Addressing a public gathering in AJK last month, Prime Minister Nawaz Sharif said, “We are waiting for the day Kashmir becomes (part of) Pakistan”. Instantly reacting to this statement, Indian External Affairs Minister Sushma Swaraj readily clarified that the state of Jammu and Kashmir actually belonged to India and it would never become part of Pakistan. By juxtaposing these two statements, we can infer the respective positions and postures of two South Asian arch rival countries vis-à-vis the disputed Himalayan state. Presently, having declared Kashmir their inseparable part, both countries are constantly endeavouring to realise their ‘Kashmir dream’. However, they differ in their modus operandi- Pakistan desires a peaceful ‘cession’ while India is trying a forcible ‘annexation’.

Since 1947, there has been a constant tug of war between the two dominions over absorbing this erstwhile princely state of British Indian Empire. Over this single issue, they have also been engaged in a number of armed conflicts with each other. Besides this, they have also been trying to settle this dispute through negotiations since inking the Simla Agreement in 1972. Sadly, neither country has ever seriously bothered to include the Kashmiri people in the dialogue process as a stakeholder despite the fact the Kashmiri leadership has explicitly asked to do so many times.

As a matter of fact, both countries’ current fixation with the unfortunate Himalayan state lies at the root of Kashmir dispute. Ironically, while making exclusive claims regarding the territory of Kashmir, both countries often forget that Kashmir is not mere a piece of land but also the troubled abode of tens of millions of ill-fated Kashmiris who are struggling for their basic political rights for a long time. Therefore, how can someone else decide their political future? How can any country make crucial decision on their behalf? This is one of the most agonising aspects of the current Kashmir crisis.

In previous columns, I have discussed in detail the principle of ‘consent of the governed’ and its political relevance in any polity. Certainly, this very principle forms the underlying basis of authority for both the state and the government. It essentially maintains that the legitimacy of the government and its moral right to use state power is not legal and justified, unless consented to by the people over which that political power is exercised. The United Nation’s Universal Declaration of Human rights also recognises this principle. Its Article 21 says, “The will of the people shall be the basis of the authority of government”. Thus the political future of Kashmir should also be determined in accordance with this principle, allowing the will of Kashmiri people to significantly prevail. Neither country should try to override or undermine this principle.

Before proposing any solution for the current woes of Kashmiris, let’s first discuss the legal and moral positions of both India and Pakistan on the Kashmir issue and their locus standi to exclusively absorb the territory of state of Jammu and Kashmir. India generally justifies its occupation on Kashmir primarily on the basis of an Instrument of Accession (IOA), signed by then Maharaja of Kashmir Hari Singh on October 26, 1947, coupled with its de facto control on IOK. Observably this IOA is shrouded in deceit and controversies. First, the Maharaja of Kashmir’s own ‘right to rule’ was illegitimate since the people of Kashmir had already revolted against him. He acceded to India with the aim of securing Indian support for his crumbling rule. A few months earlier, he had rejected a similar proposal for accession made by the Lord Mountbatten.

Secondly, while retaining the sovereignty over his state, the Maharaja conditionally acceded to the dominion of India, allowing India to excise its authority with respect to only matters like defense, external affairs, communication etc. However, after a brief period during which the Maharaja remained just a titular ruler of the state, India abolished his monarchy altogether, giving rise to an absolute Indian rule in state of Jammu and Kashmir. Thus India itself violated the terms of the ‘historic legal document’ from which it has been deriving its legitimacy and justification to stay in Kashmir.

Thirdly, the Governor General of India Lord Mountbatten also conditionally accepted the IOA by remarking, “It is my Government’s wish that as soon as law and order have been restored in Jammu and Kashmir and her soil cleared of the invader the question of the State’s accession should be settled by a reference to the people.” Therefore, IOA was a provisional document which has yet not attained finality since the promised plebiscite has never been held in the IOK. Besides this, a number of UNSC resolutions, calling for holding impartial plebiscite in Kashmir, nullifies altogether the legal binding force of this document.

For the sake of argument, if we consider India’s rule in IOK as legitimate and justified, nevertheless India is not justified in forcibly suppressing the currant pro-independence movement in the valley. In today’s contemporary world, the will of the people determines the form and functions of all political institutions in any country. The majority of People can demand political sovereignty at any time. Sates are supposed to respect the political aspirations of their subjects. Therefore, irrespective of India’s legal basis to rule Kashmir, it is an inherent political right of the Kashmiris to demand a plebiscite to determine their political future.

Following the treaty of Union in 1706, the Kingdom of Great Britain came into being as a result of the political union of the Kingdom of England and Kingdom of Scotland. Later, the parliaments of both states duly ratified this treaty by the twin Acts of Union in 1707. Although Scotland has been the duly-acceded and undisputed part of UK for more than three centuries, yet the UK government recently held a referendum in Scotland to allow the Scottish people to decide their political future. Earlier in 1922, the Republic of Ireland has willingly separated from the Union. Similarly, in 1995, the Canadian government allowed the Quebec people to determine the question of their political sovereignty through a duly-held referendum. There are so many similar instances. Now it is incumbent upon India to grant the Kashmiri people their long-denied political rights.

Pakistan’s ‘Kashmir claim’ is substantially based on various UNSC resolutions which have recognised it as a primary party to the Kashmir dispute. Beside this, it also relies on the underlying principle of Indian partition i.e. the Muslim majority states should become part of Pakistan. In fact, both grounds for Pakistan’s claim necessarily revolve around the will of Kashmiri people. The UNSC resolutions have authorised the Kashmiris to decide to join either Pakistan or India through plebiscite. At the time of partition, all of its constituent parts duly chose to become part of Pakistan through their elected representative assemblies. The people of NWFP province determined this question through a referendum. Apparently Pakistan has undermined its own legal position on Kashmir by trying to resolve the Kashmir dispute through negations with India, thereby shifting this dispute from international legal forums to a bilateral regional forum.

The state of Jammu and Kashmir was a princely state within the British Indian Empire. It was a semi-autonomous state at the time when both ‘dominions’ had not been even conceived. Today, this state is not legal part of either country. The IOK has a special status under Article 370 of Indian constitutions. Similarly, the AJK and Gilgit-Baltistan are also self-governing automatous regions. Since the people of Kashmir have yet not formally consented to either join India or Pakistan, therefore both countries should refrain from arbitrarily absorbing the Himalayan state.

Kashmir dispute essentially involves the fundamental political rights of Kashmiris. It is by no means a territorial dispute between two South Asian neighbouring countries. India and Pakistan have no moral authority to decide the political future of Kashmiris themselves through negotiations. They cannot fix this issue bilaterally. Therefore, they should also refrain from proposing and devising the ‘out-of-the-box solutions’ e.g. maintaining a status quo regarding Kashmir after recognising the LoC as international border, or converting the disputed state into a condominium of both countries. Plebiscite is the only workable solution to the underlying woes of Kashmiris. At this stage, Pakistan should, notwithstanding its legal and moral position of Kashmir, extend an unqualified support to Kashmiris’ current quest for freedom.

(To be continued)