“Kashmir is an integral part of India, constitutionally, legally and morally something that is non-negotiable.” Ram Jethmalani, Outlook Magazine, October 8, 2016.
“Let me state unequivocally that Jammu and Kashmir is an integral part of India and will always remain so.’ Sushma Swaraj September 26, 2016
The fallacy advocated by the most celebrated Indian jurist and the Indian foreign minister deserves some clarification.
The people of Jammu & Kashmir who number more than 129 other existing independent nations individually and have a defined historical identity, are at present engaged in a mass struggle to win freedom and release from the foreign occupation of their land. This struggle is motivated by no bigotry or ethnic prejudice; its aim is nothing but the exercise of the right of self-determination explicitly agreed by both India and Pakistan.
To the horrors of the repression from which they suffer are added two other circumstances, each cruelly adverse. One is the apathy of the world outside, including the United States that otherwise are justly proud of their championship of democracy and human rights. The second is the fog of myths and evasive arguments, like Kashmir being an integral part of India. It is my modest attempt to help mitigate these two circumstances. My appeal is directed neither to the religious or ideological sympathies of Indian Public Square nor to their leanings towards any particular political party but solely to their conscience and human concern.
To begin with, it is a historical fact that when Britain was liquidating its empire in the subcontinent, the tripartite agreement of Britain, the National Congress and the Muslim League partitioned British India into two independent countries: India & Pakistan. As this settlement also meant the end of British paramountcy over the autonomous principalities called States, these were supposed to merge with one of the two countries in accordance with the wishes of the people and the principle of partition. Kashmir was a predominantly Muslim?majority State; besides, it was far more contiguous with Pakistan than with India. It was therefore, expected to accede to Pakistan.
Faced with the insurgency of his people, the Maharajah fled the capital Srinagar, on 25 October 1947 and arranged that India send its army to help him crush the rebellion. India, coveting the territory, set one condition on its armed intervention, that the Maharajah must sign an Instrument of Accession to India. He agreed but India did not wait for his signature to fly its troops into the State.
Between October and December of 1947, the Azad Kashmir forces successfully resisted India's armed intervention and liberated one?third of the State. Realizing it could not quell the resistance, India brought the issue to the United Nations in January 1948.
The idea that the dispute over the status of Jammu and Kashmir can be settled only in accordance with the will of the people, which can be ascertained through the democratic method of a free and impartial plebiscite, was the common ground taken by both Pakistan, and India. It was supported without any dissent by the United Nations Security Council. There was much in these submissions that was controversial, but the proposal of a plebiscite was not. This is clear from the statement made on January 15, 1948 by Indian delegate, Gopalasawami Ayyangar, at Security Council,"… Whether she [Kashmir] should withdraw from her accession to India, and either accede to India or remain independent, with a right to claim admission as a member of the UN – all this we have recognised to be matter for unfettered decision by the people of Kashmir after normal life is restored there.” In the first place, the commonsense appeal and justice of the idea presented by Mr. Ayyangar is undeniable. We also believe that there is no way the dispute can be settled once and for all except in harmony with the people's will, and there is no way the people's will can be ascertained except through an impartial vote or a referendum.
The United Nations Commission for India and Pakistan (UNCIP) worked out the concrete terms of settlement in close and continuous consultations with both countries. These were crystallized in two resolutions adopted on 13 August 1948 and 5 January 1949. As both governments formally signified their acceptance of the Commission's proposals, these constituted an international agreement as binding as a treaty. The resolutions became a matter of controversy only after India realized that she could not win the people's vote.
India's occupation of Kashmir has been left undisturbed by the international community, even though its validity has never been accepted. At no stage, however, have the people of Kashmir shown themselves to be reconciled to it. Inspired and encouraged by the emergence from limbo of the United Nations as a central peace?making agency, the people of Kashmir intensified their struggle against the unwanted and tyrannical Indian occupation. Their uprising entered into its current phase in July 1989. The scale of popular backing for it can be judged from the established fact that, on many occasions since 1990 until September 2016, virtually the entire population of Srinagar came out on the streets in an unparalleled demonstration of protest against the oppressive status quo. The further fact that they presented petitions at the office of the United Nations Military Observers Group (UNMOGIP) shows the essentially peaceful nature of the aims of the uprising and its trust in justice under international law. India has tried to portray the uprising as the work of terrorists or fanatics. Terrorists do not compose an entire population, including women and children; fanatics do not look to the United Nations to achieve pacific and rational settlement.
Lastly, I believe that it is not the inherent difficulties of a solution, but the lack of the will to implement a solution, that has caused the prolonged deadlock over the Kashmir dispute. The deadlock has meant indescribable agony for the people of Kashmir and incalculable loss for both India and Pakistan. The peace that has eluded the South Asian subcontinent, home to one-fifth of humanity, should be made secure.
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