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KASHMIR PROBLEM - A BACKGROUNDER : A COMPLEX ISSUE WHICH WE ARE UNABLE TO SOLVE

The Kashmir Conflict arose from the Partition of British India in 1947 into modern India and Pakistan. Both countries subsequently made claims to Kashmir, based on the history and religious affiliations of the Kashmiri people. The princely state of Jammu and Kashmir, which lies strategically in the north-west of the subcontinent bordering Afghanistan and China, was formerly ruled by Maharaja Hari Singh under the paramountcy of British India. In geographical and legal terms, the Maharaja could have joined either of the two new countries. Although urged by the Viceroy, Lord Mountbatten of Burma, to determine the future of his state before the transfer of power took place, Singh demurred. In October 1947, incursions by Pakistan took place leading to a war, as a result of which the state of Jammu and Kashmir remains divided between India and Pakistan.

Administered by

Area

Population

 % Muslim

 % Hindu

India

Kashmir valley

~4 million

95%

4%

 

Jammu

~3 million

30%

66%

 

Ladakh

~0.25 million

46%

Pakistan

Gilgit-Baltistan

~1 million

99%

 

Azad Kashmir

~2.6 million

100%

China

Aksai Chin

Two-thirds of the former princely state of Jammu and Kashmir, comprising Jammu, the Kashmir Valley, and the sparsely populated Buddhist area of Ladakh are controlled by India while one-third is administered by Pakistan. The latter includes a narrow strip of land called Azad Kashmir and the Northern Areas, comprising the Gilgit AgencyBaltistan, and the former kingdoms of Hunza and Nagar. Attempts to resolve the dispute through political discussions have been unsuccessful. In September 1965, war again broke out between Pakistan and India. The United Nations called for another cease-fire, and peace was restored following the Tashkent Declaration in 1966, by which both nations returned to their original positions along the demarcated line. After the 1971 war and the creation of independent Bangladesh under the terms of the 1972 Simla Agreement between Prime Minister Indira Gandhi of India and Zulfiqar Ali Bhutto of Pakistan, it was agreed that neither country would seek to alter the cease-fire line in Kashmir, which was renamed as the Line of Control, "unilaterally, irrespective of mutual differences and legal interpretations".

Numerous violations of the Line of Control have occurred, including incursions by insurgents and Pakistani armed forces at Kargil leading to the Kargil war. There have also been sporadic clashes on the Siachen Glacier, where the Line of Control is not demarcated and both countries maintain forces at altitudes rising to 20,000 ft (6,100 m), with the Indian forces serving at higher altitudes.

Indian view

India has officially stated that it believes that Kashmir to be an integral part of India, though the then Prime Minister of India, Manmohan Singh, stated after the 2010 Kashmir Unrest that his government was willing to grant autonomy to the region within the purview of Indian constitution if there was consensus] on this issue. The Indian viewpoint is succinctly summarised by Ministry of External affairs, Government of India.  India holds that the Instrument of Accession of the State of Jammu and Kashmir to the Union of India, signed by Maharaja Hari Singh (erstwhile ruler of the State) on 25 October 1947 and executed on 27 October 1947  between the ruler of Kashmir and the Governor General of India was a legal act and completely valid in terms of the Government of India Act (1935), Indian Independence Act (1947) as well as under international law and as such was total and irrevocable

  • The Constituent assembly of Jammu and Kashmir had unanimously ratified the Maharaja's Instrument of Accession to India and adopted a constitution for the state that called for a perpetual merger of Jammu and Kashmir with the Union of India. India claims that the constituent assembly was a representative one, and that its views were those of the Kashmiri people at the time
  • United Nations Security Council Resolution 1172 tacitly accepts India's stand regarding all outstanding issues between India and Pakistan and urges the need to resolve the dispute through mutual dialogue without the need for a plebiscite in the framework of UN Charter
  • United Nations Security Council Resolution 47 cannot be implemented since Pakistan failed to withdraw its forces from Kashmir, which was the first step in implementing the resolution. India is also of the view that Resolution 47 is obsolete, since the geography and demographics of the region have permanently altered since it adoption. The resolution was passed by United Nations Security Council under Chapter VI of the United Nations Charter and as such is non-binding with no mandatory enforceability, as opposed to resolutions passed under Chapter VII.
  • India does not accept the two-nation theory that forms the basis of Pakistan's claims and considers that Kashmir, despite being a Muslim-majority state, is in many ways an "integral part" of secular India.
  • The state of Jammu and Kashmir was provided with significant autonomy under Article 370 of the Constitution of India.
  • All differences between India and Pakistan, including Kashmir, need to be settled through bilateral negotiations as agreed to by the two countries under the Simla Agreement signed on 2 July 1972.

Additional Indian viewpoints regarding the broader debate over the Kashmir conflict include –

  • 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 India's sovereignty, unity, and integrity. The Government of India has expressed its willingness to accommodate the legitimate political demands of the people of the state of Kashmir.
  • Insurgency and terrorism in Kashmir is deliberately fuelled by Pakistan to create instability in the region.[162] The Government of India has repeatedly accused Pakistan of waging a proxy war in Kashmir by providing weapons and financial assistance to terrorist groups in the region.
  • Pakistan is trying to raise anti-India sentiment among the people of Kashmir by spreading false propaganda against India. According to the state government of Jammu and Kashmir, Pakistani radio and television channels deliberately spread "hate and venom" against India to alter Kashmiri opinion.
  • India has asked the United Nations not to leave unchallenged or unaddressed the claims of moral, political, and diplomatic support for terrorism, which were clearly in contravention of United Nations Security Council Resolution 1373. This is a Chapter VII resolution that makes it mandatory for member states to not provide active or passive support to terrorist organisations. Specifically, it has pointed out that the Pakistani government continues to support various terrorist organisations, such as Jaish-e-Mohammad and Lashkar-e-Taiba, in direct violation of this resolution.[171]
  • India points out reports by human rights organisations condemning Pakistan for the lack of civic liberties in Pakistan-administered Kashmir. According to India, most regions of Pakistani Kashmir, especially Northern Areas, continue to suffer from lack of political recognition, economic development, and basic fundamental rights.
  • Karan Singh, the son of the last ruler of the princely state of Kashmir and Jammu, has said that the Instrument of Accession signed by his father was the same as signed by other states. He opined that Kashmir was therefore a part of India, and that its special status granted by Article 370 of the Indian Constitution stemmed from the fact that it had its own constitution

PAKISTAN VIEW

Pakistan maintains that Kashmir is the "jugular vein of Pakistan and a currently disputed territory whose final status must be determined by the people of Kashmir. Pakistan's claims to the disputed region are based on the rejection of Indian claims to Kashmir, namely the Instrument of Accession. Pakistan insists that the Maharaja was not a popular leader, and was regarded as a tyrant by most Kashmiris. Pakistan maintains that the Maharaja used brute force to suppress the population

Pakistan claims that Indian forces were in Kashmir before the Instrument of Accession was signed with India, and that therefore Indian troops were in Kashmir in violation of the Standstill Agreement, which was designed to maintain the status quo in Kashmir (although India was not signatory to the Agreement, which was signed between Pakistan and the Hindu ruler of Jammu and Kashmir).

In short, Pakistan holds that –

  • The popular Kashmiri insurgency demonstrates that the Kashmiri people no longer wish to remain within India. Pakistan suggests that this means that Kashmir either wants to be with Pakistan or independent
  • According to the two-nation theory, one of the principles that is cited for the partition that created India and Pakistan, Kashmir should have been with Pakistan, because it has a Muslim majority.
  • India has shown disregard for the resolutions of the UN Security Council and the United Nations Commission in India and Pakistan by failing to hold a plebiscite to determine the future allegiance of the state
  • The reason for India's disregard of the resolutions of the UN Security Council was given by India's Defense Minister, Kirshnan Menon, who said: "Kashmir would vote to join Pakistan and no Indian Government responsible for agreeing to plebiscite would survive.
  • Pakistan was of the view that the Maharaja of Kashmir had no right to call in the Indian Army, because it held that the Maharaja of Kashmir was not a hereditary ruler and was merely a British appointee, after the British defeated Ranjit Singh who ruled the area before the British conquest.
  • Pakistan disputes claims by India with reference to the Simla Agreement that UN resolutions on Kashmir have lost their relevance. It argues that legally and politically, UN Resolutions cannot be superseded without the UN Security Council adopting a resolution to that effect. It also maintains the Simla Agreement emphasised exploring a peaceful bilateral outcome, without excluding the role of UN and other negotiations. This is based on its interpretation of Article 1(i) stating "the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries"
  • The Chenab formula was a compromise proposed in the 1960s, in which the Kashmir valley and other Muslim-dominated areas north of the Chenab river would go to Pakistan, and Jammu and other Hindu-dominated regions would go to India.

Chinese view

China states that Aksai Chin is an integral part of China and does not recognise the inclusion of Aksai Chin as part of the Kashmir region]

  • China did not accept the boundaries of the princely state of Kashmir and Jammu, north of Aksai Chin and the Karakoram as proposed by the British.
  • China settled its border disputes with Pakistan under the 1963 Trans Karakoram Tract with the provision that the settlement was subject to the final solution of the Kashmir dispute.

Recent developments

India continues to assert its sovereignty or rights over the entire region of Kashmir, while Pakistan maintains that it is a disputed territory. Pakistan argues that the status quo cannot be considered as a solution and further insists on a UN-sponsored plebiscite. Unofficially, the Pakistani leadership has indicated that they would be willing to accept alternatives such as a demilitarised Kashmir, if sovereignty of Azad Kashmir was to be extended over the Kashmir valley, or the "Chenab" formula, by which India would retain parts of Kashmir on its side of the Chenab river, and Pakistan the other side—effectively re-partitioning Kashmir on communal lines. The problem with the proposal is that the population of the Pakistan-administered portion of Kashmir is for the most part ethnically, linguistically, and culturally different from the Valley of Kashmir, a part of Indian-administered Kashmir. Partition based on the Chenab formula is opposed by some Kashmiri politicians, although others, including Sajjad Lone, have suggested that the non-Muslim part of Jammu and Kashmir be separated from Kashmir and handed to India. Some political analysts say that the Pakistan state policy shift and mellowing of its aggressive stance may have to do with its total failure in the Kargil War and the subsequent 9/11 attacks. These events put pressure on Pakistan to alter its position on terrorism. Many neutral parties to the dispute have noted that the UN resolution on Kashmir is no longer relevant. The European Union holds the view that the plebiscite is not in Kashmiris' interest The report notes that the UN conditions for such a plebiscite have not been, and can no longer be, met by Pakistan. The Hurriyat Conference observed in 2003 that a "plebiscite [is] no longer an option". Besides the popular factions that support one or other of the parties, there is a third faction which supports independence and withdrawal of both India and Pakistan. These have been the respective stands of the parties for a long while, and there have been no significant changes over the years. As a result, all efforts to solve the conflict have so far proved futile.

In a 2001 report entitled "Pakistan's Role in the Kashmir Insurgency" from the American RAND Corporation, the think tank noted that "the nature of the Kashmir conflict has been transformed from what was originally a secular, locally based struggle (conducted via the Jammu Kashmir Liberation Front – JKLF) to one that is now largely carried out by foreign militants and rationalized in pan-Islamic religious terms." The majority of militant organisations are composed of foreign mercenaries, mostly from the Pakistani Punjab In 2010, with the support of its intelligence agencies, Pakistan again 'boosted' Kashmir militants, and recruitment of mujahideen in the Pakistani state of Punjab has increased.

.

Instrument of Accession

Article 370

  • Article 370 of the Indian constitution is a provision that grants special autonomous status to Jammu and Kashmir. The article is drafted in Part XXI of the Constitution, which relates to Temporary, Transitional and Special Provisions.[399]
  • Article 370 is the only link that connects Jammu and Kashmir to India.
  • To implement a plebiscite in Jammu and Kashmir one has to amend or abolish the article 370, which is very complex procedure. The leaders of Kashmir oppose any such measure Chief Minister of Jammu and Kashmir Mufti Muhammad Sayeed said, "Even Indian Parliament does not have power to scrap Article 370, which grants special status to Jammu and Kashmir under Indian constitution
  • The High Court of Jammu and Kashmir has ruled that the Article 370 cannot be "abrogated, repealed or even amended." It explained that the clause (3) of the Article conferred power to the State's Constituent Assembly to recommend to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, the Article 370 has taken on the features of a "permanent provision" despite being titled a temporary provision in the Constitution.
  • Article 370 has emerged as the biggest obstacle in front of plebiscite because of its complex procedure of amendment and opposition from the leaders of Jammu and Kashmir