KASHMIR: THE UNRESOLVED DISPUTE
B.A. LL.B. (Hons.),University of Petroleum and Energy Studies, Dehradun
“Kashmir was India’s paradise, an alpine “Switzerland” for the Moguls, ancient Srinagar, its capital city on the banks of Jhelum River, with nine bridges and waterways reminiscent of Venice, and an adjacent lake of moored houseboats and gondola-like shikaras, provided a lyric spring and summer interlude…” 1
“Kashmir”, has been always been regarded as a paradise on the earth. Since the Mughals, the place has been admired for its serenity and beauty. But the condition has not remained the same. Due to conflicts and warfare between two South Asian Countries that is India and Pakistan, the condition has worsened. Since Independence, the condition has been continually flagging and the time has come wherein both the nations are ready for a war.2 Despite a number of wars in the years 1947-48, 1965, 1999 and continuous firing at the Wagha border. Every day when we read the newspaper, several cases are reported related to firings and killings at the border3, strengthening of army forces by both India and Pakistan. Kargil war, beheading of Indian soldiers are few instances wherein the question arises that has the time arisen for a war between the two countries? Several agreements have been signed between the two countries like Shimla agreement, Lahore declaration, Non-nuclear aggression agreement, Karachi agreement but the effect is still violence and a feeling of hatred between the two nations. So the need for the hour has arisen that whether it is a ripe time to actually wage a war against Pakistan and to finally end the long drawn hatred between the two nations? Or stillpeace treaties between the two nations are a solution to the problem. Before going into the depths of the solution, it is necessary to actually draw attention to the root cause of the conflict. The burden of such hatred could be laid either upon the Britishers or upon the Mughal ruler that is Maharaja Hari Singh or the burden could be laid upon the partition of India and Pakistan. It was not the partition ofthe one country into two but it was the partition ofsecularism into different parts. The division of two countries actually led to an issue which has not been resolved for even more than six decades.
PARTITION OF INDIA, 1947
India’s struggle has always been known for its struggle for the freedom and independence. In fact the partition of India has always had fame in the history since it led to the establishment of two independent nations that is India and Pakistan under the leadership of JawaharLal Nehru and MohammadAli Jinnah respectively. Since the very inception, Britshers have followed the policy of divide and rule. In fact such policy was favouredby Jinnah and this was another reason for the establishment of a separate nation.4 It could be regarded that Mohammad Ali Jinnah always wished to have a separate state having the majority of Muslims. The idea of a separate Pakistan was not thought of before 1930’s. However, it could be regarded that one of the reason of partition was the motive of Ali Jinnah to have a loosely federated state with the maximum population of Muslims.5 Another reason that could be stated is that British were fully aware about the fact that they would not be able to control fullyextended empire, therefore soon after the victory of Labour party in British general elections in the year 1945, British withdrew from India. Another reason that could be stated in this aspect is that the Muslims of the country actually supported the creation of a new nation altogether.6 This showed that the conflicts between the two religions had arisen from a long time.7
CONFLICT BETWEEN INDIAAND PAKISTAN, 1947-49
At the time of Independence in 1947, there were around 565 princely states. Kashmir was one of the princely States8 at the time when India was actually splitting into two independent countries that is India and Pakistan. These princely states had the option to either join the country or to remain independent. Maharaja Hari Singh, the then the ruler of Kashmir, wanted to remain as an independent State and therefore he did not become a part of any of the country. But his hopes were soon shattered when Pakistan attacked India soon after Independence. The tribesmen of Pakistan intruded Jammu and Kashmir and a war was declared between the two countries. The war was started in October, 1947 when Poonch was attacked by a group of rebellion. Pakistan entered in parts of Kashmir in guise of tribal Pathans and attacked Kashmir on 20th October, 19479 with the ultimate aim to conquest Kashmir. Pakistan entered with equipped army so as to capture Uri, Jhangar, Rajura, and Naushera.10 On 22nd October, 1947 Pakistan led an incursion into the valley of Kashmir and entered Abbottabad. Within four days of war, Pakistan was able to capture significant places and was in the vicinity of Srinagar.11 On 26th October, the intruders had killed around 11,000 residents of Baramullah and destroyed Mohra power station that supplied electricity to Srinagar.12 As a result Maharaja Hari Singh in order to protect himself was compelled to sign the accession instrument on 26th October, 1947.13 But the situation had already worsened by that time. India had not made any arrangements for the protection of Law and order in Kashmir and as a result Kashmir had captured most of the part of Kashmir.14 These tribesman looted people, raped women, burnt houses in order to force people to come to the territory of Pakistan. India conducted a massive airlift of army personnel and thereby captured most of the parts of Baramullah. India would have been successful in capturing most of the parts of Jammu and Kashmir but was unable to do so. This was due to the reason that Jawaharlal Nehru, then the Prime Minister of the Country took the matter to United Nations on January 1 and for the first time it led to the establishment of United Nations Commission in India and Pakistan (UNCIP) in order to check the counterclaims by two countries. UN intervened and asked Pakistan to withdraw its tribesmen from Jammu and Kashmir and proposed an idea of Plebiscite. Dr. Josef Korbel, was the chairman of UNCIP at that time, asked Pakistan to withdraw all its troops and tribesmen from the State. In his words, “Once Pakistan withdraws them, the administration by the local authorities needs to be restored, India will reduce its troops to the barest minimum and then a plebiscite will be held to ascertain the wishes of the people of the state.”15 The cease fire continued till 1949 and it came to end January 1, 1949 and a cease fire was arranged byUN. The cease fire line popularlyknown as Line of Controlwas established so as to establish peace and security between the two nations. On the other hand, a UN peacekeeping force was established.16 On the west side ofthe ceasefire line, Pakistan controls around one-third of the state which they often regard it asAzad Jammu and Kashmir, whereas India consider it as Pakistani occupied Kashmir. The larger areas which were previously the kingdom of Hunza and Nagar or we could term it as northern regions, are still under the control of Pakistan.17
EFFECTS OF THE WAR OF 1947-49
The effects of the war were numerous. It led to plundering, looting, rape, kidnapping, forced marriage, molestation of women and forced change of identity. Several people lost their lives while migrating from one country to another. It was reported that nearly 75,000 women were molested in the process of migration of people from one nation to another.18
ARTICLE 370 OF THE CONSTITUTION: GRANTING SPECIAL STATUS TO THE STATE
The war between India and Pakistan ended in the year 1949 but still the concept of plebiscitewas not brought into existence. However, the war brought a special status to the State of Jammu and Kashmir by placing it under Article 370 of the Constitution of India. The instrument of accession was finally signed by the ruler of Jammu and Kashmir after Pakistan’s sudden attack over the State. Under the instrument only three matters were surrendered to the Centre. These were primarily externalaffairs, defense and communication. The two features related to such a provision were:19
1. The state has a much greater measure of autonomy and power than enjoyed by the other State;
2. And the Centre’s jurisdiction within the state is more restricted as when compared with that of the other States.
In 1950, when the Indian Constitution was on the anvil the future picture of the relationship between India and the State was not very clear due to many complications existing at the time. Therefore, the Constitution contains Article 370 which enables the Constitutional position of the State vis-à-vis the Indian Union to be defined from time to time without much difficulty.20 The State is governed under the Constitution on its own drafted by its Constituent Assembly. The Constitution of the State of J&K came into force on 26th January, 1957 and is designed on the lines of the Constitution of India.21 Article 370 has specifically mentioned about the special position of the State of Jammu and Kashmir and had mentioned about the temporary provisions with respect to the State. Further, Article 370(1) (c) has defined the territorial aspect of the State and has laid down that the provisions ofArticle 1 and of this Article shall also apply to the State.22 The Presidential order on 26th January, 1950 confined the legislative power of the union with respect to Jammu and Kashmir. Article 370(1) (b) limits the power of Parliament to make Laws for the State.23 The matters that are enumerated in the Union List and the Concurrent List is to be done bythe President in consultation with the State Government. Moreso, Article 370(1) (a) (ii) means that the subjects other than those mentioned in the instrument ofaccession can be brought within the purview of Parliament. But while in (i), only consultation of the state Government is required whereas in (ii) the concurrence of the State government has been stipulated.24 Article 370(1) (d) lays down that the other provisions of the Constitution, besides the above, can be applied to the State with or without modifications by the order of the President. However such an order cannot be issued by the President without consulting and concurrence of the State Government.25 Article 370 (2) further provides that if the State Government gave its concurrence, as mentioned above, before the convening of the State Constituent Assembly, “it shall be placed before suchAssembly for such decision as it may take thereon.”since the concept of Constituent assembly exists no more, therefore such a provision has been exhausted.26 The word “modification” has the widest scope when article 370 is to be considered. The term literally means that the President has the power to vary, amend or to modify a constitutional provision, in any manner and upto any extent while applying it to the State. The word does not simply encompass minor alterations rather it also includes alterations of larger amplitude within its ambit. In the case of PuranlalLakhanpal v. Union of India,27 the Supreme Court has observed the meaning of modification in larger sense.
“We are therefore of the opinion that in the context of the Constitution we must give the widest effect to the meaning of the word “modification” used in article 370(1) and in the sense it includes an amendment. There is no reason to limit the word modification as used in the said article only to such modifications as do not make any radical transformation.”
Further, the President has the power not only to amend the said article before it is applied but also it could be modified and altered even after it has been subsequently applied.28 However the essential that is worth mentioning under the said article is that any amendment that is made does not apply automatically to the State. It could be applied only with consultation and concurrence with the State Government. Such a provision makes any kind of amendment to the State flexible in nature.
THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1954.
Under Article 370(1) (b) (ii), the Constitution (Application to Jammu and Kashmir) Order, 1950 was promulgated by the President of India in consultation with the Government of Jammu and Kashmir. The order specified the matters with respect to which the Union Parliament was competent to make laws. The order of 1950 was however replaced by the order of 1954. This is the basic order which is modified and altered from time to time and governs the Constitutional status of the State. There are several provisions of the Indian Constitution that are not applicable over the State except for the following provisions as enumerated below:
1. The Judge of the High Court of Jammu and Kashmir could be removed from office in the same manner that has been laid down for the other Judges of the High Court of the other State.
2. A Judge may be transferred to or from one High Court to other State High Court only in consultation with the Governor.
3. The State High Court has been given power along with the Supreme Court of India to issue writs for the enforcement of the Fundamental Rights.29 This power is in pari material with the power of the other High Courts under Article 226 with this difference, however, that the State High Court can issue writs only for the enforcement of the Fundamental Rights and not for any other purpose.
4. When it comes to Centre and State relationship, the legislative power of the Parliament vis-à-vis the state extends the matters specified in List I excluding entries 8,9,34,60,79,97. In a few other entries, such as (3, 67, 81) some modifications have been made.
5. The State is also bound to acquire or request property for the Union if required.
6. Provisions relating to the freedom of trade, commerce, services and citizenship apply to the State of Jammu and Kashmir.
7. The Election Commission has jurisdiction over elections held in the State under its Constitution. In case of any dispute related to election in the State, then the petition could be filed in the High Court of the State. Afurther appeal lies to the Supreme Court in such matters.
8. No provisionsrelated to minorities apply to the State except those for the scheduled caste and scheduled tribes.
9. An amendment made under Article 368 does not have any impact over the State except it is made by a Presidential order under Article 370(1).
10. More so, the power related to preventive detention vests in the State and not in the Parliament and therefore there is a change when it comes to the applicability of Article 22 in this aspect.
Provisions regarding operation of emergency
The State also enjoys autonomy in case of emergency situation. Aproclamation of emergency under Article 352(1) would have no effect upon the State unless and until it is in consultation and concurrence with the State Government. Similarly, a proclamation of emergency could be declared by the President under Article 356 only if he is satisfied that the Government of the State cannot be carried on in accordance with the Constitution of India or with the Constitution of the state. Further, Article 360 of the Constitution does not apply to the State.30 Also Article 365 does not apply to the state as well.31
APPLICABILITY OFARTICLE 370
Article 370 of the Constitution is a temporary arrangement wherein although special status has been granted to the state but still the President has the power to amend and modify the contents of theArticle. Further article 370(3) provides that the President, by public notification declare that Article 370 shall cease to be operative with such modifications and from such date as it may deem it fit and appropriate. However such a provision holds no good since the concept of Constituent assembly is no more applicable in India.
BATTLE OF 1965 BETWEEN TWO SOUTH ASIAN COUNTRIES
The 1965 war between India and Pakistan is termed as “operation Gibraltar”, was the second war that was fought between the two countries. It was a sudden attack by the Pakistani troops over India. The primary motive of the Pakistani troops was to infiltrate Kashmir and thereby to create uprisings among the Muslim majority who wanted to migrate to Pakistan at the time of Partition.32 India was not prepared for a sudden attack by the Pakistani troops. Operation Gibraltar took place in August, 1965 where the Pakistani troops and guerillas guised themselves as Kashmiri locals and entered into parts of Kashmir. The conflict began after a clash between the border patrols inApril in the Rann of Kutuch(Gujarat) but it continued tillAugust 5 when 20,000-30,000 Pakistanisoldiers attacked Kashmir bycrossing the ceasefire line.33 Major GeneralAkhtarHussain Malikwas the person who instigated war between the two countries in the year 1965.34 The Pakistani soldiers made hideouts at several places including jungles near Chowkibal, a town in Kupwara District on the Indian side. Operation Gibraltar had several soldiers ranging from 7000 to 20000 and most of them were kids of the age of fourteen years or so. Several civilians of Indian administered Kashmir suffered at the sudden attack by Pakistan. They were killed, injured and harmed by the intruders. However operation Gibraltar was again not a success on the part of a Pakistan. India was able to overcome the sudden attack by Pakistan and was able to suppress the army of the enemy State. India was able to close the infiltrators point and in order to remove Pakistani forces, they launched an attack on Muzaffarbad a Pakistan administered Kashmir. Till the end of August India was successful in killing and captivating various enemy soldiers and those who were not killed or captivated were asked to pull back at the time when India attacked Lahore.35
The war of 1971acted as a trigger for bringing the Shimla agreement into force. This time war was fought between India and East Pakistan. India actually came forward in order to help the East Pakistan that is Bangladesh from the continuous attacks of West Pakistan. It is regarded as Bangladesh Liberation War, 1971. It was the third war between the two countries and is often regarded as the shortest war in the history since it lasted only for thirteen days. The cause of the war arose when the central Pakistani government led by ZA Bhutto refused to allowAwamiLeague leader Sheikh MujibirRahman, a Bengali whose partywon the maximum seats in the 1970 parliamentary elections. At that time several civilians of Bangladesh were attacked by the West Pakistan. So the best option that was available to them was to migrate to India. As a result several civilians migrated to the nearby areas of India like Mizoram, Arunachal Pradesh, Assam, and Tripura and so on. The government of India established several refugee camps for these people. But at the same time government considered it to a vital issue since the country was going through crucial phase wherein the economy of the Country was badly hit due to several wars, poverty and other economic reason. So by providing shelter to such people was an extra burden over the economy of the Country. Therefore, the Government considered it the right time to help Bangladesh and wage a war against Pakistan. India then launched air, land and sea assault on Pakistan. Finally the enemy nation surrendered and its army of 90,000 became prisoners of war. East Pakistan became the independent 1c8o6untry of Bangladesh on 6th December, 1971.36
Shimla agreement was signed between India and Pakistan soon after the war of 1971. It was signed by the Prime minister of India, Indira Gandhi and President Zulfikar Ali Bhutto on 2nd July, 1972. Such an agreement was aimed towards establishing peace and cooperation between the two countries. It was an effort to stop the long drawn battle between the two countries. It was also an effort to deduce hostilities and enmity between the two SAARC countries. The important aspects of such an agreement were as follows:37
1. To respect the sovereignty of both the countries.
2. To preserve unity and integrity of each country.
3. To establish a policy of non-interference in the internal affairs of both the countries as well to establish political independence of each nation.
4. To settle the disputes between the two nations by resorting to peaceful means and through bilateral negotiations instead of adopting the method of war and violence.
Further in order to help in the growth and development as well as to promote friendly relations between the two countries, several other rules were also laid down. These were:38
1. To promote trade between the two countries.
2. To promote communications, postal, telegraphic, sea, land as well as air links between the countries.
3. Exchange in the field of science and technology shall also be taken into consideration.
AFSPA AND HUMAN RIGHTS VIOLATION
Armed Forces Special Power Act, are the acts of Parliament wherein the Indian forces have special powers when it comes to the matters concerning “disturbed areas” of the country. It came into force in the year 1990 in Jammu and Kashmir. AFSPA has been criticized of violating the human rights of the civilians. There are several instances where police actually misuse the power granted AFSPA. The police force has the right to encounter any person if they have any suspicion that the person is involved in terrorist activities. However,apprehension and confirmation are two different aspects. Encountering a person on a mere doubt is in violation of the basic human rights granted to every civilian. Other kinds of power that has been imposed upon the officer of armed forces are:39
1. To use any kind of force upon the person even if it extends to the death of person, if he violates peace and order of the disturbed area.
2. To destroy any kind of arms, hide-outs or any kind of weapons that are made in the refugee camps by the armed volunteers or by the intruders.
3. To arrest any person without warrant even he has committed anycognizable offence or if there is any suspicion related to his involvement in the terror attack.
4. To enter any place and to search without warrant if there is doubt related upon any civilian who is involved in the breach of peace and order in these disturbed areas.
5. Army Law officers are immune to any kind of proceedings that are made against them in case of any arrest or detention made by them under AFSPA.
Irom Chanu Sharmila, also known as “Iron Lady of Manipur” has been on a hunger strike for more than fifteen years in order to repeal the ill provisions ofAFSPA. Apart from this, United Nations has criticized AFSPA to be in violation of the International Law. According to a NGO, Human Rights Watch, it has been stated as “tool of state abuse, oppression, and discrimination.”40 Machil encounter took place on 30th April, 2010 in Kupwara district of Jammu and Kashmir. Three civilians were encountered by the army forces and were regarded as foreign militants.After enquiry, it was reported that these people were actually civilians and had no relation with the enemy nation. Huge protest and uprisings surged in the State and finally the Court found out the IndianArmy guilty and therefore awarded life imprisonment to two officers and five soldiers were held guilty. It was even stated by the people of the said district that these civilians were painted black, they were threatened and compelled to show that they had relation to the enemy nation and that they were asked to name themselves as foreign militants forcibly.41
KARGIL WAR, 1999
Kargil war has always been remembered in the history of wars between India and Pakistan. It was a deadly war in which several soldiers were killed and injured badly. In a speech by Chief Pervez Musharraf, he said “it would be hard for India to forget those times when Pakistani troops grabbed India by the throat.”42 Every year the day is remembered by the country for the sacrifice made by the martyrs of our country. Soldiers selflessly surrendered their life for the protection of the civilians of the country. 26th July, 2105 was celebrated as the 16th anniversary of the Kargil war that took place on 26th July, 1999. The Kargilwar was launched after the sudden attack by Pakistan to infiltrate the Kashmir and along the LOC. It is known by the “operation Vijay” which was lunched to flush out the enemies from the country. Pervez Musharraf, who was then the army chief, is considered to be the master mind behind such a furious war. The army chief chalked out the entire plan without even consulting the PM Nawaz Sharif. He was assisted by Lieutenant General Mohammad Aziz. The army chief chalked out a strategic plan to attack Kashmir at the time when Hon’ble Prime Minister, thenAtal Bihari Vajpayee accepted the invitation to Lahore and where both of them signed the Lahore agreement. Both the sides were equally equipped with army, nuclear weapons, and other necessary armaments and ammunition. India constituted around five infantries, five brigades, fourty four battalions of paramilitary troops and arranged for further sixty frontline aircrafts.43 “Tiger hill” one of the highest hill peaks in drasskargill of the State was made as the focal point for war between the two countries. On May 29, 1999 the Government decided that Indian Air Force (IAF) would also be a part of the battle, however they would not cross the LOC. Use of formidable Mirage-2000 by IAF was commendable on their part. Use of such a laser guided bombs is worth mentioning since it has not been used in any parts of the globe. The enemy side made the use of stinger aircraft missiles but the weapon used by IAF was able to suppress the effect of strategic missiles used by Pakistan.Apart from this, IndianArmy deployed eighteen grenadiers to suppress the battle and to defeat the enemy nation. “Ghatak Platoon” was a unit that was assigned the task of climbing the most treacherous route with the help of a rope. Despite several attacks and continuous firings from the opposite side, Indian soldiers were able to face the counter attack. Yogendra Singh was awarded Param Veer Chakra for his commendable bravery and valiance shown at the time of continuous firing. He was hit by bullets several times, but he managed to kill four Pakistani soldiers and was able to draw the enemy off to their land.44 The war continued for a period of sixty days killing number of soldiers and leaving many injured. India lost around seven hundred soldiers and leaving many badly injured. However, India was able to suppress the war against Pakistan through the use of nuclear weapons as well as with assistance of International community. In fact, it is said that even Russia and Israel became a part of war and helped India in such a battle. The victory of India over Pakistan was yet another blow to the enemy nation. After the war, Nawaz Sharif expressed his regret and explained that he was not aware about the strategic planning of ParvezMusharraf, the then the army chief of Pakistan.45
WARS BETWEEN INDIA AND PAKISTAN AFTER 2000
If we look at the condition after the Kargil war, it is almost the same as it was after partition between the two nations. Still there are cease fires, killings at the border. If we look at the condition chronologically that is from 2001 then in that year itself around thirty eight soldiers were killed along the line of control. Pakistani President Parvez Musharaff and India’s Prime Minister Hon’bleAtal Bihari Vajpayee met in July for a summit inAgra. However no solutions were arrived at and ultimately summit collapsed. Further, Lashkar-i-Taiba attacked Indian Parliament which led to the death of fourteen people. Moving ahead, in the year 2004, Pakistani President ParvezMusharaffand India’s Prime Minister Hon’bleAtalBihari Vajpayee met in the 12th SAARC Summit and agreed to reduce the deployment of the troops on the border. As a result, in the year 2006, India redeployed the troops by 5000 and in September both the countries decided to put into place an Indo-Pak anti-terrorism mechanism. However, despite so many efforts to combat such anti-terrorist activities, there was an attack near Panipat, New Delhi. Samjhauta express was attacked taking the lives of eighty people. The year 2008 marked the most dreadful attack in Mumbai by the terrorist group Lasker-i-Taiba. 26/11 regarded as the one of the most dreadful attack led to death of one sixty people and left many injured. Taj Hotel, Oberoi Hotel, ChhatrapatiShivajiterminus, Leopold café, Nariman house, Jewish community centre, metro cinema, St. Xavier’s College were attacked by the terrorist group. The siege continued for three days and finally it was ended when AjmalKasab was caught by the police force. He was the only person who was caught alive and thereby he was executed by the Supreme Court of India.Apart from this, several Indian soldiers were beheaded by the Pakistani soldiers. If we look at the recent attack, then on 5th September, 2015 Pakistan violated the ceasefire by firing along the LOC in Jammu and Kashmir Poonch district.46
Similarly, Pakistani troops attacked RS Pura Sector of Jammu District and targeted Krishna Ghati sector of LOC in Poonch district on 3rd and 4th September respectively.47
Let me take the lives of the people, let me spread violence, hatred, hostility and enmityaround the country has become the slogan for the day. It seems that both the countries are totally concerned with the State of Jammu and Kashmir instead of the lives, growth and development of the civilians. Even after more than six decades of such a conflict, the issue has not been solved. Still the condition is the same. Still the people of Kashmir sleep in fear of war, under the fear of losing the lives of their kin and kith. But the time has arisen where a solution has to be drawn and infact there is a dire need that decision should be arrived at. The question that has continuously been cropping in the minds of the people is has the need and urgency for a severe war between two countries arisen? Or still the matter should be settled through agreements, treaties or through negotiations? Ifwe look at the present condition of the Country, then it might be regarded that yes the need for war has actually arisen. In fact both the countries are in favour of war. The time has actually come when the country should actually think about the growth and development of the State, it should think about the lives of the common man who are innocent and are unnecessarily being drawn into conquest between the two nations. Therefore, it is a high time when the government should realize that the civilians do have the right to live without fear and apprehensions in the Country and therefore adopting recourse to the problem is a necessity.