Anwar Ahmad

Last week, Pakistani languor in presenting its case on Kashmir to the world was referred to. Some Indian readers have sent a robust response, contending that:

• Indian Prime Minister Nehru's plebiscite promise to the Kashmir was contingent upon a clause in the UN resolution requiring Pakistan to remove "its military and militants" from Kashmir. This not having happened, the UN resolutions are dead and, by reason of its Maharajah's accession to India, Kashmir became a part of India. Indo-Pak talks can now only focus on the return of Pakistani controlled Kashmir to India.

• Pakistan did not withdraw because it feared that the Kashmiris - who had "cheered and greeted the Indian army" for saving their lives - would vote for India.

• Pakistan does not care for the Kashmiris, wants their land, is fanning fundamentalism and fomenting terrorism in Kashmir which "has the potential for destruction far greater than what we see today in Afghanistan."

• Indian governments have been unattentive to "the problems of Kashmiris," but they are happy with India and, though some have been "provoked in the name of religion" by Pakistan, do not want freedom or to join Pakistan which has failed even to sustain a democratic set up and grant freedom to its own citizens. It has the "worst human rights record" - considering what "it has done to its own Muslims," calling them Muhajirs even after 54 years, not repatriating Pakistanis stranded in Bangladeshi camps, sectarian mayhem, tormenting the minorities.

• India has the "best" human rights record, many Muslim cabinet ministers and has had Muslim presidents. "Your Muslim brethren" will tell you "how good they have been treated" in India.

An intimidating indictment indeed. On Pakistan's internal mess, only an honest confession is in order. The continuing failure to create a democratic culture is the mother of most ills, including the rise of extremism and intolerance. It cost us East Pakistan, the Indian intervention being but the coup de grace to the chain of our follies (similarly, though, most causes of India's Kashmir woes lie within).

Indian democracy, on the other hand, is the glue holding a vast and disparate country together. Though Pakistan's envy, how far has it empowered the weak and poor? After all, if nearly 50 percent Pakistanis have been pushed below the poverty line by corruption, free-marketing, debt and defence, the same is true in India despite a stronger economy. In fact, a discomfited BJP struggle to wish away the starvation deaths.

If the Indian Muslims are happy, so they should be as equal citizens of a democratic country. But the prominent faces aside, against their 15 to 20 percent population, only around 3 percent Muslims are represented in Indian services and power structure. Let us overlook Babri Mosque, the ensuing massacre of Muslims, the failure to punish their killers (and of the Sikhs massacred after Indira Gandhi's assassination), church-burning, rape and murder of Christian nuns and priests - including Rev Staines and his young sons burnt alive.

But only the other day, despite official obstacles, thousands of Dalits ("untouchables") publicly embraced Buddhism to protest and escape the tyranny of the Brahmanic caste-system. A stinging rebuke indeed to Indian democracy. While Pakistan's much noted "fundamentalists" are no more than a fringe, India's are in power and running amok. Even Taj Mahal has been vandalised.

However, this unending kettle-and-pot syndrome exonerates neither country. Both face serious socio-economic disequilibria within, Pakistan being more culpable because it was crated to give its citizens a better life than they would have had in India. And it had a head start in being free, in theory, of the caste bondage. Yet, the Quaid's dream of a democratic, tolerant, equitable and harmonious society remains unrealised.

Now to the Kashmir Albatross. If Pakistan's non-withdrawal was the only hurdle to a plebiscite, India would long ago have put Pakistan on the mat in the UN. Or, it could have gone to the ICJ. Or, asked the UN to hold a plebiscite in India-occupied Kashmir (IoK). Similarly, if recovering Pakistani Kashmir was the only issue, Pakistan and not India would be spurning a dialogue.

The matter has become more complicated, mainly because India has the muscle occupy their land but not the sensitivity to win the hearts and minds of the Kashmiris. They may or may not wish to join Pakistan. But, secular or religious, pacific or militant, most Kashmiri Muslims have never wished to live within India. Sheikh Abdullah, the pro-Indian Kashmiri leader, concedes in his autobiography (Aatish-e-Channar) that the general inclination of the Kashmiri people during the partition days was to join Pakistan but his own political judgement dictated otherwise.

Asked why India was stonewalling the plebiscite, its then defence minister, Krishna Menon replied, "Because, we would lose it. Kashmir would vote to join Pakistan and no Indian government... agreeing to the plebiscite would survive (Arthur B Tourtellor, Kashmir: Dilemma of a People, a Drift; Saturday Review, March 6, 1965). Patel, India's Deputy Prime Minister, expressed the same sentiment, fearing a Gandhi-like "assassination of Nehru" and reprisals against Indian Muslims (Michael Brecher, Kashmir: A Case Study in UN Mediation; Pacific Affairs, September, 1953). This was, and is, the real bar to a plebiscite.

At the time of independence in 1947, the 584 princely states were given the option to join India or Pakistan. The ruler was to make the choice according to the people's wishes which would prevail in case of a dispute. Problems arose in three states. The Nawab of Junagadh, a Muslim, acceded to Pakistan. But the majority population being Hindu, India invaded the state, held a plebiscite and annexed it. The same happened in Hyderabad Deccan, where the Nizam, again a Muslim, wanted independence.

Kashmir was the reverse: a Hindu Maharajah ruling a 77 percent Muslim population (1947 total: 4.2 million) already in revolt since 1931 against his bigoted and tyrannical regime. After angling for independence, he acceded to India on October 22, 1948. Earlier, seeing the Nehru-Mountbatten and Maharajah-India collusion, the killing of Kashmiri Muslims and arrest of the pro-Pakistan leaders, armed Pakistani tribesmen had entered the state to liberate it.

It is important to note that the authenticity of the accession has been questioned by Alastair Lamb (Birth of a Tragedy: Kashmir 1947; Hertingfordbury, Roxford Books, 1994) as the original document has never been revealed by India because, possibly, it was never signed. Indian author and journalist M J Akbar (Kashmir: Behind the Vale, New Delhi, Viking, 1991) supports Lamb's conclusion. This would make the Indian occupation totally illegal, and demolish its claim to Kashmir.

Even otherwise, the accession was accepted by India "provisionally and conditionally subject to a referendum to be held under the UN auspices to ascertain the wishes of the people" as soon as "law and order was restored." This commitment was made by Viceroy Mountbatten and premier Nehru who, reiterating the principle that, where accession was disputed, wishes of the people would prevail, said, "That pledge we have given and the Maharajah supported it, not only to the people of Kashmir but to the world."

When India took the Pakistani intervention to the UN, it sought a cessation of hostilities to allow a plebiscite under UN auspices. Security Council resolutions of 1948 and 1949 provided for the withdrawal of forces, a plebiscite and an interim government. Pakistan was asked to withdraw its nationals while India could retain a "minimum" force to assist the plebiscite. This is the focus of the legal wrangling.

India strived to exclude Pakistan from the plebiscite, and hold it through a friendly administration headed by Sheikh Abdullah and backed by the Indian army with nominal UN supervision. It even locked up pro-Pakistani leaders like Ch Ghulam Abbas. Pakistan was confident of winning the poll but, seeing the Indian design, insisted on a UN administration to conduct it. Extensive UN efforts failed and the number of troops each side could maintain in its part.

This is where the matter is stuck. In 1955, when Pakistan joined the US-led anti-communist CENTO and SEATO, India invoked the principle of rebus-sic-stantibus and withdrew the plebiscite option from Pakistan. This declaration, being unilateral and extraneous to the dispute, could obviously not nullify the UN resolutions.

Thus, unsuccessful Indo-Pak talks were held in 1953, 1955, 1960, 1962-63 and this year in Agra. The Indo-Pak Simla Accord (1972), Lahore Declaration (1998) and the international community recognise Kashmir as a dispute, the latest reminder of which was sounded by US Secretary of State Colin Powell during his recent Indo-Pak visit. Besides, Article 370 of India's constitution, gives Kashmir a special status distinct from the other constituent states. As Pakistani Kashmir still does, IoK had its own constitution, president, prime minister, superior judiciary. But these were scuttled by India in 1953, 1964 and 1965, fearing annexation, the Kashmiris rose in protest. Pakistani effort to capitalise on the uprising, led to the stalemated war of 1965.

Since the last decade, Kashmir has been bleeding. India blames Pakistani-sponsored "cross border terrorism" and Pakistan declares it an indigenous freedom-struggle. If India is right, the incursion ought to have fizzled out as it did in 1965. Or, India could have sealed off the LoC by massing its 0.7 million security personnel alongside it rather than spreading them around Kashmir in search of the militants. If Pakistan is doing its bit, it is only because all is not well in IoK.

Pakistan asks India to recognise Kashmir's disputed status and talk about resolving it. If Pakistan is after land, India could stump it by offering independence to Kashmir. But India remains stuck on the "integral part" mantra. Perhaps the post-September 11 world would ultimately knock their heads together and pull India and Pakistan back from the nuclear incinerator.

The writer is a freelance columnist

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