A critique of AG Noorani`s `Kashmir Dispute 1947-2012`

  • By Mohan Krishen Teng
  • August 2013
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During the last 65 years of the Indian freedom, there is nothing that has not gone wrong in the way India has dealt with Pakistan and the Muslims of Jammu and Kashmir. This is the gut feeling a reader gets after going through AG Noorani’s two-volume The Kashmir Dispute 1947-2012.

Noorani, a senior advocate of the Supreme Court and a constitutional expert, is the celebrated author who has written on myriad themes, including Islam and the constitutional history of Jammu and Kashmir. The book is so interwoven in its organization that the reader is often lost in deciding where to stop to ponder over what the author has written.

Written well in connected episodes, miles apart from each other, the study seeks to convey the message that justice should have been done to the Muslims of Kashmir in 1947 and in later years, and since it was not done either in 1947 when Pakistan claimed the State of Jammu and Kashmir on the basis of its Muslim majority population, and ever after, because India refused to fulfill its pledge to the Muslims of the State, Muslims in Pakistan, the British and the United Nations, the time had come for justice to be done now.

Men in India (the greatest, noblest and most patriotic), and men outside India who understood the pain of Muslims in Kashmir, have been quoted profusely to tell the Indian people of the wrong done to Muslims of Jammu and Kashmir, whose only fault was their quest for freedom. The author has been candid in spelling out the content and character of the freedom the Muslims in Kashmir sought, and without reserve or compunction emphasizes that the freedom sought by Muslims in Kashmir was not necessarily the freedom that the people in India had fought for, but a freedom which enabled them to satisfy their Muslim identity.

As a lawyer, Noorani has experience arguing in court where the rules which govern the proceedings are clear and the boundaries of the law are drawn permanently and without variations. Perhaps conscious that the objectivity that lies behind every adjudication of a legal case is arbitrarily determined, he has followed a course where he seems to have presumed that so far as the future of Jammu and Kashmir was concerned and the freedom its people had a right to, was to be determined only by the British and the Muslim League, while the people of India and the non-Muslim people of Jammu and Kashmir had no right to interfere.

Noorani leaves a keen student of history and politics, not to speak of experts, with the feeling that he has transgressed into a field where he himself is a stranger. In the dynamics of history and the variables which govern the course of political sociology, historians do not make history. They only record its course and events and describe the forces behind the reality. There is a method in all historical processes and a method in all political development. For Hitler the invasion of Russia was a historical necessity. Nazism was an ideology and Germany an ideological state. So was Italy and Japan. Japan struck Pearl Harbor out of historical necessity. That they would be defeated is a matter of the course the Second World War took. Historical facts cannot be manipulated.

The century before the Second World War saw a worldwide movement for decolonization, when the flag bearers of the Concert of European imperialist powers manipulated history to serve their power interests. The British called India a geographical expression. So did the Muslim League. Both batted for the perpetuation of the British Empire in India. They realized that India was a nation, the expression of a six-thousand year old civilisational grid, an incredible continuity of history and a stunning expanse of civilisational frontiers, when they faced revolt in 1942, naval mutiny in 1946, and the dogged resistance the State Army of Jammu and Kashmir offered to the invading Pakistanis for five days till the Indian Army arrived in Srinagar.

History is relentless. It doesn’t forgive; it doesn’t forget. Noorani has written these tomes to rationalize Muslim separatism in India, of which the Muslim separatist movement of Jammu and Kashmir is a part. Jinnah agreed with the Congress leaders so long as they professed faith in an Indian destiny within the British Empire. Why should the Muslim League have taken birth in 1906, when the Swaraj and Swadeshi resolutions of the Indian National Congress were adopted the same year?

Why did Sir Mohammad Iqbal, in his presidential address to the Muslim League session at Allahabad in 1930, call for a Muslim confederacy in the North-West, North-East, the north and south of India, after the Congress adopted the Purna Swaraj Resolution in early 1930? Why did Jinnah threaten Gandhi to non-cooperate with the Congress if Congress extended its movement to the princely States and virtually compelled the latter to exclude the States Peoples’ Movements from the national movement, a course which brought Congress to the brink of disaster in 1947? Why did the Muslim League adopt the Lahore Resolution for Pakistan in 1940 when the British were fighting with their back to the wall? Had the League realized that the end of British Empire in India had come?

Jinnah was no votary of Indian freedom from British rule, nor did he visualize a united India. When he insisted upon the lapse of paramountcy, he envisioned Pakistan spread across the whole of India, with its mainland constituted of the Muslim majority areas of British India in north-east and north-west and pockets of its territory constituted of Muslim majority States and Muslim ruled States, interspersed among the provinces and the acceding States of the Indian Dominion.

Perhaps Noorani is unaware that Jammu and Kashmir was geographically a part of northern India and not the North West of India. It formed the central spur of the frontier of India in the north, which is crucially important for the unity of India and the security of its entire northern frontier. Only a small part of the borders of Jammu and Kashmir were contiguous to the borders of Pakistan in the south and north-west. A larger part of the border of the State stretched along the borders of Afghanistan, mainly Wakhan Valley, Chinese Sinkiang in the north-east and Tibet in the east, with a long border contiguous with East Punjab in the south and the Punjab Hill States in the north-east.

The much maligned Radcliff Award, did not do anything wrong in its Boundary Award. Sir Radcliff was not a British politician, and contrary to the League’s fond hopes that he would follow British bidding, he did not do so. Pathankot, the largest tehsil of Gurdaspur district, was predominantly Hindu and could by no stretch be included in West Punjab. Contrary to the figures quoted by the author, Gurdaspur had a minimal 0.8 per cent Muslim majority. The Boundary Commission did not follow district boundaries as the basis of the demarcation of the dividing line between West Punjab and East Punjab. The author appears completely ignorant of the fact that besides the Jhelum valley road connecting Srinagar with Rawalpindi, a railway link connected Jammu with Sialkot and a tarmac road ran along the railway line, connecting Sialkot with Jammu. He seems unaware that a cart-road, improvised by the ruler of the State, stretched between Jammu and Madhopur in Pathankot, over which transport moved without any difficulty, taking only few hours to travel from Jammu to Madhopur.

The author takes a reverse position on the basic fact that neither the partition of India nor the lapse of paramountcy created a prior right for the Muslims of Jammu and Kashmir to opt for an alternative to accession to India, independence or accession to Pakistan. His assertion that Hari Singh intended to assume independence is a total surmise and travesty of history. Mountbatten flew to Srinagar in the third week of June, not more than two weeks after the June 3 Declaration of 1947, and shook the Maharaja out of his wits by advising him to come to terms with Pakistan.

Hari Singh used stratagem to send the Crown Representative back to the Indian capital, empty handed. Accession to Pakistan was the last act he was prepared to perform. Hari Singh was not the man to have misunderstood Mountbatten, who warned him against any attempt to assume independence. In fact there is not the slightest of hints or pronouncements on record to suggest that Hari Singh intended to assume independence. Four personal emissaries of Jinnah met Hari Singh secretly, and to each he said he would take a decision by himself and keeping in view the interests of his people. Ram Chand Kak, a confidant of Hari singh, acted as his interface with the Muslim League and his strategy worked to save the State from being plunged into civil war during the crucial months between the June 3 Declaration and the date of transfer of power.

Noorani has conveniently omitted to mention and discuss the implications of the proclamation of a “Provisional Government of Azad Kashmir” by the Muslim Conference leaders and cadres at Tradkhel in Mirpur on 28 August 1947, only thirteen days after the transfer of power in India. After proclamation of the “Provisional Government of Azad Kashmir”, anti-Hindu riots spread across Muslim majority districts of Jammu province bordering Pakistan.

Facts of History cannot be bent to rationalize political events or influence their course. The partition was foisted on the people of India by the Muslim League with the support of the British. The opinion of the people of India was not elicited on the partition; had it been referred to them, they would have rejected it and Pakistan would have never come into existence. The lapse of paramountcy was also foisted on the people of the States, and when the Congress leaders beseeched the Muslim League leaders and the British to seek the opinion of the people of the Princely States about the right to determine their future, Jinnah and Mountbatten refused to listen to Congress entreaties.

Had the people of the States been accorded the right to determine their future, the crisis which overtook Junagarh, the war in Hyderabad and Jammu and Kashmir would never have happened. In Jammu and Kashmir, the Hindus, Sikhs and Buddhists, constituted nearly 28 percent of the population and with Kashmiri speaking Muslims formed two-thirds of the population of the State.

The Kashmiri-speaking Muslims were dead against accession to Pakistan because they had opposed the Muslim League struggle for Pakistan. They knew their dreams of freedom would be scuttled if the Muslim Conference, supported by non-Kashmiri-speaking Muslims of Jammu province, came to power in the State if it acceded to Pakistan. It is a misnomer that the accession of the State to India was brought about with the support of Muslims alone. In fact it was because of the Hindus, Sikhs and Buddhists along with Kashmiri-speaking Muslims that the accession of the State to India was brought about.

During the invasion of the State by Pakistan, the Hindus and Sikhs formed the frontline of defense in the provinces of Jammu and Kashmir and the Buddhists in the frontier division of Ladakh. In Ladakh, the Buddhists kept the invaders at bay under the leadership of the legendary soldiers Captain Pirthi Chand and Captain Thapa. The left flanks of the National Conference largely constituted of Hindus of Kashmir amongst whom were ideologues of the National Conference and veteran freedom fighters in Jammu and Kashmir. Niranjan Nath Raina Saraf, Pran Nath Jalali and Omkar Nath Trisal defended Srinagar. The National Conference rank and file brought up the rear of the resistance. Nearly 40,000 Hindus, Sikhs and Buddhists were killed in the invasion. More than 10,000 Hindu, Sikh and Buddhist women were abducted by the invading hordes and those who escaped death were driven out of the territories that the invaders overran. The refugees of the territories occupied by Pakistan, Hindus and Sikhs, a million people, live in Jammu on the Indian side of the Line of Actual Control, still awaiting rehabilitation.

Noorani’s arbitrary premise that the Kashmir dispute revolves round the freedom of the Muslims living on the Indian side of the Line of Control, is only a half truth. The whole truth is that the Kashmir dispute revolves round the freedom of the Hindus, Sikhs and Buddhists of the State, a population of four million, easily comparable with the six million Muslims living on the same side. The dispute also revolves round the future of nearly two million Hindu and Sikh refugees, who form nearly half of the population of the Hindus, Sikhs, and Buddhists of the State. Among them are more than a million refugees from the territories occupied by Pakistan, half a million Hindus of Kashmir (Kashmiri Pandits and non-Kashmiri Pandit Hindus who were driven out of Kashmir province by the jihad launched by Pakistani jihadi war groups operating from that State, the militant regimes and the Muslim separatist forces in Kashmir); Hindus driven out from their land and forced to take refuge in Jammu, and the Hindu and Sikh refugees driven out of the border areas of Jammu province from time to time, besides the Hindus of the Muslim majority areas of Jammu province driven out of their homes and hearths by the jihad as it spread into Jammu province in 1990, and after.

The Kashmir dispute also revolves round the territories of the Jammu and Kashmir State which are under occupation of Pakistan. They constitute parts of the province of Kashmir and the province of Jammu and the Gilgit-Baltistan regions of the frontier divisions of Ladakh along with the Dardic Dependencies of the State, Hunza, Nagar, Punial, Yasin, Ishkoman, Darel and Koh Gizir, which formed the part of the Jammu and Kashmir State and constituted the strategic outer flanks of the western horn of the northern frontier of the State and the northern most outposts of the British Empire in India.

The occupied territories are an integral part of the Indian state of Jammu and Kashmir, which were invaded by Pakistan against all tenants of international law as reported by the United Nations Commission for India and Pakistan, and accepted by the Security Council. The Security Council resolution envisaged evacuation of the occupation forces from the occupied territories before the bulk of the Indian forces would begin to withdraw. The restoration of the administrative control of the occupied territories to the State Government was a precedent condition for the induction of the United Nations Plebiscite Administration into the State. The author’s claim that the bulk of Indian forces were to commence evacuation when the occupation forces were nearing completion of their evacuation, virtually suggesting that the evacuation of the occupation forces was proposed to be concurrent, is a gross distortion of facts. The United Nations documents and the Indian correspondence in this regard are unambiguous and leave no room for such misinterpretation that the author has attempted mainly to prove that India was on the wrong foot.

Pakistan and the Western powers dragged the Kashmir issue into the Cold War because the West needed to turn Gilgit-Baltistan into an advance military post in the policy of containment of communist influence in Asia. Pakistan sought to turn UN intervention in Jammu and Kashmir into an instrument to destabilize the part of the State on the Indian side of the ceasefire line, to put India on the defensive and consolidate its hold over the territories under its occupation.

Britain and its allies in the Security Council shifted their basic stand to push India to accept the induction of a Plebiscite Administration while the invading forces remained in the occupied territories along with Muslim militia of 30,000 men raised in the occupied territories by Pakistan. The Indian leaders were persuaded to allow Pakistan retain a part of its forces, about one third of the forces that India retained in the State. The agreement fell through because the United Nations military mediators tampered with the figures of the quantum of troops to be retained by the two armies in the State, forcing India to stall the agreement; the fiasco came to be known as the notorious “Delvoi Affair”.

Neither Pakistan, nor the British and their allies were interested in an impartial plebiscite. They were interested in enabling Pakistan to swallow the occupied territories and use them as a springboard to dislodge India from the rest of the State, establishing their hold on the Shivalik plains west of river Ravi. In the post war configuration of power in Asia, the whole stretch of Kashmir valley, the rugged mountain fastnesses of the Pahar and Jhupal regions of Jammu province and the Shivalik plains stretching to the west of the river Ravi assumed strategic importance they never had earlier, even in the days of the Great Game. For India, Jammu and Kashmir was central to the defense of its northern frontiers and its strategic interests in the Sanskrit Himalayas.

The stand taken by Britain and her allies in the Political Committee of the UN General Assembly in the debate on the Tibetan complaint against the Chinese aggression delivered a severe blow to Indian leaders about Asian solidarity. Nehru ducked for some time under the shield of Panchsheel. But he learnt a bitter lesson when the Chinese repudiated the McMahon Line. In the post Cold War balance of world power, India cannot go the way Noorani apparently suggests. All demands for separate freedom, for whoever they are made, conflict with the unity of India.

It must be understood by all Indians that the British divided India to create a Muslim power on the subcontinent to safeguard their own interests in and around India. The Indian people, the people of British India and the people of Indian princely States, were not retainers of British colonial rule in India. They had fought for a united India and its independence. The League leaders lost bitter time to smother into submission all the princely States within the territories demarcated for Pakistan, some like the State of Kalat, against the wishes of their rulers and people. Why would the Indian people allow Pakistan to grab Jammu and Kashmir, which would have demolished the entire northern frontier of India?

The Indian princely States were placed outside the partition of India and virtually detached from British India by the lapse of British paramountcy, which like the partition of India was foisted upon the people of the Indian States by the Muslim League and the British against their will and against the remonstrations of Congress leaders. The partition of India did not remotely create any prior right for Pakistan to claim the State of Jammu and Kashmir on the basis of its Muslim majority population. Muslim League leaders, whether still in India or not, could not question the right of the Indian people to unite the remaining parts of the British India and the Indian States within its territories and contiguous with Indian borders, to undo the wrong done to them by foisting the partition and turning down the entreaties of the Congress and the All India States People’s Conference to recognize the right of the people of the States to determine their future.

The author notes at the outset in his book, “A plebiscite in Kashmir was a moral imperative, besides being a democratic imperative.” If plebiscite was a moral imperative and a democratic necessity in Kashmir, was it not a moral imperative and a democratic necessity to not force partition on the people of British India? Was plebiscite in the princely States not a moral imperative and a democratic necessity when the lapse of paramountcy was imposed upon the people living in the princely States? Was plebiscite not a moral imperative and a democratic necessity to determine the future disposition of the States?

Pakistan was not created in accordance with any moral imperative and its creation was not a democratic necessity. Had Pakistan not been created, the people of the 562 States, including Jammu and Kashmir and Hyderabad and Junagadh would have united with India and repudiated princely rule.

Partition was a political maneuver in which the Muslim League and the British were partners with the intention to Balkanize India and reduce it to a geographical expression. For the Indian people it was a moral imperative and democratic necessity to unite whatever was left of India after partition, without any consideration of whether any use of force was involved. They had to defeat the designs of the Muslim League and the British. Had they faltered, they would have been defeated.

Jammu and Kashmir was crucial to their efforts to recreate a united India. Noorani rightly points out, “Truth to tell, India and Pakistan launched a cold war even while they were in the embryo of history.” The bitter truth is that Pakistan launched an offensive right from the time the partition plan was accepted to balkanize India and recommence the process of a second partition of India by seeking to support Muslim separatism in Jammu and Kashmir.

First published click here to read.

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