Nine days before the 73rd anniversary of Independence of Pakistan, India abrogated Articles 370 and 35A of the Indian Constitution through a Presidential Ordinance, which granted semi-autonomous special status to the region of Jammu and Kashmir (J&K). This was later ratified by both houses of the parliament (the Rajya Sabha and the Lok Sabha) with more than two-third majority. The erstwhile princely state of Jammu and Kashmir comprised of five regions, each with its distinct geography, religion, culture and linguistic diversity. Three of these regions – Jammu, Kashmir and Ladakh – are included in Indian-occupied Kashmir (55%) whereas Azad Kashmir and Gilgit-Baltistan are a part of Pakistan (30%). The eastern region of Aksai Chin is disputed between India and China (the Tibet Autonomous Region) while some areas of the Shaksgam Valley has been ceded to China by Pakistan (15%). The impending announcement was preceded by heavy additional troops’ movements to what was already the most militarized area in the world, followed by curfew, massive arrests, telecommunications blackout and denial of access to even the mainstream Indian politicians.
Kashmir, as an unfinished agenda of Partition, has been a flashpoint in India-Pakistan relations since 1947. At that time hundreds of Indian princely states were offered the choice of joining India, Pakistan or remaining independent. By this provision, Hyderabad and Junagadh with Hindu majority opted for Pakistan whereas Jawaharlal Nehru persuaded the Hindu ruler of Jammu and Kashmir to join India with promises of extensive autonomy and an eventual plebiscite for the Kashmiris to exercise their right to self-determination. Pakistan, on the agreed principle of division of India, rejected the accession of Kashmir to India and the two countries have fought three wars and many skirmishes on this core issue. India took the dispute to UN in 1948 and many UN Resolutions followed accepting Jammu and Kashmir as a disputed territory; Pakistan, India and people of Kashmir as three parties contingent to the dispute and the right of Kashmiris to determine their status through an act of plebiscite. J&K is of immense strategic and political significance for Pakistan. Not only is its continued occupation by India a gross violation of agreed principle of the partition of Indian subcontinent, use of brute force by Indian security forces on innocent Kashmiris is a grave human rights violation. Geographically, many rivers irrigating plains of Pakistan and producing hydroelectricity at Mangla and Mirpur dams originate from Kashmir and are a lifeline for the predominantly agro-based economy of Pakistan.
Why did Bharatiya Janata Party (BJP) decide to revoke the special status of J&K on August 5, 2019 when even in the election manifesto of 2014 it had committed to the abrogation of Article 370 with a caveat that it will “discuss it with all stakeholders”? It could not be implemented earlier as BJP did not have the requisite numbers in both houses of the parliament. In 2019 election manifesto BJP pledged, besides many other, two important promises: abolishing Articles 370 and 35A and constructing Ram Mandir at the Babri Masjid site, both promises having linkages in creating a homogenous Hindu India. The only Muslim majority state of J&K with a special status was a barrier to this agenda. The attacks on Muslims in the name of cow protection since BJP came to power, promotion of ‘Jai Shri Ram’ chant, exclusionary citizenship in the garb of National Register of Citizens which will affect 4 million, mostly Muslims in Assam alone, and the revoking of Article 370 and 35A which would give Hindus the right to settle and buy properties in J&K, are all intrinsically connected.
There are both domestic and external factors that prompted the timings. The dramatic victory in May has given BJP the audacity to make a drastic move before their support begins to wean. Then there is the declining Indian economy (Modi recently downgraded Indian economic growth from 7 to 6.2 %) and joblessness from which attention had to be diverted towards a populist cause. J&K Legislative elections are due in October which implies a BJP majority in the assembly to endorse removal of Article 370, in addition to disarray in Congress ranks and better prospects for by-elections. The external factors determining the timings are: U.S.-China being embroiled in an ongoing trade war, China’s concern in South China Sea, U.S. preoccupation with Iran and North Korea besides the Middle East, likely subdued response by Muslim states and concluding stages of U.S.-Taliban dialogues on Afghanistan. President Trump’s offer of mediation on Kashmir and Prime Minister Imran Khan’s highly successful visit to U.S. have also led to an expeditious revoking. Related to Pakistan; dismal state of economy, IMF loans, FATF review of money laundering for terrorism, ongoing rift between government and the opposition could have influenced the timings.
The Legality of Abrogation
The revoking of the Articles 370 and 35A, especially the process of it is highly questionable. It will be tested in the Indian Supreme Court as many petitions including that of politicians and retired soldiers have been filed. Changing the requirement of concurrence of the “Constituent” Assembly to “Legislative” Assembly and in the absence of the Legislative Assembly, using the governor as the proxy certainly does not fall within legal norms. The only party entitled to revoke Article 370 is the Constituent Assembly of J&K which disbanded in 1957. The Indian Supreme Court later ruled that in dissolving itself, the assembly had rendered the “temporary” special status of Kashmir permanent. Since 1959 Indian courts have ruled at least four times that Article 370 is permanent. Indian Supreme Court’s credibility as an honest legal fraternity is at stake under the watchful eye of the world.
An Introspection of Our Failure to Resolve Kashmir Issue while it had its Special Status
Articles 370 and 35A granting semi-autonomous status to Indian-occupied Kashmir (IOK) existed for more than seven decades. In reality, Pakistan short of giving the right of self- determination to the Kashmiris and its rightful accession to Pakistan, did not endorse the provisions of these articles and accepted them only as an interim arrangement. In this context, Article 35A was more relevant as a guarantee against changing the demography and ethnic ratio of the population. Why then we as a nation failed to take advantage of the non-Unionization of Kashmir? This can be attributed to a host of factors, both internal and external, more in the realm of the former, which are explained briefly in the ensuing paragraphs.
After Independence, Pakistan adopted the British parliamentary system in which Quaid-i-Azam was the first Governor-General and Liaquat Ali Khan was appointed as the first Prime Minister. Before the adoption of presidential system in 1960, seven prime ministers served between 1947 to the imposition of martial law in 1958. The shortest tenure was of I. I. Chundrigar who remained prime minister for mere 55 days. The ping pong with political dispensation continued till the adoption of 1973 Constitution and bestowing all executive authority to the office of the Prime Minister. This short-lived courtship with democracy was followed by two martial laws by General Zia-ul-Haq and General Pervez Musharraf and premierships of Benazir Bhutto and Nawaz Sharif besides many others under dictatorial rulers. An overview of the chequered political history with jockeying for power by individuals and institutions amply reflects the loss of focus on core national issues: underperforming economy, poor governance and a weak foreign policy. Initial years after Independence – especially in the aftermath of 1947-48 Kashmir War – were critical to the resolution of this fresh dispute, under the auspices of the United Nations which had passed many resolutions accepting the rights of Kashmiris through a plebiscite. This period was also critical as guarantor to the right of Kashmiris in the person of Nehru the person at the helm of affairs in India from 1947-64, but it was not to be? During martial laws and political dispensations some disjointed efforts were made without any tangible results. There was no viable, long-term Kashmir policy involving all the stakeholders which could continue through the change of governments and it was dependent on whims and cult of the personalities in power. Kashmir issue was mostly raised for a political mileage and optics than its earnest persuasion with India and at international forums, especially the UN. Following the wars of 1965, 1971, as well as Tashkent and Simla Agreements, the dynamics of Kashmir as an international issue changed to a bilateral issue, wherein most options or concession rested with the State of India.
Pakistan was fortunate to have as its first Foreign Minister Sir Zafarullah Khan, a jurist and diplomat of international stature, with the unique distinction of presiding over both UN General Assembly and International Court of Justice. His contributions to Kashmir and Palestine causes are prodigious, which unfortunately could not bear results due to inapt political leadership and frequent change of prime ministers. The diplomatic efforts, which should have been the mainstay of our Kashmir policy as the UN resolutions provided the best recourse for an amicable resolution of the dispute, were not pursued proactively and according to a well-thought-out plan. All the stakeholders, in particular the leadership of AJ&K, were rarely consulted. There was no separate Kashmir Desk at the Foreign Office and it was assigned to the Indian Desk which had its hands full with the routine issues. No brochures or books in the major languages of world explaining our stated position were issued nor a diplomatic effort undertaken to take onboard major power brokers or even friendly countries. To highlight, there are 22 countries whose official language is Arabic but our Ministry of Foreign Affairs (MoFA), despite stressing close relations with the Muslim countries, never issued a book or brochure on Pakistan or Kashmir. In 2017, we at the Pakistan Embassy in the Kingdom of Jordan, were the first one to launch a book on Kashmir in Arabic with photographs of Indian atrocities. On the other hand Indian External Affairs Ministry in a very professional and subtle way continued with diplomatic efforts to cast Kashmir as its part and an internal affair of India. In almost the last two decades we lost our international relevance by not focusing on trade and commerce, the new norm in determining the inter-state relationship, while India was involved in bolstering trade with all countries of the world with focus on Africa and the Middle East. India’s utilization of soft face of diplomacy by way of Bollywood movies, promotion of culture, cuisine and yoga have also contributed towards a favorable outlook.
The division of opinion of the population of IOK on siding with India or Pakistan has also to some extent been a subduing factor in the resistance movement. Prominent political leaders like Mehbooba Mufti, Farooq Abdullah and now his son Omer Abdullah have been staunch Indian supporters. Mehbooba Mufti was an ally of BJP and Chief Minister of IOK during the first tenure of Modi government. The abrogation of Article 370 of the Constitution has at least brought all political leadership on one page on their opposition of India and sinister objectives of BJP to change the demographic composition of J&K. A large diaspora of Kashmiri origin is settled in Pakistan and in the rest of the world, but there has been scant organized support by them to the cause. Kashmiris living in Western or other metropolis have been found wanting in projecting the cause or in highlighting grave human rights violations in the Valley either at individual or collective levels. Mostly, their response has been reactive to developments inside J&K. As a corollary, Palestinian diaspora has been the most pro-active all over the world in projecting their cause through all mediums and forums. There is a need to rejuvenate and organize this forum.
Pakistan’s kinetic strategy to wean away IOK from Indian clutches also followed many curves in fighting two wars and Kargil Conflict solely on this issue. In 1948 we came close to capturing Srinagar but due to various reasons, including Indians sending their forces in bulk after October 27, 1948 in Kashmir, could not do so. In 1965 a large-scale clandestine operation codenamed Gibraltar was conducted with Azad Kashmir Regular Force to infiltrate J&K, and with the help of the locals in starting a rebellion against Indian occupant forces. In 1987, disputed state elections created a catalyst for the freedom struggle which gained impetus in 90s and came to be known as Kashmir Intifada. This united various separatist groups; the more prominent groups included pro-independence Jammu and Kashmir Liberation Front, radical groups like Hizb-ul-Mujahideen, and Harkat-ul-Ansar etc. The intensity was so severe that it forced more than 200,000 Hindu Pandits living there for centuries to flee the Valley. The martyrdom of a freedom fighter, Burhan Wani in 2016 was a watershed event in the freedom struggle of Kashmir. This uprising ignited two decades earlier is continuing unabated even today despite the use of the most brutal methods of intimidation and killings by Indian security forces. Post-9/11, there has been a noticeable change in the world opinion on violence and there exists a very thin dividing line between a terrorist and a freedom fighter. This factor has been aptly used by India to cast indigenous freedom struggle in IOK as an act of terrorism and influence the outlook of the issue.
In my reckoning, there were three ‘windows of opportunities’ when we came close to resolving the Kashmir issue. First, in October 1947 when following a tribal rebellion in Poonch, Azad forces with tribal Lashkars launched a multi-pronged effort to capture Uri, Jhangar, Rajuara and Naushera in the opening days of the campaign. On October 26, 1947 Azad forces were in the vicinity of Srinagar and Dogra Raja Hari Singh had fled after defeat of his forces and asked for Indian help which was immediately provided by airlifting of troops to Srinagar. Despite Jinnah’s orders, the Commander-in-Chief, General Gracey refused to obey orders to move Pakistani forces to Kashmir. The rest is history! The second occasion was in 1989-90 when Kashmir and Khalistan Movements were at its peak and India was at its weakest economically, politically and diplomatically. This was an ideal opportunity to bargain with India for a mutually acceptable solution from a position of strength but this opportunity also went to waste due to the policy of appeasement to India. The third opportunity was the ‘Four Point’ formula agreed between Indian Premier Manmohan Singh and General Pervez Musharraf at the end of 2007 after a long bout of backchannel diplomacy. It envisaged: First, identify the geographic regions of Kashmir that need resolution, and by implication, Pakistan was to drop Ladakh and India’s Northern areas due to ethnic, political and strategic considerations. Second, demilitarize the identified region(s) and curb all militant aspects of struggle for freedom. Third, introduce self-governance in identified regions. Fourth, have a joint management mechanism with membership comprising Pakistanis, Indians and Kashmiris overseeing self-governance. Indian Prime Minister was to visit Pakistan in July 2008 wherein he was to be taken to his native village in Jhelum and during this visit he was to announce this and declaration of soft borders between parts of Kashmir. In March 2008, Judicial Crisis erupted and the impending visit and with it the hope of resolution of Kashmir dispute evaporated. These opportunities reflect manifestation of both military and negotiated settlement of the Kashmir imbroglio with varying degrees of success.
Realities and the Way Forward
A review of the past and the present leads to the future recourse for resolving the Kashmir dispute which is of vital national interest but before that, it is imperative to summarize certain realities. First, Kashmiris and Pakistan are the only real stakeholders with limited support coming from China, which is mostly related to Ladakh. The intensity and continuity of the homegrown freedom struggle in J&K and political, diplomatic efforts by Pakistan are critical to the cause. Second, in the present geo-strategic environment, inter-state relations are determined more on trade and commerce than any other factor, in which India has excelled while we have lacked. There could at best be a call for a dialogue by third party(s) but direct involvement is highly unlikely. Third, military and clandestine solutions have zero acceptability in the world and could solicit severe, diplomatic, political and monetary embargos. Fourth, if the last seven decades are to be an index, there is no solution in sight in the immediate time frame unless something extraordinary happens. Fifth, India will not stop here, it would try to legitimize revoking of Articles 370 and 35A by holding Legislative Assembly election and with the Hindu majority in Jammu, will be able to achieve a favorable verdict. There is going to be a flood of investments (Reliance Industries Limited’s Chairman has already announced setting up a special task force focused on making investment in J&K), influx of Hindus to change the demographic tilt of Muslims and large-scale purchases of properties. Not only this, Indian extreme rightist leadership could even lay claims to AJ&K and Gilgit-Baltistan, intensify separatist movements, acts of terrorism inside Pakistan and could divert the world’s attention from atrocities in J&K by faking a terrorist attack inside India. Sixth, Pakistan’s preoccupation with internal issues, political disarray, diplomatic failures and non-performing economy does not augur well for its international standing or to negotiate with India from a position of strength. Under this somewhat bleak environment, what should then be our strategy for the future?
Pakistan, as a responsible member in the comity of nations must show restraint in using military instruments or encourage non-state actors’ involvement in J&K. This can be more counterproductive as this is precisely what India wants; to link indigenous freedom struggle with terrorism and cast Pakistan as a rogue state.
Our Kashmir policy needs clarity. Is the end state giving Kashmiris the right to self-determination according to UN resolutions or accession of Kashmir to Pakistan? Both have different undertones and varying action modalities.
As struggle for Kashmir is going to be long, it requires institution building and preparation of the new generation to carry the mantle. There has to be a regular input in syllabi from Primary to Masters level giving the background, legal position and sacrifices by Kashmiris for the cause. In the realm of institution building, Kashmir Committee as representative body of the Parliament needs to be made more effective and involved in projection of Kashmir cause with other parliaments of the world, debating the solutions and advising the political government. A specific Kashmir cell should also be created in the Foreign Office, GHQ and at premier intelligence agencies working in close coordination with the government of AJ&K
Revoking of Articles 370 and 35A also necessitates a re-appraisal of status of AJ&K and Gilgit-Baltistan as the only independent Kashmiri entities, Simla Agreement and Lahore Declaration.
As diplomacy is going to be the mainstay of our Kashmir policy, there is a need to institutionalize the effort. In the past practices, Foreign Office celebrates Kashmir Day at various Missions for which a financial allocation is made. This is mostly attended by staff of the Embassy and representatives of Pakistani community in which President and Prime Minister’s messages are read out. This is a waste of effort and the main reason for the lack of awareness amongst host nations about Kashmir issue. The highlighting of Kashmir issue should be a year round activity involving talks at universities, interactions with executives, legislators, media and intelligentsia. Pakistani community should be closely involved and delineate responsibilities at various stations and levels to project. Publications in local and foreign languages — Arabic and French in particular — on Pakistan and Kashmir shouldt be prepared for a wider publicity. Some quantified system of regular monitoring of the performance of various missions, on not only Kashmir but in promoting trade and commerce and foreign investment to Pakistan by MoFA should be institutionalized. There is also the need for a more proactive diplomacy at Foreign Minister and Secretary level.
The single most important factor which can elevate Pakistan’s international standing and address its vulnerability to dictates by international monetary agencies is putting our economy on the right track. This involves institutional reforms, giving independent stature to the State Bank and Securities & Exchange Commission, widening of tax base and reduction in establishment expenditures. Every Pakistani needs to realize the responsibility and pay due taxes. An economically viable and independent Pakistan can be the best bet to effectively negotiate on Kashmir, solicit world support and be an incentive for the oppressed Kashmiris.
Media plays an important role in molding opinions. India has two Arabic language TV channels in the Middle East while we hardly have an English news channel. Media strategy encompassing all segments including social media need to be evolved for the projection of Pakistan, Kashmir and annulling misperceptions/hostile propaganda about Pakistan. There is also a need to make films about various human tragedies in Kashmir, portraying in a subtle way the Indian atrocities both for international audience and youth of Pakistan. A Kashmir Section should be created in all public and military libraries and authentic books on the issue reprinted for placement.
Similarly, like Pakistan Citizens Portal, a Kashmir Portal should also be created which should invite suggestions from the public, give action plan and apprise them of various ongoing activities. Quiz programs on various private TV channels should also have questions on Kashmir to invoke public awareness. Similarly, various entry level examinations must include questions on Kashmir etc. A special development package should be extended to AJ&K and Gilgit-Baltistan to promote industry, infrastructure, health, education and the overall quality of living. The private sector should also be given tax incentive to invest in these areas. Agha Khan Foundation could also be involved in undertaking various projects in Gilgit-Baltistan.
A review of our past efforts to finish the incomplete agenda of our Independence reflects adoption of all forms and manifestations of kinetic and non-kinetic
modules. The recent revoking of Articles 370 and 35A, that granted special status to IOK, by India could be a reawakening call to pursue this vital national interest. More important than the timeline is the potency and persistency of the resolve and efforts to achieve the end results. China waited for 100 years to take Hong Kong and 442 years to annex Macau, both were only made possible when China became economically and politically viable. We should also make Pakistan economically and politically vibrant as a prelude to achieving the just right of the Kashmiris.
The writer is Pakistan's former Ambassador to the Hashemite Kingdom of Jordan. He has also been Commander Lahore Corps and remained Military Secretary to the President. He has also authored a book, 'Soviet Invasion of Afghanistan' (published 1983). E-mail: [email protected]
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