Kashmir IV: Legal Conflict

There are too many legal issues regarding Kashmir conflict- one can argue forever, and it looks like no pragmatic solution can ever be reached if one were to stick to the legal documents and legal issues. The emotions and sentiments run very high amongst Indians, Pakistanis and Kashmiris; and a debate or a discussion on Kashmir at any level, whether it is UN or a bilateral summit, in a coffee shop or a group debate on TV, turns very passionate and the rhetoric is usually very irrational. Let’s look at some of the arguments here:

A. India considers Kashmir to be an 'integral part' of India, as accepted, ratified and proclaimed by the Constituent Assembly of Kashmir in 1956 and as signed in Kashmir Accord in 1974.

B. BUT, Pakistan considers Kashmir to be 'disputed territory' as inferred from UN resolution of 1948 and as endorsed in Simla Accord of 1972. Pakistan still demands for a plebiscite to decide the fate of Kashmir.

C. BUT, Maharajah Hari Singh, King of Jammu & Kashmir regions, signed a treaty of accession to India in 1947, thereby becoming a part of Indian Union.

D. BUT, he did so in the extreme conditions which were considered special circumstances. A normalcy was to be restored and then a decision had to be made on this accession which never happened.

E. IN ADDITION, Jawaharlal Nehru and Lord Mountbatten promised that they would conduct a plebiscite once the situation becomes normal.

F. BUT, for that to take place, Pakistan had to move back its troops from the regions it occupied in 1947 war and that never happened.

G. INSTEAD, a Constituent Assembly of Jammu and Kashmir took a decision to accede to India in 1952. This is NOT the plebiscite UN envisioned.

H. BUT, that had many clauses including maintaining the autonomous nature of that state.

I. MOREOVER, Pakistan expressed its desire to carry out UN resolution, but the details of implementation never went any further than the discussion tables- mainly because India never wanted to hold that plebiscite fearing loss of whole state to Pakistan.

Present Situation:

A. Pakistan has NOW a desire to hold that plebiscite, and is ready to take any measure for that (including troop withdrawal) only if India takes proper steps to show that India is ready to do the same.

B. BUT, India is clearly aware that such a scenario is awkward for India. It is very clear from the mass opinion, that India would lose the state of Jammu & Kashmir.

C. AND, it doesn't make sense for India to lose the regions of Jammu and Ladakh, which are not interested in any separate country. India has to fulfill its duty towards those people.

D. AND, India believes that UN resolution of 1948 is old and has no place now in the new set of scenarios, especially when so many other new treaties have been signed which make it irrelevant.

E. BUT, Pakistan abhors abandonment of UN resolutions on this issue and it believes the root cause can be solved only by implementing that first resolution.

F. BUT, India believes, with enough evidence to back it up, that Pakistan has meddled way too much in the affairs of Kashmir, and has induced many of its own people into this region illegally, and hence a plebiscite in such a scenario is not acceptable because it would not show the true intent of the people.

G. BUT, Pakistan believes that such a scenario had evolved because of unfulfilled promises, and hence India has to take blame for it. India cannot ignore the freedom movement being fought over there.

H. BUT, India believes that, if not for Pakistan's involvement, Kashmiri would have loved to be with India, as they did for the prior 40 years (before 1989), and if ever they are fighting for independence now, its because of Pakistan's involvement.

I. BUT, Pakistan believes that it is an indigenous movement, spearheaded by Kashmiri Muslims whose innate desire is to attain freedom from India. They believe it is an incomplete story from partition. And if are foreign mercenaries, it is only because Kashmiris want them.

Demographics issue:

A. Kashmiri Moslems contend that Kashmir belongs to them and hence they have a right to decide where they want to be- with Pakistan or with India or be Independent.

B. BUT, Kashmiri Pandits, who comprised around 10% in 1989 have migrated out of Kashmir valley because an Islamic Insurgency had crept in which threatened their very lives.

C. Given the situation no practical solution can be devised to bring back Kashmiri Pandits to Kashmir Valley (same as no Indian Hindu can be brought back to their homeland in pre-Independence Pakistan)

Kashmir – Demographics in Detail

Kashmir Valley (including India and Pakistan regions) has 6.3 Million population of which 97% are Muslim. The Indian side of Kashmir Valley has 95% Muslim.

According to 1991 Census, the population of Jammu & Kashmir is 11.6 Million. An additional 1.5 Million refugees were in Pakistan (not Azad Kashmir) and 0.5 Million were living other parts of the world. Of this 11.6 Million living in Jammu & Kashmir, 7.3 Million (63%) were living in Indian side of Kashmir while 4.3 million (37%) were in Pakistan controlled Kashmir. The religious composition of Indian Administered Jammu & Kashmir is Muslims 64%, Non Muslims 36%.

The details are given below:

Kashmir valley: (3.80 million) Muslims 95% Non-Muslims 5%
Poonch, Rajori & Doda: (1.18 million) Muslims 65% Non-Muslims 35%
Jammu, Kathua,Udhampur: (2.16 million) Muslims 10% Non-Muslims 90%
Leh District: (0.08 million) Muslims 5% Non-Muslims 85%
Kargil District: (0.08 million) Muslims 8% Non-Muslims 12%

The religious Composition of Pakistan controlled Kashmir is Muslims 100%
Azad Kashmir: (2.50 million) Muslims: 100%
Gilgit, Baltistan: (0.70 million) Muslims: 100%

Kashmiris elsewhere: 1.1 million