By Syed Sharfuddin*
Executive Summary
In the aftermath of India’s revocation of Article 370 of the Indian Constitution on the disputed territory of Indian Held Kashmir, it is no longer feasible for Pakistan to maintain the status quo on Kashmir along the UNMOGIP observed Line of Control. As an immediate first step, Pakistan should honour the wishes of the Kashmiri people from Azad Kashmir, as well as from Indian Held Kashmir, to join Pakistan by convening an extraordinary session of the two Houses of Parliament to discuss Kashmir and amend the 1973 Constitution to make Kashmir the 6th Province of Pakistan comprising the present Azad Kashmir and the entire Indian Held Kashmir minus Ladakh. Of course, the process will start from a Congress of the Kashmiri people from both parts of Kashmir meeting in a neutral capital, such as London or Norway, or a city in the USA, and passing a resolution, similar to the historic 23rd March resolution of 1940 in Lahore, to reject India’s occupation and join Pakistan. Acting on this resolution, the Azad Kashmir Assembly should meet and pass a resolution on behalf of the people of Azad Kashmir and the people of Indian Held Kashmir requesting Pakistan to accede to their demand. This will trigger Pakistan’s own response by convening a joint session of the federal Parliament and amending the 1973 Constitution to make Kashmir the 6th province of Pakistan whose territory shall comprise the present Azad Kashmir and the territory of Indian Held Kashmir minus Ladakh. A further provision will be added in the Constitution to reflect this in the international boundary of Pakistan and suggest that the new boundary will take effect from the day Indian occupation terminates in the occupied territory. Having taken this action, Pakistan should negotiate with India a pacific settlement of the Kashmir dispute with or without international mediation from a big power guaranteeing the full implementation of the peace accord. By taking away the special status of Kashmir under duress, India has returned the delegated people’s power from the abrogated Assembly back to the Kashmiri people to decide their future without a plebiscite outside of India.
On 5 August 2019, India surprised its citizens and the outside world by revoking the autonomous status of the Indian Held Jammu & Kashmir (IHK) provided under Article 370 of the Indian Constitution, and by enacting a new Jammu and Kashmir (J&K) Reorganisation Bill to make the disputed State two separate territories. Under the new arrangement, J&K will become a part of the Indian Union and have a Legislative Assembly, and Ladakh will become a part of the Indian Union without a Legislature. Prior to presenting the Bill in Rajya Sabha on 5 August 2019, which was carried by a majority vote of 125, with 61 against and 1 abstention, India’s Home Minister Amit Shah said that the decision on Ladakh was taken in view of the “long pending demand of the people of Ladakh to give them the status of a Union Territory to enable them to realise their aspirations”. For J&K he used a different yardstick, promising that peace will return to J&K in a short period (five years), without answering the criticism from the opposition Indian National Congress that the ruling BJP did not hold any consultation with the political parties, as well as the Kashmiri leadership, most of whom are locked up in jails or are under house arrest.
But the Indian action on Kashmir is no surprise to India watchers. Having failed in their attempt to silence the surge in the indigenous struggle for independence by a heavy armed presence, and causing almost every household in the Valley to bury their young dead lads chanting Pakistan Zindabad and Kashmir Baneyga Pakistan, it was not unforeseen that the new BJP government would carryout its long-standing pledge to formalise Kashmir’s merger in the Union by repealing its constitutionally protected special status and opening the disputed territory to Indians from the rest of the Union to buy property and businesses and change the demographics of IHK and ‘Indianise’ the disputed Muslim-majority Pro-Pakistan State according to the BJP text book of Hindutva.
It is also not surprising that the majority of Kashmiris feel cheated for the second time in their national struggle to free themselves form Indian occupation in three successive generations.
It is also not surprising that the majority of Kashmiris feel cheated for the second time in their national struggle to free themselves form Indian occupation in three successive generations since the messy partition of India overseen by the British in 1947. Through its latest action, the Modi government has removed the fig leaf of J&K as a disputed territory and made the people of J&K victims of tyranny of majority by using the heavy hand of the Indian Union’s democratic institutions comprising the Executive and Parliament. There is little doubt that the 5 August action taken by India in regard to IHK will be reversible even if a constitutional petition is filed at the Indian Supreme Court against today’s vote. As stated in Rajya Sabha today, the government would take the position that it will hold fresh elections in J&K and ask the new Legislative Assembly to sign a fresh instrument of accession by J&K to join the Indian Union.
With a curfew fully in place in the IHK, its past and current Muslim leadership under arrest, its democratically elected Legislative Assembly suspended and the people of Kashmir having no human rights and no say in the new reorganisation their State, the Indian Union’s theatre of the absurd in the Parliament lacks political legitimacy and is short of civilised democratic norms. However, it is a historic motion because it formally divides the Muslim-majority J&K from the Buddhist-majority Ladakh.
India could, in the future, find it easy to negotiate with the Kashmiri leadership a political settlement, which could be acceptable to them, as well as to Pakistan while keeping Ladakh out of the equation.
This development also gives Pakistan an urgent one-time opportunity to rethink its response and strengthen its position toward negotiating a final deal on J&K with India in the future.
What gives Pakistan and Kashmir a permanent advantage over India is the undeniable fact, proven by the last seventy years that until Kashmiris and Pakistan agree on a peace deal, there can be no peace in the Sub-continent, which India badly needs to keep its economic development at par with the other emerging economies in the G15.
Having binned its own political arrangement put in place to do away with the plebiscite, which supposedly placed the voice of the people of IHK in the hands of an elected Legislative Assembly deriving its so called ‘legitimacy’ from Article 370, the political power delegated by the people of Kashmir to their representatives has returned to them. They are now free to express their political will outside the Indian political process and demand independence from India and express their desire to join Pakistan from any platform. A Congress of Indian Kashmiri expatriates held in any European capital such as London or Norway, or even in the US can provide a substitute for their lost Assembly. They can invite IHK’s Kashmiri leaders online or through messages sent by them to pass a resolution condemning the failure of the previous governments in India to fulfil Jawaharlal Nehru’s commitment for holding a UN-supervised plebiscite in Kashmir; and they can reject the action of the present Indian government for annulling Kashmir’s special status and its reorganisation through a parliamentary act on 5 August 2019. Through a simple majority resolution such as the historic 23 March resolution of Pakistan, the Indian Kashmiris can declare that as a substitute for the plebiscite, they have now decided that the J&K territory in the IHK is now a part of Pakistan.
The Azad Kashmir Assembly can request the State of Pakistan to grant the people of Azad Kashmir, as well as the Kashmiri people of IHK the status of a separate and full Province in Pakistan with all the rights, as enjoyed by the constituent parts of the Federation of Pakistan.
Responding to this resolution from the Congress of the people of IHK, the Legislative Assembly of Azad Kashmir on the Pakistani side of the Line of Control can convene an emergency session and pass a resolution expressing their solidarity with the people of IHK and take a positive view of the resolution passed in their Congress. The Azad Kashmir Assembly can further request the State of Pakistan to grant the people of Azad Kashmir, as well as the Kashmiri people of IHK the status of a separate and full Province in Pakistan with all the rights, as enjoyed by the constituent parts of the Federation of Pakistan.
Article 257 of the Constitution of Pakistan states that “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State”. In pursuance of this provision, the Senate and National Assembly of Pakistan should meet in an extraordinary joint session to consider the request of the Azad Kashmir Assembly to make Azad Kashmir as well as IH Kashmir a new province in the Federation.
In pursuant of Article 257 of the Pakistan Constitution and to respond to the resolution of the Azad Kashmir Assembly expressing the combined wish of the people of Kashmir on both sides of the LOC to accede to Pakistan, the Senate and National Assembly of Pakistan should meet in an extraordinary joint session and declare that the whole of Kashmir on both sides of the LOC, as far as its territorial limits extend, is a new province in the Federation of Pakistan. Article 1 of the Constitution should also be accordingly amended by two-third majority and a provision should be added that Pakistan’s borders shall comprise, in addition to its present international boundaries, the area of the disputed Indian Held J&K as shown on the present world map, whenever it becomes free from Indian occupation.
Pakistan Constitution should be accordingly amended by two-third majority and a provision should be added that Pakistan’s borders shall comprise, in addition to its present international boundaries, the area of the disputed Indian Held J&K as shown on the present world map, whenever it becomes free from Indian occupation.
On the face of it, to some people it may appear that the suggestion to recognise Azad Kashmir as the 6th province of Pakistan is walking right into the BJP strategy where India would probably want Pakistan to do the same with Azad Kashmir and settle the long standing Kashmir dispute on the basis of the status quo on the Line of Actual Control. It is possible that when President Trump offered US mediation on Kashmir to Prime Minister Imran Khan last month, he was referring to settlement of the Kashmir dispute along the LOC. However, in the step-wise action plan outlined in this paper, which I call the Sharfuddin Formula, Pakistan will be officially claiming the entire Kashmir, both Azad Kashmir as well as the IHK as the territory of Pakistan without having to go to war with India. A constitutional claim by Pakistan would not have been possible in the absence of current Indian provocation and would have elicited serious retaliation by India. But ironically, the BJP government has presented Pakistan this opportunity on a platter. Having claimed the entire territory of Kashmir as the 6th Province of the Federation in the country’s Constitution through a constitutional amendment, Pakistan can go about doing its business as before but when in the future Pakistan’s economy and defence is strong, it can always get back to India with the dictating position that India’s occupation is not acceptable in Pakistani territory.
Pakistan’s response to India’s action along the above lines, also carries several tactical advantages:
1) It will give Pakistan a new boundary which will be extended beyond the LOC to include the entire territory of IH J&K leaving Ladakh to India. Even though Jammu may have Hindu majority, keeping it together with Kashmir Valley is important for negotiations because the two regions are intrinsically linked with each other.
2) By breaking the IHK into two administrative territories India has already acquiesced in the existence of a Muslim-majority Kashmir and a Buddhist-majority Ladakh. It will be easy for Pakistan to press its case for getting Kashmir back from India instead of playing the role of an interested party that supports the Kashmiri cause politically and morally.
3) The popular resistance in IH Kashmir will find a new ray hope under the present most depressing circumstances where some people are seeing this act by the Modi government as the last nail in the coffin of resistance. By declaring the entire IH J&K as part of Pakistan constitutionally and politically, the indigenous resistance will grow stronger and ruin the chances of India hoping to gulp it down as it did other princely states in the past, notably Hyderabad. It will also give encouragement to those pessimists in Pakistan who are saying it is too late to do anything because they think that India’s ‘master stroke’ is so good, it cannot elicit a befitting counter-response.
4) The people of Kashmir will have their representatives sit in Pakistan’s Executive and Parliament and take part in the political process as Pakistani citizens with equal rights and responsibilities. Pakistan’s foreign and security policy will include their voice and provide a fresh blood in the direction of the country in settling this long-standing dispute with India on its terms.
5) Outside powers, including Pakistan’s friends do not fully understand the administrative arrangements of Azad Kashmir. The voice of Azad Kashmir gets muted abroad when Pakistani diplomats representing Pakistan speak for Azad Kashmir. Azad Kashmir’s President and Ministers are not given meeting appointments because of the complex rules of international recognition of countries. The new province will make greater impact on third countries interested in international mediation or supporting bilateral negotiations for peace in the Subcontinent.
6) It will unite different political parties and interest groups on one cause and bring a huge improvement in the current governance structures by adding focus and purpose in the national and provincial agendas.
It is worth reviewing the contingency plan and response in the light of the fresh opportunity this action has provided Pakistan and given it an opening, which was closed to it in the last 70 years for reasons which have now been overtaken by events.
The time to act on a solid long term counter strategy is now. I am sure Pakistani policy makers must have thought of this Indian development long before it was materialised by the BJP government on 5 August 2019. I am also sure that a proper response and contingency plan exists as to how the government should move next in rolling out its counter strategy. But it is also worth reviewing the contingency plan and response in the light of the fresh opportunity this action has provided Pakistan and given it an opening, which was closed to it in the last 70 years for reasons which have now been overtaken by events.
London 5 August 2019
*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser for Asia in the Political Affairs Division of Commonwealth Secretariat London (2000-2006).