By Syed Sharfuddin*
Executive Summary
Contrary to the general feeling in Pakistan that India’s unexpected action of 5 August 2019 has sealed the fate of the Indian Held Jammu and Kashmir (IHK), the move has opened new opportunities for Pakistan and Azad Kashmir, which were not possible to avail prior to 5 August. Rather than copying India’s action in Azad Kashmir or pursuing a military solution, Pakistan should follow a constitutional and democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of democratic steps without going to war with India.
It is time for the Kashmiri People living inside and outside Kashmir to adopt their own ‘23rd March Resolution’ to accede to Pakistan. It is time that Article 257 of the 1973 Constitution is amended by two-third majority of a Constituent Assembly in Pakistan to claim the whole of Kashmir as part of Pakistan. It is time that the Supreme Court of Pakistan allows the Federation of Pakistan to officially name Gilgit-Baltistan as the fifth province of Pakistan using the principle of fundamental change of circumstances. It is time that all this is accomplished swiftly to strengthen the constitutional and legal case of Pakistan on Kashmir before the dust settles and the current most significant development in IHK becomes the new normal in India-Pakistan relations.
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While exposing the hypocrisy of the world’s so called largest democracy in illegally applying the annulment clause in Article 370 of the Indian Constitution to withdraw the special status of Indian Held Jammu & Kashmir, and rushing through a J&K Reorganisation Bill in Rajya Sabha and Lok Sabha on 5 & 6 August respectively to bifurcate J&K into two Union Territories, this action has also highlighted several challenges and opportunities which may have serious implications for peace and security in the Sub-Continent.
Instead of annexation, Kashmir’s accession to Pakistan should follow a democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of steps without going to war with India.
As Pakistan’s Prime Minister Imran Khan said in Muzaffarabad on 14 August 2019, in the event of a breakdown of peace in the Subcontinent, the responsibility for not acting in time to restrain India will rest solely on the shoulders of the peace keeping organs of the United Nations whose mandate includes upholding the rule of international law, protection of human rights of minorities by ethnic cleaning and genocide and maintaining inter-state peace.
Challenges:
India’s illegal action will embolden the hawks in the BJP and act as a cue for Hindu extremists to harass Kashmiri Muslims. They will increase the Indian state sponsored repression on the Kashmiri Muslims with a view to making them flee their homes in the same way as Israel has done to the Palestinians in order to illegally acquire their lands through forced purchases, as well as armed intimidation. The process of ‘Hinduaisation’ of Kashmir will begin with a heavy Hindutwa agenda applied in education, jobs and businesses to the disadvantage of local Muslims.
The Indian State may invite non-Muslim families presently residing in Jammu and Ladakh to move to the Kashmir Valley to change the demography of the present Muslim-majority region. It may also provide financial incentives to those Kashmiri Hindus who left Kashmir in the past decades to return to the Valley and settle there in order to change the numbers of Kashmiri population.
The action of BJP Government on 5 August 2019 in regard to the State of Jammu and Kashmir has changed the seventy-year old status quo on the disputed territory on which India and Pakistan have gone to full-scale war twice and exchanged artillery fire on the Line of Actual Control without a single week passing peacefully.
The Indian State many also allow Dalai Lama and his followers to settle in Ladakh to create a buffer between India and China. Although China will not like this resettlement but it won’t be able to do anything about it because after 6 August 2019, Ladakh has effectively become a Union Territory without any legislature. If China does not challenge India’s action in Ladakh, it will mean whatever India does in Ladakh in the future will be its internal matter.
Having swallowed up the Sate of J&K in the Indian Union by repeating the pattern of earlier mergers such as Hyderabad, Junagadh and Manawadar, the Indian State will move next to claim Pakistan’s side of Kashmir, including Gilgit and Baltistan. This will effectively place Pakistan in a defensive position and make it hard to save its own part of Kashmir.
Contrary to the general feeling in Pakistan that India’s action of 5 August 2019 has sealed the fate of Jammu and Kashmir, the abrogation of IHK’s special status by India opens many opportunities for Pakistan and Kashmiris, which were not possible prior to 5 August.
Opportunities
Ironically, India’s action has given a timely opportunity to Pakistan, as well as to the people of Kashmir to revisit their strategy on Kashmir. This was not possible to be done prior to 5 August 2019.
Until now India had used Article 370 of its Constitution to fool those Kashmiris who had co-opted with the Indian State to exercise their autonomous status and have their own Legislative Assembly to enact laws for the people of Indian held Jammu and Kashmir. The withdrawal of the special status of IHK by India on 5 August 2019 has ended the delegated powers which the institutions of the State of J&K enjoyed on behalf of the people. In the absence of an autonomous State and dissolution of their own Assembly under Article 370, these delegated powers have returned back to the people of Indian held Kashmir.
The people of IHK are now free to convene a Grand Congress of Kashmiris living on both sides of the border in any neutral place, such as London, Oslo, New York or Toronto to pass a resolution expressing their political will to reject Indian rule and accede to Pakistan. Such as resolution will be no less historic than the 23rd March resolution of 1940 adopted in Lahore in favour of Pakistan.
Unlike the Indian Constitution, which claims the State of J&K as part of India with its territory immediately before the commencement of the Constitution on 26 January 1950, the 1973 Constitution of Pakistan makes no such claim about J&K, nor sets the boundaries of its territory. The only reference to J&K in the Pakistan Constitution appears in Article 257 which 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.” Of course, this is not a legislative oversight but a deliberate omission by the drafters of the 1973 Constitution to keep the high moral ground on Kashmir for a plebiscite in accordance with UN Security Council’s resolutions and India’s erstwhile promise to the international community to implement these resolutions. But as India’s illegal behaviour subsequently proved, in the ruthless exercise of power morality is never the winner.
The 5th August action by India has ironically opened up a golden opportunity for Pakistan to make a formal claim on J&K in the Pakistan Constitution. Through a Constitutional amendment of two-third majority of both Houses of Parliament, Pakistan can now claim the entire state of J&K, including the territory held by India as the territory of Pakistan just as India has done in its Constitution. Pakistan’s Constitution should also define the territorial limits of the entire State of J&K as has ben done in the First Schedule of the Indian Constitution.
This amendment could not have been possible prior to 5 August 2019 as India would have taken a serious view of it and even regarded it as an unfriendly act worth undoing by force. However, following its own illegal action in IHK, Pakistan is legally entitled to make these amendments in its Constitution and state that while it claims the entire state of J&K as part of Pakistan, the part occupied by India is challenged by Pakistan and will be acquired at an appropriate time which suits its national interest.
Annexation of Azad Kashmir to Pakistan following India’s illegal action in a tit for tat reaction will not only play into the hands of the BJP government’s strategy which may want Pakistan to do just that but it will also seal the fate of Kashmir to a permanent status quo along the line of actual control. It is also possible that President Trump’s offer to Pakistan’s Prime Minister last month for the US to mediate in resolving the Kashmir dispute may have this scenario in mind. Furthermore, annexation is not the answer because two wrongs cannot make a right. Instead of annexation, Kashmir’s accession to Pakistan should follow a democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of democratic steps without going to war with India. These steps are as follows:
Democratic Step 1:
All expatriate Kashmiris living outside India and Pakistan should convene a Grand Congress in a Western country and adopt a people’s resolution asking the Azad Kashmir Government (the only neutral Kashmiri administrative unit left after the annulment of the special status of IHK) to consider their accession to Pakistan as its 6th Province (the 5th Province already decided by the Parliament of Pakistan is Gilgit & Baltistan). Kashmiri leaders inside IHK who are able to travel or send video messages should support the convening of this Grand Congress and even address it electronically from their homes where they are under house arrest, if possible.
The UK will be an ideal location for holding this Grand Congress as a large number of expatriate Kashmiris live in this country and also because the UK was the colonial empire of the Sub-Continent India and Pakistan, which masterminded the messy partition of 1947, including the disastrous decision that Princely States of the Raj will decide their own accession to either India or Pakistan without realising that India could apply double standards to Hyderabad on the one hand and Kashmir on the other. No other country is more aware of the historic injustice done to the people of Jammu and Kashmir than Britain.
There is only a small window of time available to convene the Grand Congress. If it is delayed, the opportunity will be lost and the momentum to drive all sections of the Kashmiris to agree to accession will lose steam. Pakistan should provide moral and logistical support to the Kashmiri expatriates to meet and adopt a resolution addressed to the Azad Kashmir government and its legislature.
It is time for the people of Kashmir to adopt their own 23 March 1940 Resolution to accede to Pakistan
Democratic Step 2:
Following the passage of a resolution by the people of Kashmir meeting to decide their future in a neutral and independent country, the AJK Government should take note of the free expression of the political will of the people of Jammu & Kashmir and adopt a resolution of accession to Pakistan as the 6th Province of the Federation of Pakistan and request President Masood Khan of Azad Kashmir to consent it to and forward their request to the Government of Pakistan.
It is time that Article 257 of the 1973 Constitution is amended by two-third majority of a Constituent Assembly in Pakistan to claim the whole of Kashmir as part of Pakistan.
Democratic Step 3:
Upon receipt of this request from the President of Azad Kashmir, a joint session of Pakistani Parliament should be convened to consider the accession request and declare the whole of J&K, including IHK as the territory and jurisdiction of Pakistan.
It is time that the Supreme Court of Pakistan allows the Federation of Pakistan to officially name Gilgit-Baltistan as the fifth province of Pakistan using the principle of fundamental change of circumstances.
Democratic Step 4:
The Joint Session of the Pakistan Parliament should convert into a Constituent Assembly meeting in a Special Session to amend the Constitution of Pakistan to give effect to the changes required in declaring the whole of J&K, comprising Azad Kashmir and IHK as an integral part of Pakistan. There should neither be an annexation of Azad Kashmir nor any departure from the above steps to ensure that the entire process is democratically followed to its logical conclusion.
It is time that all this is accomplished swiftly to strengthen the constitutional and legal case of Pakistan on Kashmir before the dust settles and the current most significant development in IHK becomes the new normal in India-Pakistan relations.
Democratic Step 5:
In the final step, all countries, including the UN Security Council’s five permanent members should be briefed by Pakistan on the democratic steps taken by Pakistan to ensure that Pakistan’s reaction to India’s illegal annexation of IHK in violation of international law and UN Security resolutions is proportional, peaceful, and in accordance with the wishes of the people of Kashmir and the people of Pakistan as reflected by the decisions taken by their representative bodies.
This should be done before the dust settles and the current most significant development becomes the new normal in India-Pakistan relations.
Also see related article Post August 2019 Status of Jammu & Kashmir and Options for Pakistan
London 7 August 2019
*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser on Asia in the Political Affairs Division of the Commonwealth Secretariat, London from 2000 to 2006.