Pakistan has the legitimate claim to Kashmir

by Steven Meurrens

 

At the beginning of 2002, Pakistan and India appeared to be on the verge of a nuclear war. This was the latest stage in over fifty years of conflict between the two nations. The greatest issue in their relationship has been the disputed province of Kashmir. The hostilities began in October 1947, when the Hindu ruler of Kashmir signed a treaty giving his Muslim province to India, which is predominantly Hindu. Pakistan's rejection of this agreement would lead to a war with India shortly thereafter. The province would be partitioned between India and Pakistan in 1949, and the established border remains today. Both nations still claim all of Kashmir. The situation has been complicated by the religious differences in the region between Muslims and Hindus. Further exemplifying the problem are the various versions of history that both sides present in their arguments for ownership of Kashmir. When the previous and current situations are analyzed, it is clear that it is Pakistan that has the legitimate claim to Kashmir, as India's claim is based on fraud and violence.

Kashmir is located in the northern part of the Indian Subcontinent, occupying an area of 220,000 km². As per the United Nations cease-fire agreement that partitioned Kashmir on January 1, 1949, India occupies a majority of the disputed region. India has organized its territory as the state of Kashmir and Jammu. The capital is Srinagar. Pakistani controlled Kashmir is referred to as Azad (free) Kashmir. The capital is Muzaffarabad. Historically, the significant districts of Kashmir are the Poonch, Srinagar District, and Mirpur. The current population of the entire region is thirteen million, of which approximately sixty-four percent are Muslim. The demographics have barely changed since the dispute began in 1947. In 1941, of the four million people living in Kashmir, over 3,200,000 practiced Islam. Though a clear majority of the citizens were Muslim, the region was ruled by a Hindu prince.

The Maharaja Hari Singh presided over Kashmir during the end of British imperialism in South Asia. During the British partition of the Indian Subcontinent in 1947, the princely states were supposed to accede to either India or newly created Pakistan. Hari Singh wanted neither, and delayed his decision. Both Jawaharel Nehru, the leader of India, and Mohammed Ali Jinnah, the founder of Pakistan, urged the maharaja to join their respective nation. In early September, a Muslim rebellion seeking unity with Pakistan erupted in the Poonch district. India accused Pakistan of sending Pashtun fighters into the Poonch to sabotage the pending decision of Hari Singh. By mid October, the rebel army was only four kilometres away from capturing Srinagar. It was at this point of desperation, that Hari Singh reportedly signed the Treaty of Accession with India. The Indian army would enter the province the same day, and would be at war with Pakistan within a month. The validity of this treaty would be the basis of both nations' claim to Kashmir.

Historians often disagree with one and other about the interpretation of the dispute in Kashmir. There are three main concepts that are used by supporters of India to justify India's occupation of Kashmir. The first is that because of the Treaty of Accession, India's actions and claim to Kashmir are legal. A.G. Noorani, a lawyer in New Delhi, whose Indian bias has clouded his judgment about the Indian claim, and author of The Kashmir Question, summarized India's long-standing stance regarding the treaty in his book's introduction:

" Kashmir is legally [because of the Treaty] a part of India, Pakistan is therefore an aggressor and must be asked to vacate her aggression; having become a part of the country, Kashmir cannot claim self-determination; her accession is final and irrevocable as there is in law no such thing as a provisional accession."

The appeals India has made to the United Nations all reflect this attitude. As Nehru argued in a complaint issued to the UN in 1948, because India has a document that states Kashmir belongs to India, all Pakistani claims and actions in the region are void and aggressive, as well as demonstrating a blatant disregard to international law and procedure.

In an effort to gain public support from the international community, India has rallied behind two popular slogans. These are: democracy and multi-culturalism. As an article in the January 19th, 2002, edition of the Economist indicated, these have had considerable success in brandishing Pakistan as an evil, rogue state. After all, India promotes itself as a secular democracy. India embraces its minorities. Pakistan, on the other hand, has always been an Islamic State, has been ruled by successive military governments, and tarnished by civil war. The Kashmiri people, India argues, would be better suited in a secular nation that embraces the rule of law. Legality. Democracy. Multi-culturalism. These are the three concepts that form the basis of the Indian claim to Kashmir. The relevance and truth of these ideas are questionable.

Historians supportive of the Pakistani claim believe that the Treaty of Accession is void because of the conditions and historical discrepancies pertaining to its signing. India acted aggressively and irresponsibly in forcing the agreement with a leader that did not represent the majority of his population. The Maharajah was a Hindu prince. During the time of accession, seventy-seven percent of the Kashmiri people were Muslim. Indian historians, on the other hand, have debated even the importance and truth of this fact. Prem Shankar Jha, editor of the Hindustan Times, and author of the book Kashmir: 1947, writes that the figure is exaggerated and misleading because the Muslims of Kashmir "belonged to at least three frequently antagonistic sects, two-thirds sharing a strongly synergetic tradition of Islam that had a good deal in common with the Bhaki tradition in Hinduism." Mushtaqur Rahman, author of the brilliant analytical Divided Kashmir, counters the relevancy of this claim by stating that while the Muslims consisted of different sects, their beliefs separated from them other Muslims no less so than the differences between Kashmiri Hindus and Indian Hindus. Indeed, these Hindus possess their own dialect, dress, and food. In response to questions over why the demographics of Kashmir have changed (Kashmir is now estimated to be 64% Muslim.), he reminds readers that it is estimated that over 4 million Muslims have fled Indian occupied Kashmir since 1947. Despite the exodus, civilians in Indian controlled Kashmir still have great ethnic similarities to Pakistan, as noted by famed historian Richard Reeves, in Passage to Peshawar describing his experience in the region: "When I crossed from Azad Kashmir, in Pakistan, to Kashmir in India - across the disputed northeastern border established after the countries' 1948 war - the people looked the same. They should have, because many of them were cousins of Pakistanis and practiced the same religion." In the end these discrepancies and arguments pertaining to how Islam is divided into many types is merely nitpicking by supporters of India, highlighting facts that have no significance to the larger picture. In a census taken in 1941, of 4,021,698 people living in the entire region of Kashmir, 3,101,247 of them were Muslim. In the turbulent Kashmiri Valley (site of most of the recent violence in Kashmir) 94% ( 1,615, 478 to 1,728,705) of the citizens were Muslim. Under the provisions of the divisions of the Indian Subcontinent, regions that were mostly Muslim were designed to accede with Pakistan. Thus, in the natural course of history, if had India not acted irresponsibly, and the Kashmiris' had a leader that represented their interest, Kashmir would have gone to Pakistan.

The Maharajah Hari Singh never represented the will of his subjects, creating tension between the Hindu rulers and the Muslim population of Kashmir. Muslims in Kashmir detested him, as they were heavily taxed and had grown tired of his insensitivity to their religious concerns. The Dogra rule (the name of the municipal governments) had excluded Muslims from the civil service and the armed services. Islamic religious ceremonies were taxed. Historically, Muslims were banned from organizing politically, which would only be tolerated beginning in the 1930's. In 1931, in response to a sermon that had tones of opposition to the government, the villages of Jandial, Makila, and Dana were ransacked and destroyed by the Dogra army, with their inhabitants burned alive. A legislative assembly, with no real power, was created in January, 1947. It issued one statement that represented the will of the Muslim people: "After carefully considering the position, the conference has arrived at the conclusion that accession of the State to Pakistan is absolutely necessary in view of the geographic, economic, linguistic, cultural and religious conditions"¦It is therefore necessary that the State should accede to Pakistan.

This is one of the rare instances that an elected block of the people of Kashmir had been given the chance to speak. Representing the subjects who elected them, they sought accession with Muslim Pakistan. Prem Nath Bazaz, founder of the Kashmir Socialist Party in 1943, a reliable primary source of history, reiterated that a majority of Kashmiris were against the decision of the Maharajah in his book, The History of The Struggle of Freedom In Kashmir. He writes, "The large majority of the population of the State, almost the entire Muslim community and an appreciable number of non Muslims was totally against the Maharjah declaring accession to India." This statement, and the decision reached by the legislative assembly are important because they dispel any belief that the Kashmiris' religious ties with Pakistan did not necessarily indicate a will to unite. Indeed, the ethnic bond between Kashmir and Pakistan influenced a majority of the people to seek accession with Pakistan. The Hindu Maharajah would not listen, and continued to delay his decision about which nation to join. Still, even though Hari Singh's actions were wrong, they do not compare to the deplorable pressure and tactics applied by India to capture Kashmir.

India relentlessly pressured Hari Singh to accede to India. While Pakistan agreed to sign a standstill agreement that would continue trade, travel, and transportation with Kashmir, India refused until the Maharajah did as they wished. India encouraged neighbouring provinces to pressure Kashmir to accede to India. Nehru said that if Kashmir joined Pakistan the chances of resuming any diplomatic or economic relationship with India would be remote. Pakistan took no such action. While the traditional view has been that Nehru sent his army into Kashmir only after the Treaty of Accession, there is growing evidence that this is not true. Alaistar Lamb, author of a series of books on Kashmir, has discovered evidence based on declassified military papers that India had Patalia gunners at the Sringar airport by October 17 1947, and has scoffed at the Indian apologists who propose that India's invasion of Kashmir was the triumph of improvisation. Instead, he states that India had troops mobilized for an invasion of Kashmir by October 25th This would mean that India's army was in Kashmir before the decision of the Mahrajah. With India's army already in Kashmir it is obvious why the Maharajah would hand his country over to India. Because of the injustice displayed by India, the Treaty of Accession, if it was even signed, is nullified and void.


India claims to represent democracy in the dispute with Pakistan over Kashmir. If upholding democracy was indeed India's motivation in their actions over Kashmir, one has to question why a plebiscite has never been issued. The Kashmiris have always demanded one, and India has always resisted. Even Nehru has conceded that Kashmiris do not want to remain under Indian occupation. When asked about never holding a plebiscite in Kashmir in 1965, Nehru responded, "Kashmir would vote to join Pakistan and we would lose it. No Indian government responsible for agreeing to a plebiscite would survive." This logic is more fitting for describing an autocracy, not a nation claming to represent democracy. As for the issue of whether Pakistan is a theocratic state, it certainly cannot be, as its political power is not held by priests and religious heads claiming to represent a God. Islam may be the only official religion of Pakistan, but that does not warrant the title of a totalitarian theocracy. The historians supporting India have no grounds for saying that India has behaved better because it states itself to be the only democracy.

Apologists for Nehru and the successive governments of India have also made the peculiar claim that if Kashmir were to vote to succeed from India, it would lead to other revolts and demands for independence in other dissatisfied regions of India. Victoria Schofield, author of the comprehensive Kashmir in the Crossfire, has researched and analyzed the response of Kashmiris bewildered that a "secular democracy" would use this argument. Kashmiri independence groups have pointed out that it is the only region in India that has already been granted a plebiscite (that never materialised) in a United Nations Security Council Resolution that was actually approved by India. Even if politicians are worried about the possibility of India disintegrating because of losing Kashmir, this does not warrant the suppression of the Muslims in Kashmir, and the Kashmiris are indeed oppressed. Amnesty International has repeatedly decried atrocities committed against separatists in Kashmir, and they estimate that 34,000 civilians have been killed.

India basing its claim on adhering to diplomatic rule of law and the decision of a nation's leader is made even more laughable because of its actions in Hyderabad and Junadgh. Hyderabad, located in central India, was the opposite of Kashmir. There, a Muslim ruled over a Hindu majority, and did not want to join India. The Indians did not accept the leader's wishes and invaded Hyderabad in September of 1948. In Junadgh, the situation was similar. Nehru forced the ruler of Junadgh to hold a plebiscite after the latter claimed that he could not make the decision because he did not represent his people. That Nehru agreed to the principles of self-determination and ethnicity when it served his interests, and not in Kashmir, illustrates the hypocrisy of the Indian claim to Kashmir. As Mushtaqur Rahman reiterates in his book, it even renders the Indian claim illogical:

"Their arguments were that it made no sense geographically, that a ruler had acceded to a region of different religion then his people. Logically then, India should have supported the Muslims majority of Jammu and Kashmir and let them join Pakistan."
Mr. Bazaz was also mystified by the hypocrisy in India's actions, as he writes:

"Obviously in accordance with the basic principle governing the partition the consideration of the religion professed by people in different parts"¦ the Jammu and Kashmir State, whose population is preponderating (77 percent) Muslim - almost the same as is the ratio of Hindus in Junagad and Hyderabad to the total populations of these States - should legitimately and unconditionally belong to Pakistan and must in fairness go to it."342

What the hypocrisy and determination of India to take Kashmir at the expense of logic and the will of Kashmiris does illustrate is the underlying motivation of India to serve Nehru's interests. Nehru's family heritage originates in Kashmir. This appears to be one of the only two possible reasons India has so forcefully demanded it be given Kashmir. The second cause is that of deep resentment over the creation of Pakistan.

If one were to base India's claim on Kashmir on actual principals that are present in its actions, they would be: pride, resentment, and aggression. The government of India's desperate attempt to validate its hold on Kashmir is merely just India rejecting the concept of Pakistan in general. Nehru and the government of India's rejection of Pakistan is well known. Liaquat Ali Khan, the vice-president of Pakistan during accession, reiterated this in a telegram to Nehru when he wrote, "India never wholeheartedly accepted the partition scheme but her leaders paid lip service to it merely in order to get the British troops out of the country. India is out to destroy the state of Pakistan . Indeed, this attitude would explain why India visibly rejected the mandate of the creation of Pakistan, as well as the common sense of ethnicity in Kashmir. The Indian resentment of the creation of Pakistan is not just a rumour started by Karachi. Even A.G. Noorami, sympathetic to the Indian claim to Kashmir, writes, "We are a secular State and we do not believe in the "two-nation" theory. But is it necessary for that purpose to retain Kashmir in India against the will of her people?" Perhaps most telling of this pride and hatred towards Pakistan is the response given by a representative of the Indian government to peace talks offered by Pakistani President Jinnah, which was, "for the prime minister to come crawling to Jinnah, when India was stronger would be a step which the Indian people would never forgive." With such sentiment, it is little wonder that peace in Kashmir has been hard to achieve.

India continues to use its military superiority over Pakistan to resist negotiating any terms of peace with Kashmir. Unfortunately, as noted by Time correspondent Edward Desmond, the international community shows no signs of challenging India's claims. "No country was willing to risk its entire agenda with New Delhi over the Kashmiri cause, especially when it was clear that New Delhi had no intentions of backing down.

Due to the contradictions and falsifications that India has used to present its argument towards ownership of Kashmir, and its inaction towards holding a plebiscite in Kashmir, it cannot reasonably be argued that India has the more legitimate claim to Kashmir. In reality, India has kept its army in Kashmir to maintain hostile relations with Pakistan because of the formers rejection of the "two-nation" theory that created Pakistan. India cannot claim to represent the interests of the Kashmiri people and their democratic rights because it refuses to let them decide their future. Its relentless pressure on the Maharajah, as well as Hari Singh's inability to properly lead, nullifies the relevance and significance of the Treaty of Accession. That the Indian army landed in Kashmir even before Hari Singh had conceded his nation to India proves it never intended to respect his decision anyways. India has ignored the rules set out in the partition of the sub-continent, dividing the region by ethnicity. Instead, the leaders of India have sought only to use Kashmir to illustrate their superiority in the subcontinent. As long as India continues to act on flawed and aggressive notions, the Kashmir conflict will not be resolved.



Bibliography

1. Alastair, Lamb. Kashmir : A Disputed Legacy. Hertingfordbury: Roxford Books, 1991.

2. Bazaz, Prem Nath. The History of the Struggle for Freedom in Kashmir. New Delhi. Kashmir Publishing Company. 1954.

3. Noorani, Abdul Gafoor Abdul Majeed. The Kashmir Question. Bombay: Manaktalas, 1964.

4. Rahman, Mushtaqur. Divided Kashmir : Old Problems, New Opportunities for India, Pakistan, and the Kashmiri People. Boldour, Colorado: Lynne Rienner Publishers, 1996.

5. Reeves, Richard. Passage to Peshawar : Pakistan: Between the Hindu Kush and the Arabian Sea. New York : Simon and Schuster, 1984.

6. Jha, Prem Shankar. Kashmir 1947 : Rival Versions of History. Bombay: Oxford University Press, 1996.

7. Schofield, Victoria. Kashmir in the Crossfire. New York: I.B. Taurus, 1996

8. "The Standoff at the Roof of the World." The Economist. 19 January, 2002.