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The Rediff Special/Arvind Lavakare

Plebiscite Commitment is Conditional and Illegal

Kashmir: The Real Story

Considering the democratic rights, considerable autonomy and financial largesse being enjoyed by the state of Jammu and Kashmir under the Indian dispensation as against the marginalisation of people in the Pakistan Occupied Kashmir, the ethno-religious extremism in Pakistan and the country's fragile economic position, it may well be a Himalayan blunder for Pakistan or its supporters to believe that a plebiscite in Kashmir would go in its favour today.

But that fact does not deter Pakistan from raking up the subject again and again. We skirt the issue, forgetting that the democratic, adult franchise elections of August 1951 to Jammu and Kashmir's Constituent Assembly were itself a fundamental exercise in self-determination.

The unfortunate fact remains that, according to the resolution dated January 5, 1949, of the United Nations Commission For India and Pakistan, the government of India wrote a letter dated December 23, 1948 to the UN accepting that "the question of the accession of the state of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite."

That commitment of ours was incorporated in the UN Security Council Resolutions adopted on March 14, 1950, March 30, 1951, December 23, 1952, January 24, 1957 and December 2, 1957.

And India was reminded of that by Pakistan's prime minister, Nawaz Sharief, in the course of his address to the UN General Assembly on September 24, 1998. According to the report of R Chakrapani in The Hindu of September 25, 1998, Sharief charged India with failing in that commitment of hers to hold a plebiscite in Kashmir and, instead, resorted to "a policy based on force to deny the legitimate rights of Kashmiri people."

Speaking at the same assembly the next day, our own prime minister, Atal Bihari Vajpayee, failed to rebut the above facet of Sharief's address. That silence on Vajpayee's part was in keeping with India's docile Kashmir diplomacy of the last 50 years.

It is, of course, convenient for us to say that Vajpayee "disregarded" or "ignored" Pakistan's crude and juvenile effort to pick upon a couple of arguable aspects of the Kashmir issue before an august audience of delegates from 185 countries, but the fact remains that such silence on our part tends to get interpreted as "half consent".

The historical truth is different from what Sharief wanted the world to believe. Take the latter part of Sharief's accusation that India used force to acquire Kashmir and that the policy (of accepting the maharaja of Kashmir's Instrument of Accession) violated the rights of the Kashmiri people.

In essence, it is but a repetition of the charge made by Jinnah, Pakistan's founder, on November 1, 1947, by Liaqat Ali Khan, Pakistan's first prime minister, on November 4, 1947, and by Sir Zafarullah Khan, Pakistan's foreign minister, on March 6, 1951.

While Lord Mountbatten accepted that Kashmir's accession had come about with violence, he also told Jinnah that "the violence came from tribesmen, for whom Pakistan, not India, was responsible." Further, as cited earlier in this series, Campbell-Johnson had stated in 1951 that "the legality of the accession is beyond doubt ... It should be stressed that the accession has complete validity both in terms of the British government's and Jinnah's expressed policy statements.''

In fact, time has come for us to tell Sharief to read all recorded commentaries outside Pakistan to understand what really happened in Kashmir 51 years ago and after. Just a teeny gem he must not overlook is the parallel of Texas's annexation in 1845 to the United States cited in the third article of this series.

In short, Sharief should be reminded that in a monarchical form of government -- as existed in the independent state of Jammu and Kashmir in October 1947 -- it is the monarch who personifies and represents that state.

When the maharaja of Kashmir signed his accession to India on October 26, 1947, neither he nor India was violating the rights of Kashmiri people. Rather, it is the Kashmiris in Pak Occupied Kashmir who have been denied legitimate rights to be represented in the Pakistan parliament or to have any voice in the administration of that country.

To revert to Nawaz Sharief reminding India of her commitment to a plebiscite in Kashmir: Like several prime ministers before him, Nawaz Sharief jumped the gun in that speech of his to the UN general assembly. He conveniently forgot that the Security Council resolutions, mentioned before, had laid down that the proposed plebiscite would come only after:

1."The government of Pakistan will use its best endeavour to secure the withdrawal from the state of Jammu and Kashmir of tribesmen and Pakistan nationals ... who have entered the state for the purpose of fighting." (UNCIP resolution of August 13, 1948 which, accepted by the Security Council, made it crystal clear that it was Pakistan who was the aggressor in Kashmir.)

2"... the demilitarisation of the state of Jammu and Kashmir" wherein "the 'Northern Area' should also be included" even as the latter's "administration should, subject to United Nations supervision, be continued by the existing local authorities." (Security Council resolution of March 14, 1950 read with the proposal of General McNaughton, Security Council president.)

Now if, in 50 years after the UN stated its above requirements, Pakistan did not withdraw all its forces from Kashmir but has, on the other hand, taken possession of over one-third of that state's territory and nonchalantly christened it "Azad Kashmir", how the dickens can anybody in Pakistan or elsewhere even talk of asking for the subsequent step of a plebiscite in Jammu and Kashmir?

Now this business of "plebiscite" is itself a thorny, tricky issue.

First of all, the word "plebiscite" is not as clear-cut in meaning as is believed. The Concise Oxford Dictionary defines it to mean "direct vote of all voters of state on important public question; public expression of community's opinion, with or without binding force." (emphasis added).

Now then, did the UN resolutions want to leave this loophole of a plebiscite without binding force? If not, what is the deciding majority of a binding plebiscite? Is it a simple majority or a two-thirds majority?

What if a plebiscite on the accession results in 50.45 per cent vote for India and 49.55 per cent for Pakistan? Will such a verdict be deemed to be the will of the people? Will it not create another cause for the cry of jehad from Pakistan?

The UN did not apply its mind to such nuances of a plebiscite. It is significant to note in this context that the political party spearheading the move for Quebec province becoming independent of Canada was recently put in a quandary when the country's supreme court took upon itself to decide, in course of time, as to what will be the percentage of popular vote required in Quebec's favour to allow its secession from Canada.

Another problem of a plebiscite in Kashmir would be the opposition it will certainly meet from organisations like the Jammu and Kashmir Liberation Front which have been agitating for an independent status for Kashmir rather than for accession to either Indian or Pakistan. The UN resolutions have not provided for that option. Will a plebiscite on only two options not create a jehad?

Without these above dimensions being made explicit by the UN, Pakistan goes on harping on a plebiscite, believing that the word "plebiscite" is itself the mantra that will resolve the Kashmir problem.

On the Indian side, while the politicians of all hues have never publicly uttered the word "plebiscite" for whatever reason, there are at least two authoritative and supreme judicial opinions against the very concept of a plebiscite in the state of Jammu and Kashmir.

In his Accession of Kashmir to India (The Inside Story), M C Mahajan, the former chief justice of India, states, "The document of accession is India's title deed to Kashmir. The Instrument of Accession did not give to the dominion of India any power to barter the future of the state. As such it would seem that the undertaking given on the floor of the Security Council is wholly ultra vires the Indian Independence Act (of the British Parliament) and the constitutional powers of the two dominions."

As matters stand today, the Indian republic's relations with the state of Jammu and Kashmir continue to be governed by the stipulations of the Instrument of Accession. Proof of this lies in the fact that, as permitted by clause (7) of that Instrument -- reproduced in an earlier article -- Jammu and Kashmir has its own, separate constitution.

Therefore, a public interest litigation by an Indian citizen could well prevent the government of India from agreeing to a plebiscite on Kashmir on the ground of being ultra vires as observed by Mahajan above.

And remember that, according to a Supreme Court judgment of 1954 (Virendra versus state of UP), "act of the execution of the Instrument of Accession by the ruler and its acceptance by the governor general are both acts of state into whose competency no court can enter."

Even greater complexity lies in Justice Anand's opinion that "to hold a plebiscite in one component of the Indian Union implies the possibility of secession; the Indian Constitution does not permit secession."

He also points out to Article 253 of the Constitution of India which lays down that "no decision affecting the disposition of the state of Jammu and Kashmir shall be made by the government of India without the consent of the government of the state."

Would even the most unfriendly state government in Srinagar give such a consent? Would it, considering the tertiary treatment given for so long to Indian Muslims who went to Pakistan during Partition? Would it, considering the bitter Sunni-Shia rivalry in Pakistan? Would it, considering the weak Pakistani economy's almost perpetual dependence on foreign doles?

Even if a government in Srinagar wanted to give the necessary consent under Article 253, it would be logjammed by the state's own, written constitution wherein Section 3 lays down that "the state of Jammu and Kashmir is and shall be an integral part of the Union of India."

What's more, Section 147 of the Constitution prohibits any amendment of that Section 3! That is why Justice Anand says that "to hold a plebiscite would be repugnant to the constitutions of India and Kashmir."

In essence, this means that any proposal for a plebiscite in Kashmir would have to be preceded by the abrogation of the present constitution of Jammu and Kashmir, 1957!! That act would require a mutiny unchecked by Delhi. Is that at all within the realm of possibility?

Tomorrow: The Series continues

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