Veracity of divergence: The reality of Kashmir

Reporters Club: Recently a talk program was held jointly by the Neeti Anusandhan Pratishthan (NeNap) and National Law College (NaLC) on September 26 in the capital. Titled “Article 370 of the Constitution of India: Perception and Reality” clearing the air on myths and reality of the region and India’s decision to scrap the article and internally restructure the state.

Presenting the audience with vivid historical details Shri Arun Kumar the head of public relations of the Rashtriya Swayamsevak Sangh of India, said that “India’s core problem is Pakistan. According to the treaty of 1972 also known as the Shimla agreement, bilateral matters between India and Pakistan should be resolved through dialogue and negotiation.

Regarding any hassles according to the treaty, the matter first has to be deliberated and they cannot approach the UN in this regard. But time and again instead of dialogue and deliberation all India got in return were violent acts of terrorism on its soil”.

While the entire world has celebrated the landmark decision of India to ensure the rights of the people of Kashmir, it is uncertain why Pakistan is in opposition because the matter is an internal Indian affair.

Shri Arun Kumar has lived in Kashmir for over 15 years and he understands the complexity and reality of the situation right from the grass root. In this program, he provided a detailed background regarding what Kashmir was, and that is currently there is an illusion unnecessarily created by the media regarding the Kashmir scenario and it was important to bring the facts out”.

(Shri Arun Kumar the head of public relations of the Rashtriya Swayamsevak Sangh of India)

The entire presentation can be seen in three different portions, geography and people, constitutional provisions and remedies, and the current issues and divergence, or the veracity of divergence.

Geography and People

In the presentation, Shri Arun Kumar started by speaking on the geographical complexity of the region. The princely state of Jammu and Kashmir before India’s independence had four regions, Jammu, Kashmir, Ladakh, and Gilgit. An area covering a total of 222,236 sq. km.

(PoJK, and CoJK in Green and Red respectively)

Pakistan was the main aggressor towards Kashmir occupying areas of Mirpur, Muzzafarabad, Gilgit, and Baltistan, while, China occupied the Shakshgam Valley and Aksaichin.

Pakistan occupied Kashmir consisted of two areas of Mirpur and Muzzafarabad, the area of the Jammu and Kashmir region. Gilgit Baltistan is culturally similar to Kargil. Gilgit Baltistan has seven districts, Hunza, Skardu, Diamir, Sigar, Ghisar, Chanche, Astore, and Gilgit. There were 11000 families that were separated in 1947 from the area of Gilgit-Baltistan. China occupied Jammu and Kashmir took over the Shakshgam Valley in which 36000 sq. km was occupied in the war of 1962.

The first clear stance toward understanding Jammu and Kashmir and its entire region is the geographical and socio-cultural distribution. While many believe that Jammu-Kashmir is only made of Kashmiri Muslims, which is not the case. Only 10 districts or an area of 15000 sq. km are densely populated with Kashmiri Muslims. The area of Ladakh is the largest part comprising an area of 59,000 sq. km which is a Buddhist majority region.

Similarly there are Dogras living in the Jammu area, Gujjars living in Poonch and Rajouri districts of Jammu, Pahadi living in the hilly areas of Jammu and Kashmir, Shina living in Gurez and the valley of Drass, Balti living in Suru valley, Buddhists living in Zanskar, Changthan and Norbra valley, Brokpa living in Batalik or also known as the Aryan Valley, and Noorbakshi living in Nobra Valley (Turtuk Area).

Constitutional Provisions and Remedies

The state of Jammu and Kashmir under the rule of Hindu King Maharaja Hari Singh was given only two options like the other 550 princely states under the India Independence Act. The option was either to join the dominion of India or the dominion of Pakistan, there was no option of remaining independent. Maharaja Hari Singh signed the “Instrument of Accession” on 26th October 1947 and acceded to India. Then Governor-General of India Lord Mountbatten signified the Instrument of Accession on 27th October 1947, making the area of Jammu and Kashmir a part of the Indian union.

(Map of Princely States before partition)

Under the First Schedule, Article 1 of the Constitution of India, Jammu, and Kashmir became the 15th State of the Union of India. Section 3 of the Constitution of Jammu and Kashmir stated: “that the state of J&K is and shall be an integral part of the Union of India”. Similarly, section 5 stated, “that the executive and legislative power of the State extends to all matters except those with respect to which Parliament has the power to make laws for the State under the provisions of the Constitution of India”.

Further protected by section 147 it states ” provided further that no bill or amendment seeking to make any change in, (a) this section or (b) and provisions of sections 3 and 5, or (c) the provisions of the constitution of India as applicable in relation to the State shall not be introduced or moved in either house of the legislature”.

On the other hand, the Constitution of the Islamic Republic of Pakistan of 1973 and onwards, have signified its territories as Balochistan, Khyber Pakhtunkhwa, Sindh, and Punjab belonging to Pakistan, the Islamabad Capital Territory, hereinafter referred to as the Federal Capital and federally administered tribal areas. The constitution of Pakistan does not include neither represents the legality of possession of Jammu and Kashmir.

Article 6 of the Sino-Pakistan Agreement of 1963 states, “that the two parties have agreed that after the settlement of the Kashmir dispute between Pakistan and India, the sovereign authority concerned will reopen negotiations with the Government of the People’s Republic of China on the boundary as described in the Article”. Two of the present agreement, so as to sign a formal boundary treaty to replace the present agreement, provided that in the event of the sovereign authority being Pakistan, the provisions of the present agreement and of the aforesaid protocol shall be maintained in the formal boundary treaty to be signed between the People’s Republic of China and the Islamic Republic of Pakistan.

Under the United Nations charter, the Government of India had made a complaint to the Security Council under Article 35 after the blatant act of aggression by Pakistan. The request to the Security Council was to ask the Government of Pakistan to prevent Pakistan Government personnel, Military and Civil from participating or assisting in the invasion of the Jammu and Kashmir State. To call upon other Pakistani nationals to desist from taking any part in the fighting in the Jammu and Kashmir State, and to deny the invaders, access to any use of its territory for operations against Kashmir, military and other supplies, all kinds of aid that may assist or prolong the present struggle.

The UN Security Council resolution stated that Pakistan to withdraw its troops unconditionally. Disbanding, the Azad Jammu and Kashmir Government as well as the army. It aimed to restore the territorial integrity of Jammu and Kashmir resettling those displaced and forming a plebiscite commissioner. The issue of the plebiscite was unacceptable to India. Pakistan was the main aggressor while Jammu and Kashmir was legally a part of the Indian Union.

The Shimla agreement stated that both India and Pakistan would resolve their issues through bilateral negotiations, and the UN Charter states, “if two contesting States concluded a bilateral agreement by virtue of which Peace and normalcy are restored and the agreement is ratified by respective Parliaments, the role of the Security Council comes to an end”

Considering various hurdles and the inability of negotiations while facing continuous aggression, temporary provisions through Article 370 was made in order to extend the constitution of India in the area, and it has been done so 54 times through various orders.

Veracity of Divergence

Article 370 was abused along with the addition of 35A which gave added powers to the state of Jammu and Kashmir to define “permanent residents” of the state and provide special rights and privileges to those permanent residents”.

The victims were the Valmiki Samaj, refugees from West Pakistan, the Women of the state and the Gorkha soldiers. Further problems that incurred were discrimination of the Scheduled Castes, the mismanagement of the State government while not implementing provisions of the Indian constitution, extremely poor investment by the Private sector, and massive discrimination towards the regions of Jammu and Ladakh. 10% of federal funds that were granted to the state were always misused, unaccounted for, and embezzled.

The divergence further continues toward numerous attacks on the Indian soil, displacing people living in the border areas, over 300,000 Kashmiri Hindus were displaced and many were killed, along with thousands of civilians that have lost their lives since 1988 due to various terrorist activities as a result of religious radicalization. Pakistan attacked India on numerous occasions since 1947, 1965, 1971, and 1999 also known as Kargil War. They have continued supporting extremists and radicals on the border areas since 1986.

According to the South Asia terrorism portal, 5236 security personnel have been martyred, while 25, 715 terrorists have been killed since the year 2000. While in this 2 decades of the 21st century, 70,000 firearms and 8947.49 kg of explosives and 6871.6kg of RDX have been recovered.

Social media has falsified the scenario of Kashmir along with misinformation, maligning the image of the area, and creating further radicalization by glorifying terrorists. Continuous provocation is on the rise through various tactics used on multiple social media platforms.

Therefore it was necessary for India to act, and bring the region into its direct control to have a uniform law which will enable every citizen in order to have equal rights and opportunities provided in the Constitution of India. It also required the state of India to have zero tolerance towards terrorism, exposing Pakistan on the International front, and for better governance reorganize the area into two union territories for effective management and extending administration. A futuristic plan of development, investment and partnership are underway which will materialize in the days ahead.

Speaking at the program the Ambassador of India Manjeev Singh Puri lauded the presentation which was factual providing vivid details. He also said that “it was necessary for India to scrap article 370 in orders to bring peace and prosperity in the region of Jammu and Kashmir, and that this decision will make a positive impact on the lives of the people there. Jammu and Kashmir is an integral part of India, it is clearly stated in the constitution of India, it has been ratified by a resolution by the United Nations Security Council. The people have continuously suffered from various acts of terrorism from across the border. Every individual there wants peace and prosperity, that is what India will provide for in the region in the days to come” he said.

(H.E. Shri Manjeev Singh Puri Ambassador of India) 

Speaking at the same program Dr. Ram Krishna Timilsina stated “it is crucial for Nepal to speak in support for India’s actions, as we are close neighbors, and there are many people of Nepali origin living in the area. India is our closest neighbor and it is our duty to support them. The area of Jammu and Kashmir has always been a part of India and always will be, there is no doubt regarding that”.

(Dr. Ram Krishna Timilsina)

Director of NeNap Dr. Deepak Kumar Adhikari had welcomed the guests and the program began with his introduction on the subject.

(President of NeNAP Ms. Nalini Gyawali)

Towards the end of the program which also included a brief round of Q&A among the guests and visitors, the President of NeNap, Ms. Nalini Gyawali presented the vote of thanks.

(Image Courtesy: NeNAP, Mukunda Kalikote, Dr. Dipesh KC, compiled and written by Birat Krishna Thapa )