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The Rediff Special/Arvind Lavakare

Need For A Mission Statement

Kashmir: The Real Story

It would not be a surprise if the seven earlier articles in this series on the Kashmir issue fail to sweep away the cobwebs of over half a century.

After all, there are any number of people who choose not to be wise. One can only take them to the trough of water. One can help in the homework, but writing the exams is their job.

That is the only reason one can think of as to why there are a number of such people -- media men included -- who even now believe that India should honour its commitment to holding a plebiscite in Kashmir.

It is either a misguided sense of morality that guides them or inadequate homework on the historical, legal and constitutional evidence lying drowned -- drowned in 50 years of the United Nation's unchallenged partisanship and our successive governments' meekness.

Perhaps the most glaring fact lost sight of by most is the democratic political process that ensued, as permitted, after the signing of the Instrument of Accession by the maharaja of Kashmir. This process, let it not be forgotten, gave the Kashmiri people the chance, the right, to reverse the accession if they had perceived it as being inimical to their long-term, permanent interest.

This reversal could have been brought about through Jammu and Kashmir's constituent assembly democratically elected on the basis of universal adult franchise in August 1951. Prior to that, the Indian Constituent Assembly had, on January 26, 1950, adopted the Indian Constitution which allowed special provisions (Article 370) for Jammu and Kashmir and, on the same day, the President of India had issued, with the consent of the government of Jammu and Kashmir, the Constitution (Application to Jammu and Kashmir) Order, 1950, specifying the matters with respect to which the Union Parliament would be competent to make laws for the state.

Thus, says Justice Anand, if Jammu and Kashmir's constituent assembly had desired that the state should be completely free of the Indian Union, it could have requested the President of India to issue an order under the Indian Constitution's Article 370 making both -- that article and the order of 1950 -- inoperative.

In that eventuality, the state of Jammu and Kashmir would have become a mere protectorate of India because the matters of defence would have remained with India as per one of the conditions of the Instrument of Accession.

The other possibility was for Jammu and Kashmir's constituent assembly to request the Union government to abrogate Article 370 as well as the Instrument of Accession.

None of the above two options were exercised by Jammu and Kashmir's duly-elected constituent assembly during its testing deliberations spread over five years. Instead, its drafting committee's report, which was submitted on February 12, 1954, embodied the ratification of the state's accession to India. This report was adopted unanimously by the 64 members (out of the total of 75) present in the constituent assembly on 15th February, 1954.

It is therefore most refreshing to see a change of course now being suggested by a senior newspaper journalist and the vice-chief of our army staff (cited in the second article of this series). But before launching the diplomatic offensive they both advocate, it is essential to take fresh stock of all the arsenal we have and to string it all in a cohesive manner.

It is essential most of all to first deploy a high-powered legal brains trust to examine whether it is possible, at this stage, to challenge the turns and twists which the Security Council gave to our original complaint to it involving Article 35 of the UN Charter. After all, M C Mahajan, our former chief justice, had opined that "the question of aggression alone falls within its (Security Council's) competence". This view was reiterated by Justice Anand in his book.

Rather than Pakistan's aggression, the Security Council would appear to have been overly concerned with the legality and validity of Kashmir's accession to India. Hence, its emphasis on "plebiscite" as the solution.

It unwittingly exposed itself to this accusation when, by its resolution of January 5, 1949, it laid down in paragraph 3 (a) that the proposed plebiscite administrator would be formally appointed to office by the government of Jammu and Kashmir and that, as laid down in paragraph 3 (b), he would derive his powers from the state of Jammu and Kashmir (which includes, the area in the hands of tribesmen).

It was all too apparent by this resolution that the Security Council considered the state of Jammu and Kashmir as an independent entity despite its legal accession to India as per the Indian Independence Act of the British Parliament.

It was all too apparent that the UN was challenging the sovereign decision of the ruler of Kashmir and trying to play the super democrat god to the Kashmiri people. It was all too apparent, finally, that the Security Council had side-stepped India's complaint and instead leaned on Pakistan's counter accusation that India had attempted to undo the partition scheme and acquired Kashmir's accession by fraud and violence.

In conspicuous contrast, there was no retribution whatsoever for Pakistan over the finding of Sir Owen Dixon who, by virtue of the Security Council's resolution of March 14, 1950, was appointed "to exercise all of the powers and responsibilities devolving upon the United Nations Commission for India and Pakistan."

Sir Owen had observed that "when the frontier of the state of Jammu and Kashmir was crossed by the hostile elements, it was contrary to international law and when, in May 1948, units of the regular Pakistan forces moved into the territory of the state, that too was inconsistent with international law." That castigation was just ducked by the Security Council and dumped into oblivion.

Is there any remedy in international law against such deflection and distortion of the plaintiff's complaint? Is there any provision in the UN Charter to withdraw that complaint of ours? Is the failure of the UN to redress our original grievance even fifty years after it was lodged not reason enough to warrant such a withdrawal? Luminaries in international law must be consulted on a professional basis and their written options sought on these and related matters.

Then there is the letter in The Indian Express, Bombay, October 2, 1998 of L G Bhatia (a refugee from Sindh who once worked in the Pakistan division of our external affairs ministry) recalling that one Jarring, representative of the UN, had, after discussions with our political leaders in 1957, sent a report to the UN saying that the latter's resolutions of 1948 and 1949 were no longer relevant in the changed circumstances.

Shouldn't that report be studied afresh and pursued to its logical conclusion, especially since the reality of the Kashmir constitution, 1957, has made plebiscite legally repugnant as pointed out by our present chief justice?

The nature and extent of the legal tooth-comb which may have to be used is indicated by one oddity that strikes this commentator who has no access to original documents on the subject. Thus, Justice Anand has recorded that India's complaint to the Security Council was under Article 35 of the UN Charter.

However, the Council's resolution of January 20, 1948, which established the UNCIP, invested that Commission with a dual function, one of which was "to investigate the facts pursuant to Article 34 of the Charter of the United Nations."

Are Article 35 and 34 related? Why was Article 34 and not Article 35 mentioned in the Council's subject resolution? Was there some goof-up or hanky-panky from the word "go"?

So, much hard work really is needed before we can launch the much-needed diplomatic offensive. The whole-hearted assistance and co-operation of legal giants, political statesmen, professional PR agencies and media top brass in our land would be required. If the exercise is to succeed, it must first become a national enterprise, a part of our nation's mission statement.

Only then will we be able to convert our Kashmir conundrum into our Kashmir case. Only then will we be able to argue that case with logic, force and conviction. That case, simply stated, is what is already consecrated in Section 3 of Srinagar's constitution, viz, "the state of Jammu and Kashmir is and shall be an integral part of the Union of India."

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