah Khan told the UN Commission for India and Pakistan (UNCIP). This may sound intriguing. But this puzzle has a simple answer. Pakistan did not want to give POK an independent status in international law. In its scheme of things, ‘Azadi’ was only a slogan to pave the way for Kashmir’s take-over by Pakistan. Even today, the so-called ‘Azad Jammu and Kashmir Interim Constitution’ makes it very clear that Pakistan will exercise overlord-ship over the territory. It has not only powers over defense, foreign affairs, and currency, but exercises intrusive control on all aspects of the internal governance of the POK. Under the POK ‘Interim Constitution’, no one is allowed to question the ideology of POK’s accession to Pakistan. The right to self-determination has been equated with pre-determination in favor of Pakistan.

Northern Areas

The Northern areas or Gilgit-Baltistan were directly controlled by Pakistan since its inception. Major Brown, who led the revolt in November 1947 against Maharaja’s administration in the Northern Area was a serving British officer. He headed Gilgit Scouts. It is ironic that the representative of the colonial power was leading the independence movement. Major Brown in his memoirs has candidly described his actions as a coup d’etat. He has written that after he took over Gilgit Administration, its control was handed over to the NWFP government, not the so-called ‘Azad Kashmir Government’, which had come into existence by then.

POK High Court’s judgment of 1993 brought to light that Pakistan had separated Northern Areas from POK through the Karachi Agreement of 1949. The agreement was kept secret since it changed the territorial status quo without the plebiscite. The High Court in its judgment described Pakistan’s actions as a violation of the UN Security Council resolutions on J&K.

The Karachi Agreement was supposedly signed by Pakistan’s Minister for Kashmir Affairs and Northern Areas, Gurmani with Sardar Mohammad Ibrahim Khan, President of POK, and Chaudhary Ghulam Abbas, Chairman of the Muslim Conference. The book brings out that in his later life, Sardar Ibrahim Khan claimed that he did not sign the document. This suggests that his signatures were forged. Chaudhary Ghulam Abbas also distanced himself from the act of ceding the territory of so-called ‘Azad Kashmir’ to Pakistan. He claimed that as party president, his role was limited to publicity for the Kashmir ‘cause’. This is how Pakistan has used the Kashmiri leadership - to present a ‘Kashmiri’ face in international fora, while the substance of power remains with Islamabad.

Plebiscite and Sudhan revolt

One of the most intriguing aspects of the Kashmir issue is Pakistan’s refusal to accept the plebiscite when India was prepared to consider it in 1950 and 1953. The UN mediator Owen Dixon mentioned that a single plebiscite in the entire state will leave pockets of minorities on either side of the divide leading to mass migration. He, therefore, suggested a regional plebiscite and narrowed the scope to the Valley. Owen Dixon says in his report to the UN that India was willing to consider it, but Pakistan rejected it on the ground that this was a departure from the principle of a single plebiscite. He adds that Pakistan however was willing to accept partition provided it got the Valley. Owen-Dixon’s account makes clear that Pakistan was willing to set aside the principle of single plebiscite provided it got the Valley without a vote.

In 1953, Sheikh Abdullah was sacked and arrested. Pakistan suggested bilateral talks with India. India agreed to it. In the joint communique, both sides committed to holding a plebiscite. Prime Minister Bogra wrote to Prime Minister Nehru on 1st December 1953 rejecting the plebiscite, which he had agreed to earlier. This was four months before Nehru turned down the plebiscite. By then the idea was already dead.

Why was Pakistan reluctant to risk plebiscite, especially when Nehru agreed to it in Mohammad Ali-Nehru talks of 1953? The date was significant since this was after Sheikh Abdullah’s dismissal. The answer lies in the Sudhan revolt, which necessitated a military operation to quell it. This lasted well into the 50s. In 1955, Muslim Conference gave a Memorandum to Pakistan’s Constituent Assembly complaining of mass arrests, rape of women, unnatural behavior with young men, and firing of mortar guns on civilians by Pakistani troops. Pakistan could hardly risk a plebiscite when it was not sure of the outcome of the vote even in the territory under its control. The Hindustan Times has carried my article Why Pakistan rejected plebiscite in Kashmir on 5th August 2021.

POK Government

Till POK’s ‘interim constitution’ was adopted in 1974, the territory was controlled by Pakistan based on the executive fiats issued by the Ministry of Kashmir Affairs based in Rawalpindi. Under the Basic Democrats system, elections were held in 1964 on the basis of an extremely limited franchise. Chaudhary Ghulam Abbas, President of the Muslim Conference was disqualified from contesting the elections.

1971 War, Simla Agreement, and POK’s ‘Interim Constitution

The book covers the debate on Simla Agreement in Pakistan’s Constituent Assembly in July 1972. In his reply to the debate, President Bhutto made the candid admission that the UN resolutions did not support Pakistan’s position on the J&K issue. He reiterated this in a speech to a Think Tank in Karachi a fortnight later. This was not a one-off statement.

1971 defeat changed Pakistan’s political landscape. Pakistan’s constitution was adopted in 1973. This was followed by the adoption of the ‘Azad Jammu and Kashmir Interim Constitution Act, 1974’. It inaugurated rule by proxy through the Council headed by Pakistan’s prime minister. The Council was vested with the most important legislative powers marginalizing the role of the elected assembly. The elected assembly was left with undefined, residuary powers.

Under POK’s ‘Interim Constitution’, ‘State Subject’ means a person for the time being (Emphasis mine) residing in Azad Jammu and Kashmir or Pakistan (Emphasis mine) who is a State Subject, as defined in the late Government of the State of Jammu and Kashmir Notification No. I-L/84, dated the 20th April 1927 as amended from time to time. This vague definition provides a convenient loophole to allow migration from outside the state to change the demographic composition of the territory. Bhutto had abolished restrictions on outsiders purchasing property in the Northern Areas way back in 1974.

13th amendment of the POK Constitution, 2018

Legislative and executive powers over key issues like water, strategic highways, and taxation are vested in Pakistan marginalizing the role of the elected assemblies. With the passage of the 13th amendment of the POK constitution in 2018, Pakistan directly exercises powers over 32 items within the so-called ‘Azad Jammu and Kashmir’. Legislation by the elected assembly on the remaining 22 items is also subject to Pakistan’s consent.

Gilgit-Baltistan Order 2018

POK got an elected assembly in 1974, though the assembly had no powers. Gilgit-Baltistan had to wait for another three decades before it got an assembly in 2009. The assembly was given limited powers on 61 items under the Gilgit-Baltistan Order of 2009. This list was abolished with the proclamation of the Gilgit-Baltistan order of 2018. The Order resulted in widespread protests and judicial challenges. Gilgit-Baltistan Supreme Appellate Court set aside the G-B Order of 2018. Pakistan's government appealed to Pakistan Supreme Court, which sided with the Pakistan government and squashed the G-B Supreme Appellate Court’s order on procedural grounds. The Presidential proclamation issued in mid-May 2020 has proclaimed the earlier version of G-B Order 2018. Prime Minister Imran Khan’s announcement that his government would give ‘provisional provincial status’ to the territory is only a cosmetic gesture.

Elections

The chapter on ‘Governance of POK: election or Selection’ discusses elections in the territory. The government elected in the 1975 elections after the adoption of the 1974 constitution barely survived two years. After Zia’s coup of 1977, the leaders of the POK were ‘persuaded’ to agree to the dissolution of the elected assembly. Thereafter, Zia dismissed the elected President using article 56 of the POK constitution. The action of Pakistan’s ruler in sacking the POK President once again illustrated that despite having a separate constitution, the territory remains under the absolute control of Pakistan.

There were no elections in POK for eight years between 1977 and 1985. The elections held that year were party-less elections, where political parties were not allowed and candidates fought on an individual basis. Pakistan used JKLF (Jammu & Kashmir Liberation Front) to stir trouble in the Indian state of J&K using the slogan of ‘Azadi’ (independence). JKLF, however, is not allowed to participate in elections in POK. The mandatory condition for participating in elections is the pledge to accept the accession of the State to Pakistan.

Wishes of the people – UK’s position on self-determination


The British enthusiastically supported the demand for Plebiscite in J&K. The concept of the plebiscite is different from the right to self-determination, which was yet to emerge as a norm in international law. The Universal Declaration of Independence adopted in 1948 did not even mention this right. The British representative in his statement on Cyprus in 1957 mentioned that ‘The application of self-determination without any regard to circumstances would be subversive of established government everywhere and could only lead to chaos.’ This was very different from their stand on J&K. The issue is dealt with in detail in the chapter on the ‘Wishes of the People.’

Water Natural resources and Under-development

The chapter on ‘Water, Natural Resources and Underdevelopment’ brings out that POK has not received fair remuneration for water and hydro-power, which is its chief natural resource. It did not receive any return for electricity generated by the Mangla dam for 36 years. When the payment began in 2003, it was denied hydro-power royalty paid to Pakistan’s provinces. The water usage charge paid to the territory is a fraction of the rate of NHP (Net Hydel Profit) or hydro-power royalty. This discrimination is defended on the ground that Article 161 of Pakistan’s constitution limits such payment to Pakistan’s provinces, while POK does not fall in this category. This argument begs the question why a provision could not have been included in Pakistan’s constitution which was adopted in 1973 – six years after Pakistan started receiving electricity from the Mangla dam.

POK and the so-called Gilgit-Baltistan were always controlled by Pakistan. After the 13th amendment of the POK constitution and the Gilgit-Baltistan Order of 2018, Pakistan has assumed direct legislative and executive powers inside the territories. This renders plebiscite irrelevant. POK has neither ‘Azadi’ nor ‘autonomy’. Pakistan brought about these far-reaching changes in the territories illegally occupied by it a year before the deletion of article 370.

Disclaimer:- The opinions/views expressed in the Lecture are author’s own and do not represent the views of the Ministry of External Affairs.