The Complexity of the Kashmir Issue: “Conflict Can and Should be Handled Constructively

As the recent killings in Handwara underlined, peace, to the detriment of the people, remains elusive in Kashmir. The people of Kashmir have tried, time and again, to translate themselves from passive recipients of violence, legitimated by legislations of the physically and psychologically removed parliaments of India and Pakistan, into subjects who recognize that they can exercise agency and take control of their destinies. They march forward with a refusal to allow history to be imposed on them, and attempt to take charge of their own social and political destinies. The confluence of religious nationalism, secular nationalism, and ethnic nationalism create the complexity of the Kashmir issue.

Over the years, successive Congress governments of the Indian Union may have made attempts to highlight the purported illegitimacy of Article 370, but they have taken no serious measures to revoke it from the Constitution of India. Surprisingly, even the Hindu right-wing BJP, when it assumed power in New Delhi, has so far avoided succumbing to the pressure put on it by its more fanatical cohorts to eradicate the special status enjoyed by the Muslim-dominated state of J& K. India’s policy vis-à-vis Kashmir was influenced by other variables. Pakistan’s formal political alignment with the United States of America motivated the Soviet Union, in the 1950s, to overtly support the Indian stance towards Kashmir. The Soviet premier Khrushchev made explicit his government’s pro-India position on Kashmir in 1955, when he belligerently declared in Srinagar, the heartland of the Kashmir Valley:

The people of Jammu and Kashmir want to work for the well-being of their beloved country – the Republic of India. The people of Kashmir do not want to become toys in the hands of imperialist powers. This is exactly what some powers are trying to do by supporting Pakistan on the so-called Kashmir question. It made us very sad when imperialist powers succeeded in bringing about the partition of India. . . . That Kashmir is one of the States of the Republic of India has already been decided by the people of Kashmir. (Jain 1979: 15–20)

The explicit political support of the Soviet Union in the Cold War era bolstered Jawaharlal Nehru’s courage, and, in 1956, Nehru reneged on his earlier “international commitments” on the floor of the Indian parliament.

He proclaimed the legitimacy of the accession of Kashmir to India in 1947, which ostensibly had been ratified by the Constituent Assembly of J & K in 1954. Nehru’s well thought-out strategy was deployed in full measure when the Soviet Union vetoed the demand for a plebiscite in Kashmir made at a meeting of the UN Security Council convened at Pakistan’s behest (see Das Gupta 1968). It was in 1953 that Pakistan initiated negotiations with the USA for military assistance. Bakshi Ghulam Mohammad protested that “America might arm Pakistan or help her in any other way but Kashmir will never form part of Pakistan” (The Hindu Weekly Review, 1953). Nehru vehemently warned Pakistan and the US that, “it is not open [to Pakistan] to do anything on Kashmir territory, least of all to give bases” (Indiagram 1953). He expressly declared that the agreement between him and the Government of Pakistan regarding the Kashmir issue would change if Pakistan received military aid from the US (Nehru’s speech in the Lok Sabha, 29 December 1953).

Subsequent to the disintegration of the Soviet Union, India lost its powerful ally (Kodikara 1993). India’s relations with the US reeked of distrust and paranoia at the time. This worsened when senior officials in the first Clinton administration questioned the legality of the status of Kashmir as a part of the Indian Union (Battye 1993). The nonproliferation agenda of the US in South Asia actively undermined India’s proliferation strategy in the early and mid-1990s (Perkovich 1999: 318–403).Washington’s agenda was propelled by the fear that South Asia had burgeoning potential for a nuclear war in the future (see “Prepared Statement by John H. Kelly, assistant secretary for Near Eastern and South Asian Affairs before Subcommittee on Asian and Pacific Affairs, House Foreign Affairs Committee”). Pakistan’s overt policy of abetting fanatical Islamic elements in Kashmir and Afghanistan led to its political insularity and seemingly legitimized India’s proactive approach. The US adopted the policy of persuading both India and Pakistan to actively participate in the nonproliferation regime by agreeing to comply with the Comprehensive Test Ban Treaty (CTBT) and to an interim cap on fissile-material production (“Interview with Strobe Talbott,” The Hindu, 14 January 2000).

Human Rights Violations during the Insurgency

The insurgency in J & K, which has extracted an enormous price from the people of the state, was generated by the systemic erosion of democratic and human rights, discrimination against the Muslims of the Valley, socioeconomic marginalization, relegation of the right to self-determination to the background, etc. While the rebellion may have been incited by India’s political, social and economic tactlessness, it has been sustained by military, political, and economic support from Pakistan. Proponents of the independence of the state of J & K are just as stridently opposed to Pakistan’s administration of “Azad” Kashmir as they are to India’s administration of J & K. During the ongoing insurgency, the Indian military has been granted a carte blanche without an iota of accountability. In a telephone conversation I had (on 21 April 2008) with the chairman of the breakaway faction of the Jammu and Kashmir Liberation Front (JKLF), Yaseen Malik, he reiterated his commitment to an independent Jammu and Kashmir. Speaking in favor of an ideology of non-violence, in a tenor that was radically different from the violent rebellion he had espoused in 1988–90, Malik was forthright in condemning the irreverence of the Indian Union towards the aspirations of the people of J & K. He pointed out that Sheikh Mohammad Abdullah had led a non-violent struggle for self-determination from 1953 to 1975, to no avail. During that period, the Indian Union treacherously employed its institutional powers to gradually defang the Sheikh so that his struggle of mammoth proportions could be pummeled into a much-weakened substitute. In the spirit of Kashmiri nationalism, the JKLF keeps the revolutionary flames of the Plebiscite Front (PF) alive, the movement spearheaded by Abdullah and Mirza Afzal Beg, Malik said. Foregrounding the ugly side of Indian democracy, Malik pointed out that his espousal of non-violence has only won him more brickbats from the purported upholders of democratic processes in the Indian Union. Although he declared a unilateral ceasefire in June 1994, he and his comrades have been persistently harassed, tortured and brutalized. He observed that from 1988 onwards the political sentiment of the majority of Kashmiris has been concretized through immeasurable sacrifices made by the people. Most families in the Valley have lost at least one member, been uprooted or dispossessed.

Custodial disappearances and deaths continue to occur, and official orders regarding the protection of detainees are brazenly rubbished. While condemning the impunity with which paramilitary forces and the police conceal the illegal, malicious or premeditated killing of a detainee, the then acting chairperson of the State Human Rights Commission observed:

The growing incidences of torture and death in police custody have been a disturbing factor. Experience shows that the worst violations of human rights take place during the course of investigation, when the police, with a view to secure evidence or confession, often resort to third-degree methods including torture. It [the police] hides arrest either by not recording the arrest, or terming the deprivation of liberty merely as a prolonged interrogation. (“Eleven Policemen Indicted for the Custodial Murder of Two Civilians,” Greater Kashmir, 20 March 2008)

The Jammu and Kashmir Public Safety Act (1978), permits law-enforcing agencies to detain a person for up to a period of two years on grounds of vaguely defined suspicion. The Act, which was implemented when the political situation in the state was precarious, originally stipulated that a detainee could be kept in custody for up to a year without being formally charged if public order was in jeopardy, and for upto two years if the security of the state was jeopardized. A modification to the Act in 1990 made it non-obligatory for the authorities to provide the detainee with reasons for his/her arrest. The discriminatory nature of this Act undermines efforts to discover the whereabouts of such persons (Human Rights in Kashmir 1994).

Another equally stringent measure was the Terrorist and Disruptive Activities (Prevention) Act 1987, which was designed to forbid terrorist acts. In the zeal of the moment, the Act defined disruptive activities in the following words:

any action, whether by act or by speech or through any other media or in any other manner, which questions, disrupts the sovereignty or territorial integrity of India, or which is intended to bring about or supports any claim for the cession of any part of India or the secession of any part of India from the Union. (Section 4, as quoted in Human Rights in Kashmir 1994)

This rather high-handed definition was a violation of the freedom of speech. Under the Act, two special courts were established, in Srinagar and Jammu, to try arrested persons.

The Armed Forces (Jammu and Kashmir) Special Powers Act was enacted in 1990, giving the Union government in New Delhi and its representative in the state, the Governor, the authority to arbitrarily declare parts of J & K “disturbed area” in which the military could be willfully deployed to quell legitimate political activity. The military was entitled to shoot to kill, which involved “a potential infringement of the right to life” (ibid.). The introduction of other severe laws by the Government of India has made it further non-obligatory to provide for any measure of accountability in the military and political proceedings in the state. Despite these highly discriminatory and unpopular measures, the support enjoyed by some of the militant organizations in the early 1990s abated by the mid-90s. Balraj Puri (1995: 78) points out that the mushrooming of militant organizations, the disarray within their ranks, disagreements regarding their ultimate objective, and Pakistan’s vacillating attitude toward the insurgents contributed to the steady decrease in their verve and influence.

Human Rights Violations in Areas under Pakistani Control

While strongly conveying its disapprobation of the treatment meted out to the Northern Areas by the Government of Pakistan, the Human Rights Commission of Pakistan reported, in its monthly newsletter in January 1994, that:

The government of Pakistan governs the Northern Areas (NA) through the Kashmir and Northern Areas Division (KANA). Authority behind KANA has remained vague. The executive head is the chief commissioner appointed by KANA and only answerable to it. The place is totally under bureaucratic rule. There is no industry in NA. The Judicial Commissioner does not have writ jurisdiction and, as the people of the NA do not have any fundamental rights, the Judicial Commissioner does not have jurisdiction to enforce them. The Judicial Commissioner has no say in the appointments and the transfers of subordinate court judges, which are done by the KANA division. The people of the NA have no say in what laws should govern them. The KANA exercises the powers of the provincial government for the NA, and by notification extends laws of Pakistan and such amendments as it thinks fit to the NA. Entrusting such absolute legislative powers to a government functionary is not without its share of hardships. By a notification, Order 39 of the Civil Procedure Code was amended, taking away the powers of the civil courts to grant temporary injunctions against the government. By another notification, the Speedy Trial Courts Act, 1992 was made applicable to the NA with the amendment that in appeals from the trial court, any differences of opinion between the two judges of the Appellate court will be settled by the chairman of the court. Such arbitrary application of laws is particularly unfair because not only do the people have no forum to protest against or amend these laws, but also because the courts have no writ jurisdiction, nor do the people have any fundamental rights. Thus such laws cannot be tested for their legality and reasonableness for violation of fundamental rights. The Northern Areas Council is headed by the minister of KANA and meets whenever called by the minister. The members cannot convene a meeting. The orders require that a meeting of a Council should be called every two and half months, but in practice the minister does not convene one for months. The Council in any case has no power. It cannot form a government, cannot legislate, and has no say in the administration. It cannot suggest development schemes. The main function of the Councilors, as a cynic said, is receiving dignitaries from Pakistan. The police in the NA has no prosecution of crime branch nor a forensic laboratory. No newspaper is published within the NA. There are few local language weeklies and monthlies, but they are printed elsewhere. It has even given rise to the occasional rumor that the government itself pays the Ulema [Islamic clergy] to start the clashes. With very low literacy, extreme poverty and no organized political activity, it is not surprising that the Ulema have acquired such a strong hold over the people. No judicial enquiry has been held into the clashes in 1992, and no compensation paid to the heirs of the person killed or for properties damaged.

The remorseless militarization of the region, ecological and economic plunder, negation of legal procedures, lack of infrastructure, and virtual erasure has fuelled the hitherto restrained resentment and anger in the Northern Areas. It is ironic that pro-Pakistan separatist groups in the Kashmir Valley gloss over the arbitrary exercise of authority in the NA, and glibly declare that these areas chose their geographical and political affiliation, legitimizing the lack of fundamental rights and the unaccountable authority of the KANA.

Military Crises and Diplomatic Rapprochements

During the last decade, each military crisis between India and Pakistan has been followed by attempts at diplomatic rapprochement, which have turned out to be fiascos. The two countries go through sporadic peacemaking efforts, characterized by negotiations. For instance, in January 2004, the then Indian Prime Minister, Atal Behari Vajpayee, and the then Pakistani President, General Pervez Musharraf, agreed “to the resumption of a composite dialogue” on all issues “including Jammu and Kashmir, to the satisfaction of both sides.” Musharraf assured the Indian government that he would not permit “any territory under Pakistan’s control to be used to support terrorism in any manner” (“Text of PM, Musharraf Statement,” The Hindu, 6 January 2004). But this joint statement could not mitigate the existing skepticism:

Many observers have interpreted the joint statement as a tacit admission of Pakistan’s past support for the LOC in Kashmir and an indication of its resolve to finally end military confrontation over the dispute. However, there is also considerable skepticism in India on the nature of change in Pakistan’s policy: is it tactical or strategic? Similarly, the Pakistani government fears that India is taking unfair advantage of Islamabad’s restraint to consolidate its political and military grip over Kashmir. (Kampani 2005: 179)

Pakistan won the disapprobation of international powers by adopting the policy of fighting proxy wars through radical Islamist groups, which has reinforced New Delhi’s confidence that the internationalization of the Kashmir dispute would not get unwieldy. India also believes that the restraint it exercised during the 1998 nuclear tests has given it the reputation of a responsible nuclear power.

Despite international pressure, the India–Pakistan crisis has not been defused; on the contrary, it is highly volatile. Given their interests in South Asia, Russia and China have expressed their concern about the brinksmanship between the two countries. In order to facilitate a rapprochement, President Vladimir Putin of Russia offered to play the role of mediator between then Indian Prime Minister Vajpayee and then Pakistani President Musharraf at the scheduled regional summit conference in Almaty, Kazakhistan. Both Putin and the then Chinese President, Jiang Zemin, held talks with Vajpayee and Musharraf in order to create a space for political negotiations. But the two heads of government continued to remain aloof and uncompromisingly condemned each other’s belligerence. The one positive outcome of the summit talks, however, was the proposal of the Indian government for joint patrolling of the Line of Control (LOC) by Indian and Pakistani forces. But the Pakistani government was quick to reject this proposal and expressed the requirement for building a third-party force instead. Subsequently, the lethal and hitherto readily adopted practice of maneuvering a dangerous situation to the limits of tolerance mellowed, due to Vajpayee’s and Musharraf’s judicious approach to nuclear warfare. But the simmering grievances between India and Pakistan, and the distress of the Kashmiri people remained unredressed.

A dozen or more summit conferences have been held between the government heads of India and Pakistan toward the resolution of the Kashmir problem, from Nehru-Liaquat to Vajpayee-Musharaf meetings, laced in between with Soviet-American interventions, and a series of meetings between foreign ministers Swaran Singh and Zulfikar Ali Bhutto, but nothing worth reporting was ever achieved, primarily because the people of J & K were never made a part of these parleys. The only silver lining to this huge cloud of failures was the signing of the 1952 Delhi Agreement, signed between two elected prime ministers, Nehru and Abdullah. As a viable beginning to a lasting resolution, it is high time that Article 370 and the 1952 Delhi Agreement are returned to in letter and spirit. The political logic of autonomy was necessitated by the need to bring about socioeconomic transformations, and so needs to be retained in its original form. Until then, opening up of trade across the LOC, which still has a lot of loopholes, and enabling limited travel would be cosmetic confidence building measures. Until the restoration of autonomy as a beginning, even the people oriented approach adopted by the then Vajpayee-led NDA government and Musharraf’s four-point formula would remain merely notional. A strong and prosperous India is a guarantee to peace in our region, but a stable and prosperous Pakistan would strengthen that guarantee. So gloating over the instability in either one of these countries serves no purpose and proves detrimental to peace in our part of the world. The goal should be to find a practical solution to the deadlock that would enable preservation of peace in the Indian subcontinent, while maintaining the honor of everyone concerned.

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Nyla Ali Khan is the author of Fiction of Nationality in an Era of Transnationalism, Islam, Women, and Violence in Kashmir, The Life of a Kashmiri Woman, and the editor of The Parchment of Kashmir. Nyla Ali Khan has also served as an guest editor working on articles from the Jammu and Kashmir region for Oxford University Press (New York), helping to identify, commission, and review articles. She can be reached at nylakhan@aol.com.

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