Witnessing history: The kernel of Kashmir

A roundtable meeting was jointly organised by Panos South Asia and Himal Southasian on the subject of sustaining the peace dialogue between India and Pakistan. Specifically, the agenda was to look beyond 'confidence-building measures' and to focus on the eight-point composite dialogue between the two governments. The keynote address at the retreat, held in Bentota, Sri Lanka was presented by legal luminary and columnist A G Noorani. We reproduce below an edited transcript of his address, extemporaneously delivered. While Noorani ranged far and wide on the many subjects that make up the composite dialogue, what is presented here are his views on the all-important matter of Kashmir. The Bentota meeting was the third in a series of India – Pakistan retreats, the first two being on the role of the press in escalating bilateral tensions or ushering peace, and the second on nuclear proliferation in Southasia. A forthcoming meet is planned to discuss the subject of Kashmir itself

'This term, the 'composite dia-logue', is a rather misleading summation of what has been at the kernel of India-Pakistan relations since their birth.

Immediately after partition, it became quite apparent that the basis of the Indo-Pak conflict could be neatly classed into Kashmir or 'K' and other 'non-K' issues. Kashmir on the one hand, and the others, which included evacuee property, division of cash balances, refugee movement and the division of the Punjab rivers. The passage of time dealt with some of the problems, but Kashmir remained standing in all its starkness.

Even though the problem began when the three states of Kashmir, Junagadh and Hyderabad did not accede to one side or the other, everyone knew the issue would come to a head on Kashmir. It was unfortunate that they did not devise ground rules so that the problem of all three states would be settled in one go. On 1 November 1947, less than a week after the ruler of Kashmir had acceeded to India following a raid by the tribals, India did offer Pakistan a formula- if the ruler belonged to one religion and people to another, the matter should be settled by plebiscite. This was rejected by Jinnah. It is, however, historically correct to say in the light of available documents, that even without that raid by tribals, the ruler would have acceded to India. And Sheikh Abdullah was privy to this.

Jawaharlal Nehru unilaterally declared in April 1956 at the Ram Lila Ground in Delhi – "We are prepared to have a partition along the ceasefire line." In fact, the first thing he suggested to the UN Kashmir Commission, upon meeting them, was, "Are you prepared to consider alternatives?" This was because while Nehru was talking of a plebiscite, his heart was not in it. This was somewhere in June/July 1948. At any rate, in 1954-55, Pandit Govind Ballabh Pant said no to plebiscite in a speech. Panditji said then let us have a partition of Kashmir along the ceasefire line.

Privately he had offered this to Liaquat Ali Khan in London in 1948, to Ghulam Mohammed at Delhi in 1955, to Mohammed Ali Bogra at Bandung in the same year, and so on. But the offer was consistently rejected by Pakistan.

To my mind the suggestion was a non-starter, and in any case, progress on Kashmir came to a dead halt. Nehru then went a step further. After having ruled out plebiscite, he also said the Kashmir issue was a bilateral matter. The term 'bilateral' – it is India's word, with Nehru saying that it is a matter to be solved directly between us. And just then Pakistan evolved this formula – either we talk about Kashmir or we do not talk at all. This was Zulfiqar Ali Bhutto's contribution. He had an international outlook, and he borrowed a leaf from Sukarno's book when the latter had challenged Malaysia on Sabah by saying, "Unless you resolve Sabah, we will not talk to you." This was the line Pakistan took. There were direct negotiations under Anglo-American prodding and they presented some formulae. One, which was proposed in April 1963, envisaged partition, but with India ceding something like 3500 square miles to Pakistan, including the northwestern portion of Kashmir Valley. The Valley was to be split up two to one, one-third would go including Wullar Lake and Handwara. Pakistan said nothing doing, with Bhutto reminding India's then Foreign Secretary, "You are a defeated country, you were defeated by China. All we will give you is Kathua."

I need to mention some of these historical details because I find it silly the way we go on talking about trifurcation, which is a Rashtriya Swayamsevak Sangh formula and also a formula of some Jamaat-e-Islami extremists in Kashmir. When the RSS talks of trifurcation, I notice a very self-serving approach on the part of some. You may split Kashmir from Jammu, but Jammu will not be split. Here Farooq Abdullah was right. He said, of course you may split up Jammu and Kashmir, but then all you (India) would get out of the six provinces of Jammu would be two-and-a-half. You will get Jammu, you will get Kathua and you will get two-and-half tehsils of Udhampur because the tehsil of Gul Gulabgarh has a Muslim majority. This is what trifurcation, so dear to the RSS, really means.

Will of the Kasimiri

I must tell you that in the 1964 and 1965 debates, not one country talked about UN resolutions. In fact the Swedish diplomat Gunnar Jarring, in his last report in 1958, said that time had overtaken the UN resolutions. In my opinion, some parts have been overtaken and some parts have not. The mechanism for the return of refugees and other similar issues are obsolete. But the fundamental principles about the will of the Kashmiri people, in my opinion, no lapse of time can overtake. Whether the will of the people has to be registered by a plebiscite, referendum or elections is another matter.

The 1965 war was, of course, primarily to get Kashmir. Even if the goal had been only to get India to talk, it had the opposite effect. Jai Prakash Narayan, foremost among the liberal lobby in India, had made his view very clear, that if the Kashmiri people are against us, why are we holding on? The war forced him to change tack. He said to the Pakistanis, "Supposing you had won the war, would you have held the plebiscite? You chose your forum, the battlefield. You lost, and now we cannot go back to the old understanding." But those who said that the matter became frozen there missed one important point, as everybody does…what about the people of Kashmir? What about their wishes? Nobody talks about that.

There was a very good opportunity for dialogue in 1966, which is when the issue of the composite dialogue came up. MC Chagla gave a draft to Pakistan's foreign minister and Pakistan said no, Kashmir will be the foremost issue. The summit in Tashkent between Ayub Khan and Lal Bahadur Shastri did not resolve anything, Tashkent left it to the parties. By now, the issue was frozen. The matter was deemed bilateral and it remained frozen till 1989. There is absolutely no doubt that the armed insurgency in 1989 was fostered by Pakistan because we have a statement by Jammu Kashmir Liberation Front leader Amanullah Khan that, "After 18 months preparation we decided to attack." And here India goofed badly.

Let me put matters in a historical perspective. The Janata Party and Zia-ul Haq got along like a house on fire. When Mrs Gandhi came back to power in January 1980, true to form, she started talking about war clouds and Zia panicked. He offered her a no-war pact which she rejected, by putting in various conditions that amounted to a rejection. I asked one of the foreign policy makers why we were rejecting it and suggested that it would give the wrong message to the Movement for Restoration of Democracy within Pakistan and also to the Soviet Union. He said the Soviet Union had not cared a tuppence for India when it decided to make friends with Pakistan. Zia then began befriending the Sikhs. That was a low cost, low investment operation and the rewards were very promising.

Just then, Mrs Gandhi decided for her own personal reasons to sack Farooq Abdullah, and he emerged a hero. Let me tell you one thing. To say that Sheikh Abdullah was the only popular leader of the Valley is utter nonsense. There were others also. I remember when I was one of his defence counsels and first went to see him in prison. I met a lawyer who was also a prisoner, Ghulam Mohiudeen Shah. He said, "Come in Noorani Saheb. Once upon a time, I was his prisoner. Now I am his co-prisoner. He has changed. I have not." So even when Sheikh Saheb was all-powerful, there were a large number of people opposed to accession to India. The historical truth is contained in the letter by Mrs Gandhi to Jawaharlal Nehru from Srinagar in May 1948, in which she said except Sheikh Saheb, everybody says we will lose the plebiscite. So this was the position, and Sheikh Saheb was brutal. There was a law called the Enemy Agents Ordinance. People were not put in prison. He would grab them and throw them across the ceasefire line.

Militancy was never absent from Kashmir. Never. It was always there. There was a big crackdown after the 1965 war. Mirwaiz Moulvi Farooq was arrested and tortured. But Pakistanis, in my opinion, are as imperialistic as Indians in their outlook on Kashmir. They had never bothered to find out whether the Valley would rise up in revolt. They said Sheikh Abdullah was behind bars, so things would go on. People did not like to revolt but the internal militancy came to the fore. However, basically the issue has an Indo-Pak format. It is on the agenda of the Security Council as an Indo-Pak question. So this composite thing was inherent in the Kashmir, non-Kashmir discord. No talks were held and the matter remained frozen until the Bangladesh war.

The Shimla Freeze

The Shimla agreement has a strange background to it. After all, the 1971 war was over Bangladesh and not Kashmir. How did Kashmir come in? Suddenly India decided that for durable peace, we must have a settlement of Kashmir. This used to be Zulfiqar Ali Bhutto's stand, and here was India raising it at a time when it had won on the battlefield. At Shimla, the agreement was in two parts. One dealt with the direct consequences of the war. And the other was on the major issues.

There was a commitment in Shimla for a summit conference, while in the interim the representatives of the two countries would meet to discuss the modalities for the establishment of durable peace including the repatriation of prisoners of war and civilian internees, a final settlement of Jammu and Kashmir, and the resumption of diplomatic relations. The issue of diplomatic relations was odd. Obviously there was some tacit agreement, otherwise why would you link up Kashmir with diplomatic relations?

Much later, in 1979, during the time of the Janata Party government Atal Behari Vajpayee had challenged Mrs. Gandhi on Shimla, "You had agreed to another partition in Shimla." Mrs Gandhi denied it, and the Ministry of External Affairs also said, "We have no such record." But I stand by an article I wrote in April 1979 stating that there had, in fact, been an agreement for partition. P N Dhar has now come up with the disclosure that there was an agreement that the ceasefire line would have the characteristics of an international border.

Dhar is a good friend and I told him, "PN, if somebody were to tell you and me that we have the characteristics of men, I am sure you will slap him in the face, won't you?" To say that A has the characteristics of B is to imply that A is not B – just shares the characteristics. This was the barrister – the Berkeley graduate – in Bhutto. He knew what words meant. So some of my Pakistani friends said Bhutto fooled you.

Indeed Bhutto may have fooled us, but Mrs. Gandhi would have become a great stateswoman if she had gone to Islamabad and told Pakistan she would return the Pakistani prisoners of war, mollified Sheikh Mujib on that count by saying she would get him recognition, and told Bhutto that the private agreement of Shimla must now be converted to an agreed minute which would be kept confidential. According to James Durr, the New York Times correspondent, Zulfiqar Ali Bhutto had said "Give me some time."

By 1975, the whole agreement had collapsed. Bhutto raised Kashmir at Beijing, and the Indian charge d'affaires walked out. The understanding that he had agreed to it in a talk with K S Bajpai is, I think, moonshine. I do not accept this version. •He had immediately retracted. I must mention to you diplomatic relations were resumed in 1976. Can you believe it? And by that time, Bhutto had internationalised Kashmir. He used to talk about Kashmir all the time. I think one Pakistani version is that Bhutto rudely said – tell her (Mrs. Gandhi) that there was no such understanding. Anyway, the whole thing fell through because it was all contingent on another summit. So you cannot bind Pakistan there, and in any case the people of Kashmir were not a party.

Sheikh Abdullah was opposed to Shimla. He said you two are nobody to discuss Kashmir in my absence. The Kashmir government was not consulted. In between, from July to December, Bhutto pleaded with Mrs Gandhi to have a second summit. She refused. She was advised by P N Dhar to settle with Sheikh Abdullah first. And she was eager not to put Mujibur Rahman on the wrong footing. Mrs Gandhi was criticized by the Jan Sangh for not being hard enough but never criticized for not being conciliatory enough in the national interest. The result was that the Sheikh Abdullah negotiations fructified only in February 1975.

Immediately after the Shimla accord, militancy erupted and the People's League was formed in jail soon after in 1978. So there has always been an anti-Pak-Indian movement in Kashmir, Sheikh Abdullah or no Sheikh Abdullah.

Maintaining momentum

To return to Zia-ul Haq, he said that if my little investments in Punjab could yield such dividends, why not Kashmir? Here we did some very foolish things. Ravindra Mhatre was abducted and killed and we sent Maqbool Bhatt, who was in Tihar Jail, to the gallows. A time came when his writings were banned in Pakistan. India pressed the British to deport Amanullah Khan and where else could he have been deported? Not to Iceland but to Pakistan. There he was in the UK under the watchful eyes of MI 5 and Scotland Yard, and he landed up in the lap of Zia, who picked him up like a baby.

Amanullah Khan is on record saying, "After 18 months preparation we struck on 31st July 1988." That was the bomb at the Central Telegraph Office in Srinagar. Even Pakistan was taken aback by the fury of the unfolding events, because they had thought things would take some time to foment. Kashmir flared up and the Rubaiya Sayeed kidnapping gave another boost to it. This is when Pakistan got fired up. In February 1990, Benazir Bhutto and her colleagues in the Inter Services Intelligence decided to float the Hizbul Mujahideen. Nobody had heard of this body until even a couple of years earlier. Because they dreaded the JKLF and with Amanullah Khan being a most quarrelsome man, they decided on the Hizbul Mujahideen.

An internecine war broke out between the two. Pakistan did not want independence for Kashmir. Amanullah Khan used to tell them, "Look if you have a pro-secessionist body it becomes a territorial dispute. If you have a liberation body it is liberation movement like the PLO." Nothing doing. If a Muslim majority area could be independent, why not Baluchistan, why not Sindh? Anyway, that was the logic. At this time, after the whole issue had erupted for the first time in mid-1992, Mian Nawaz Sharif wrote a letter to P V Narasimha Rao, invoking Paragraph Six of the Shimla agreement on Kashmir. Under Para Six, both governments agreed that they would meet at a mutually convenient time so that there would be a commitment for a summit conference. And now Sahibzada Yaqub is on record saying in the Pakistan Assembly, I think, that to date neither side has invoked the Shimla Agreement.

Here let me tell you an aside. Under the Indian Constitution, Kashmir remains a live dispute because there is a provision, Article 245, which says that to enforce an international agreement, Parliament can make a law and override even matters of state autonomy. But as applied to Kashmir there is a proviso, providing that no final agreement on Kashmir shall be made without the consent of the government of Jammu and Kashmir. The reason is very simple. In 1949, they were committed to UN resolutions and the Constitution of India was drafted in 1949. Politics moved ahead and the Constitution has remained the same. And there are any number of assurances on record at that time that this will not foreclose a plebiscite. Anyway, political reality is one thing and the law is another. By the time this issue crystallized way back in 1992, Narasimha Rao took the stand that we will talk about Kashmir only if cross-border terrorism stops because the Shimla Agreement is one composite whole. Pakistan felt that it is the only lever they have. If inspite of insurgency at this level, you do not talk about Kashmir, when the insurgency collapses what leverage would you have?

It is no use saying when the masses come out in Kashmir, that this hartal is a forced thing. It may be somewhere. But you cannot force thousands to throng funeral processions for slain militants. You cannot force women to go to the windows to weep. And here, there is a complete barrier not only between India and Pakistan on this discourse, but between Kashmir and the rest of India.

The correspondents do not report some of the facts and neither do the correspondents in Pakistan. You have to read the Kashmiri press in English and here I must pay a tribute to my friend's paper The Kashmir Times. He reports very candidly and he, like me, is opposed to Kashmir's secession I may mention.

The Pakistanis, I must tell you, have a fear complex even in the best of their diplomats: "Bhai kya hoga agar aap solve karenge…." (What will happen if you resolve these things?). If even without a Kashmir solution, we get along fine, then they have this fear that we will feel no need to resolve Kashmir.

The composite dialogue will go on, but there is one major element this time that was never there before in our history. Such a remarkable groundswell of public opinion in favour of India-Pakistan détente was never there earlier. A very good friend reminded me before I came to this meeting in Bentota, "Noorani, you forget one thing. This groundswell will eventually influence governments, so keep up-this momentum."

The worst mistake Pakistan could make is to say since there is no momentum, let us not talk. No, I suggest Pakistan should persist and I will tell those people who believe in progress on the Indian side that they should persuade the government to carry on talking. We must keep up the momentum. What we need to do is to eliminate the two extremes – plebiscite and making permanent, the Line of Control. I have this formula which I call the Red Fort, Lal Chowk and Mochi Gate formula. A settlement must be one which the Prime Minister of India can sell to the people from Red Fort so that he can persuade Parliament, the leader of Pakistan from Mochi Gate in Lahore and the Chief Minister of Kashmir from Lal Chowk in Srinagar.

Loading content, please wait...
Himal Southasian