Proposed Solutions for a Better Tomorrow: A Legal Analysis of the Kashmir Issue
One might be faced with a mind boggling number of negative connotations when Indo-Pak relations are spoken of. A scenario associated with war, terrorism, and the loss of lives of millions, is often thought of, as well. Aman. M. Hinograni writes: ‘A place brutalized by never-ending violence, gunshots, bombs, unmarked graves, missing children, wailing mothers and agonizing fear for the safety of loved ones’.This description is probably a standard one would hold the State to. This paper thus attempts to legally understand the argued upon implications of the status of Kashmir and cross-border issues, so as to provide the reader with an understanding of the prevalent situation between the two States. At the end, viable propositions as to a solution are enumerated in regard to the same.
The conflict, in the eyes of many is simply described from the view of two sides: Pakistan and Kashmir. The former being the advocates for the self-determination rights of the people of Kashmir, while the latter attaching precedence to the sovereignty of the Indian Union. However, it would be incorrect to visualize the situation as a coin, when in actuality it is a prism; for there exists one very important side that is often unappreciated due to the constant tug and pull of both nations; the side that is Kashmir’s. All three of these view-points will be described at length in this paper. Victoria Schofield writes “As I have often been told during my years of research on Kashmir. ‘You cannot talk about Kashmir as a dispute between two nations. It is a conflict because we- the Kashmiris- are in the middle.’ ”
A Brief Historical Context
The war between the sovereign states of Pakistan is an eternal, yet legendary one; involving an abundance of conflict, hostility, and inconvenience, to say the least. Be it the war-zone, or the resolution desk, the attempts of the two states to consume the State of Kashmir within their own have been profoundly unsuccessful. Pakistan and India
were formed as a product of the departure of the British Rule. During partition, Kashmir was a princely state ruled by Maharaja Hari Singh, who insisted upon joining neither of the sovereign nations, and on the contrary sought to form Kashmir into an independent neutral country. A helpless Maharaja Hari Singh, in fear of the Pathan tribesmen’s attack of Kashmir, relied on India and her troops for rescue; and sought the same from Lord Mountbatten, the then Governor General of India. Lord Mountbatten, however, saw the potential of another endless war that could break out, and suggested the accession to India, temporarily, ‘prior to a referendum, plebiscite, election, or even, if these methods were impracticable, by representative public meetings.’, and thus was signed, the instrument of accession by the Maharaja. Of the three wars fought by the two sovereign nations involved, Kashmir has predominantly been the focal point, minus the Bangladesh Liberation War of 1971 which ended in the separation of East Pakistan, what we now know as Bangladesh.
The present situation unfolds thusly: A third of the State of Kashmir is administered by Pakistan and is called ‘Azad’, whilst two-thirds of the former princely State lies within the ambit of India (including Ladakh, Jammu and the prized valley of Kashmir.) Pakistan and India are thus divided by the Line of Control (LoC), demarcating the ceasefire line, which was agreed upon in the 1972 Simla Agreement. China possesses a claim over an uninhibited land, through which a road linking Tibet to Sinkiang(Xinjiang) has been constructed, and the two States are separated by the Line of Actual Control (LAC), all of which sums up to be quite the complex situation.
The Argument for Self Determination, and a plebiscite
The contentions of Pakistan in context of the Kashmir issue remains that India had illegally taken control over the State of Jammu and Kashmir, owing to the invalidity of the instrument of accession, due to the fact that Maharaja was overthrown, and exiled from the Capital, and that fraud and violence were used so as to bring about the accession over Kashmir. Proponents of this view, as well as those in favour of Kashmir’s sovereignty advocate the following as a means of justice.
The Idea of a Plebiscite
The year 1989 witnessed a significant number of Muslim protests, in a two-fold form: One being that of an armed struggle, and the second one, a political execration towards their continued allegiance to India. The lack of a vantage point in terms of unanimity was what proved to be a sheer conundrum to the people of Kashmir. Select sections owed their allegiance to Pakistan, whilst others were neck-deep in the idea of an independent sovereign Kashmir. The activists fighting for this independence till date, look to the UN Resolution adopted on 13th August 1948 which recommended that a final decision on the status of Jammu and Kashmir ‘shall be determined in accordance with the will of the people’ without reference to a choice between either states. This was the result of a complaint by the Indian government in an international forum against Pakistan’s ‘aggression’. Two more resolutions passed in the years 1948, and 1949 emphasised on the holding of a plebiscite as agreed between India and Pakistan, so as to ensure the people be able to determine their future. This however, has not been done so, by the Indian government. It became more apparent than ever, that they were only willing to hold this plebiscite at a time when they were sure of the fact that the majority would side with the Indian Union, and not a moment sooner. Sir Owen Dixon, Representative of the UN, states that the demographic of the State of Kashmir is such, that plebiscite or not, one faction, minority or another is bound to be disappointed, and perhaps the best way to settle the matter would be to do so by holding a regional plebiscite, as a means of an equitable outcome, disregarding the inevitable division of the State. Sumantra Bose, an Indian writer says that the challenge forever was to strike a balance between ‘communal compartmentalization and the chimera of a non-existent oneness.’
Right to Self Determination
The right to self determination would simply mean that the people get to decide as to their own fate, and that it is their right to do so. It is an internationally recognized principle that the people of Kashmir are entitled to this right, so as to decide their own social, political, cultural and economic status. It has been argued since time immemorial, that the people of Kashmir are entitled to a will of their own so as to decide the course of action most suitable to them. An instance of a similar situation to that of India and Kashmir would be that of the case involving Palestine and Israel. The right of self determination awarded to the people of Palestine vide resolutions 181 and resolution 194 was rejected by the State of Israel. The Partition Plan as drafted by the UN, gave 53% of the total land to Israel, and 47% to Palestine, but evidently, Israel occupies over 80% of the total landmass. This occupation was thus a hindrance to Palestine’s access to the areas of Gaza and West Bank, as a result, proved to be a violation of UN’s mandates.
The impending argument regarding Kashmir’s independence has been asserted owing to its separate Constitution and legal framework; which is an attempt at forceful retention of the State as a part of India which only proves to be futile. Article 370 of the Indian Constitution is the authority behind this argument. This provision of the Indian Constitution permits the state of Jammu and Kashmir to have its own constitution formulated by its own constituent assembly. In simple terms, it enumerates the Parliament’s incapability of making laws for the State of Jammu and Kashmir. J&K has been awarded a ‘special status’ as per this provision, which doesn’t allow any residuary powers to rest with the Union Parliament with respect to Kashmir, as is the case with other states in India. The Supreme Court in the case of Prem Nath Kaul has held that the objective behind this provision was to limit the accession of the state to the dominion of India to the terms of the Instrument of Accession until the state Constituent Assembly determined the constitutional relationship between the two. Owing to the geo-cultural differences, and constitutional alienation of the Kashmir region, assertions have been made that given the myriad of differences that exist between Kashmir and the demographic of India, it is futile in continuing as a Union whilst such massive differences prevail.
The argument supporting India’s sovereignty
The Great Game: A Contextual Flashback
A historical context in this regard is would be relevant. In Aman Hinogorani’s ‘Unravelling the Kashmir Knot’, a close analysis has been made of what the partition of Kashmir and India meant to the British in the grand scheme of things. The systematic disintegration policy of ‘divide and rule’ was what the British thrived on, as a result of which the government was split into the Freedom-driven Congress Party, and the British-powered Muslim League.
Viceroy Rufus Daniel Issacs, First Marquess of Reading wrote to the then Secretary of State William Robert Wellesly Peel, on 21 September 1922 as under:
“I have just sent you a telegram, one which will show you, how near we have been to a complete break between Muslims and Hindus. I have been giving the greatest attention to this possibility, and I have had the greatest assistance from Shafi on my council, who is a highly respectable Mohammedan.”
The Congress Party’s vision of ‘self governance’ and ‘independence’ the success of which the British could not afford. Thus, they aimed to bring the Muslims on to their side. A plan was perpetrated, one where they promised to transfer all powers of governance to India, on the sole condition of unification of the Muslims and Hindus, all the while persevering towards their very division, to set ablaze a war against the two classes, and to make it seem like it was their hostility that prevented the British from relinquishing their power in the first place.
‘The Great Game’ being played between Britain and the then Soviet Union to gain control over Central Asia, was the motive behind it all. They feared the intervention of Soviet Union into the Persian Gulf region owing to its rich oil fields, which was of much importance to the British. As a result of this, an influence in the Middle East was pertinent, and thus necessitated the need for a separate Pakistan.
Perhaps an elaborate evaluation of the above historic events can lead us to this important conclusion: We’re fighting a fight that was never about us to begin with.
Competence of New Delhi: A Legal Analysis
The contentions under this subhead are two-fold: Firstly, that the wishes of the people of Kashmir are not to be viewed, in light of statutory considerations; and secondly, that the New Delhi government lacks the power to cede a sovereign nation and its constituent states, to begin with.
Coming to the right to self determination of the people of Kashmir, an assertive stance from a legal perspective has been taken in this regard. The assertion being, that both Pakistan and India are products of two British statutes namely the Government of India Act, 1935 and the Indian Independence Act, 1947. These statutes having enumerated that all princely states were now to be sovereign, with full power thus resting in the hands of the ruler, zero consideration must being given to the religious considerations of the people, or their wishes in that regard. It may be opined, that New Delhi’s interpretation of the accession being ‘subject to the wishes of people’ possibly negates the very purpose for which the statutes were enacted to begin with, thereby rendering the argument of self-determination rights of the people, a nullity.
The Supreme Court, in re Delhi Laws Act, 1912 cited Crawford, in this regard on Statutory Construction stating that ‘if a statute directs certain acts to be done in a specified manner by certain persons, their performance in any other manner than that specified, or by any other person than is there named, is impliedly prohibited.’ It has also been explicitly held in the case of Keshavananda Bharati that the very fact that referendum as a means to amend the constitution, was not included by the Constituent Assembly is indicative of the fact that selection of the same for the purpose of amendment would render such use ‘extra constitutional or revolutionary.’
With respect to New Delhi’s power to cede territory, which is a facet of International Law, certain limitations are imposed by the Constitution in the domestic regard. It is pertinent to state in this regard that international treaties entered into can take effect only when domestic legislations have been mandated, in order for it to take force. It was held in the case of In re Delhi Laws Act, 1912 that the powers of the Indian parliament to cede territory were subject to the limits laid down by the Indian Constitution, owing to the fact that Parliament was a creature of the Constitution, itself. Thus, two conditions: i.e., ratification and incorporation into domestic law, and consonance with the Constitution of India, are paramount, in this regard; both of which are lacking in India. The case of Berubari Union may be considered in this regard. While in Berubari¸ the constitution was interpreted so as to entail that the Parliament of India possessed powers to cede national territory; in the very same case it has been mentioned that they are ‘subject to the limitations which the Constitution’ may either ‘expressly or by necessary implication’ impose in that behalf, and that ‘treaty making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it.’ An contention was raised that the Preamble enshrines India’s democratic and republic nature also in terms of geography and territory, the same entails that the Parliament cannot cede any part of territory of India. This contention was rejected, and it was ruled in this case that the Preamble was not a part of the Constitution. This however was overruled in the case of Keshavananda Bharati wherein the ‘basic structure’ doctrine was enshrined and the preamble was held a part of the constitution, and vital in the interpretation of the Constitution. The court held that the Parliament may not amend those parts of the Constitution that were to destroy its identity, such as the sovereignty of India, and the unity of our country. It may be inferred from the above analysis of relevant legalities and constitutional aspects, that perhaps the Parliament lacks the power to cede any part of territory of India, and also the power to amend the same.
A Proposed Solution for the Way Forward
It is an established fact at this point that a myriad of attempts have been made towards the amicable settlement between the two sovereign nations of India and Pakistan. The Shimla Summit, Lahore Summit, and Agra Summit, are noteworthy in this regard. Among these efforts, also include the 2003 Ceasefire Agreement and the Delhi-Lahore Bus service, which did prove to be effective in terms of conflict resolution for a brief period, but the same was succeeded by numerous terrorist attacks notably, the 2001 Indian Parliament Attack, which brought the two States on the verge of a nuclear war.
The Simla Agreement is the most noteworthy agreement in terms of dispute settlement which enumerated that the two countries were to settle their disputes through peaceful means vide bilateral negotiations. Among these measures, includes an effort on behalf of the Indian Government in approaching the Security Council of the United Nations which was followed by resolutions that recommended India and Pakistan holding a plebiscite; which did not happen; owing to political agendas.
Let’s review the wants of all the three sides, from the earlier discussion: Pakistan’s want of Kashmir, India’s want of sovereign supremacy in terms of Kashmir, and Kashmir, its own independence. A complex web of issues revolving this may only be decided when the three truly wish to engage an international route.
Having explored and failed in dispute resolution by the means mentioned above, it is only practical for one to presume that approaching the International Court of Justice, as a just and alternative means to resolve the dispute. This would serve in the best interests of both parties, so as to objectively, with the help of a foreign court settle the ongoing dispute, once and for all, by giving the ICJ its due regard it deserves. The Simla Agreement mandates the peaceful settlement of disputes, by bilateral negotiations or even by ‘other means mutually agreed upon’. In considering the ICJ, as an alternative, a possible quandary that may present itself would be the question of jurisdiction of the Court, as its decision only binds those parties that voluntarily submit to the jurisdiction of the Court. It is at this juncture, that a situation where Pakistan fails to submit to the same, may pose a dilemma. To analyse the same, one may turn to the Simla Agreement mentioned above, which is conclusive proof that Pakistan has agreed to settle the dispute via peaceful methods, as well as “other means”. This would mean that New Delhi can make a reference to the Court on several grounds; one inclusive of the incompetence of New Delhi under the provisions of the Indian Independence Act, 1947 and Government of India Act, 1935 to base the accession of a princely state on the ‘wishes of the people’, and the other under Article 2(4) of the UN Charter, which mandates against the ‘use of force against the territorial integrity or political independence of any state’. Due consideration may be given to Article 36(1) of the ICJ Statute, in this regard. It enumerates the various ways in which a state may consent to the jurisdiction of the court; and in doing so, explicitly states that such consent need not be in any particular form, and is also applicable wherein a state has given its consent by entering into a treaty or a convention. In such a situation, an unwilling party to the relevant treaty would be bound by the jurisdiction of the ICJ. A noteworthy case in this regard would be that of the Jadhav Case (India v. Pakistan) wherein a case was made against Pakistan by New Delhi in relation to the death sentence of an Indian National denying consular access to India. Reliance was placed upon the Vienna Convention on Consular Relations, (to which Pakistan was a member) so as to bring Pakistan within the jurisdiction of the Court.
Another alternative measure would be to seek the Advisory opinion of the ICJ. There prevails much doubt with respect to the binding nature of such an opinion. But consequently, taking such a step could prove to be supremely beneficial in terms of where the two States would stand pertaining to the dispute, legally and otherwise. The ICJ Information Department noted in July 2010 that ‘while the ICJ’s advisory opinions have no binding effect, the authority of the Court attaches to its advisory opinions and to the findings contained in those advisory opinions’. And that the ‘Court’s advisory opinions are taken into account by international organizations and States in practice, which contributes to the development of International Law. An authoritative judicial pronouncement by a United Nations organ cannot be considered purposeless wholly. It will prove conducive to revolutionizing the political discourse regarding the Kashmir issue, which is vital owing to the endless debate. If not a solution, a step will be taken towards progress.
Exploring other options such as force, diplomatic negotiations, or even peaceful engagements with the sovereign state of Pakistan, prove to be counterproductive, and fruitless, as mentioned by Hinograni. Perhaps the repeal of the coercive laws in operation may additionally prove as a step towards peace. An example of these stringent laws include the provisions of the successive Jammu and Kashmir Preventive Detention Acts, which allows for detention of any person arbitrarily, on no solid grounds for such detention order. A parliamentary Act, called the Terrorist and Disruptive Activities (Prevention) Act, 1987 which permits arrest, as well as detention on ambiguous grounds such as ‘terrorist’ and ‘disruptive activities’. An immense reliance was placed on even the Constitution, the supposed bearer of fundamental rights of citizens of India, to consistently cloak the coercive laws under its protection.
Peace can be brought about through a combinational effort to engage in peace, by active action on part of the Government, as well as taking it one step further to the International Court of Justice, which is the mega-giant of resolution of disputes. This may be viewed as a conflict resolution effort, at both, domestic as well as international levels that may just be the answer to the prayers of many.
It’s a tale as old as any: Law, policy, implementation, and execution mean little to nothing in the eyes of a State consisting of a remarkable population in conflict that is unwilling to see what is right before it. It indeed may be true that bygones remain bygones, although the impending consequences we face will always remain an indication of the past. It is important to recall the manipulation of the British, and keep wind of the fact that we, as a State still seem to remain a player of a Great Game that was never ours, to begin with. Taking that into consideration, a fresh mindset in the hands of the relevant authorities can be a boon that will be an end to the catastrophic doom that is the Kashmir issue. It is of vital importance that one takes into account the lives of the many that can be revolutionised by the practicality of the acts of a few. It is time as a nation, to view the matter as not an issue pertaining to ‘yours and mine’ but as one that involves life and death. The above prescribed solutions have been analysed and mentioned due to the potential ground-breaking results they possess to end what can be described as a 70 year old struggle for Kashmir. The problem lies in viewing the matter as a political problem, rather than a legal one. While legal disputes manifest themselves as those comprising of a predominantly political element, the International Court of Justice speaks of this in a case, stating that the same does not pose a restriction on the power of the Court to resolve it. The Kashmir issue is a legal one, though dormant, and it is in these very legalities, that lay the answer to the tangled knot.
 Unraveling the Kashmir Knot, Aman Hinograni, 2016, p.xxi
Kashmir in Conflict, Victoria Schofield, 2003, p.xv
 Looking Back, Mehr Chand Mahajan (1963), p.162.
 Kashmir in Conflict, Victoria Schofield(2003), p.52
 Mission with Mountbatten, Campbell-Johnson, 1951, p.224.
 Supra, Note 2, p.54.
 Ibid, p.xi
 Ibid, p.xii
 Kashmir in Conflict, Victoria Schofield, 2003, p.71.
Ibid, p. xiii.
 The Challenge in Kashmir, Sumntra Bose, 1997, p.177.
 Article 1 of the Charter of United Nations
 Lia Syed, Palestinian Right to Self-Determination, Global Policy Forum, December 15, 2003. Retrieved on September 4, 2015 at: https://www.globalpolicy.org/component/content/article/189/38197.html
 Unraveling the Kashmir Knot, Aman Hinograni, 2016, pg 407
Ibid; Premnath Kaul v. State of Jammu and Kashmir: AIR 1959 SC 749
 Supra, Note 15
 Facts are Facts: The Untold Story of India’s Partition, Wali Khan, 2004, p.10.
 Ibid, pp.16, 18.
 The Shadow of the Great Game: The Untold Story of India’s Partition, Narendra Singh Sarila, 2005, p.75.
 Supra, Note 15
 In re Delhi Laws Act, 1912: 1951 SCR 1947
 Ibid., p.946.
 Keshavananda Bharati v. State of Kerala: AIR 1973 SC 1461.
 Ibid., p.1639.
 Article 5 of the Convention of Treaties, adopted at the Sixth International Conference of American States at Havana on 20 February, 1928.
 Ibid., Note 7
 Ibid, p.760
 Supra Note 9, pp 856-857
 Supra, Note 25
 Supra, Note 22, p.397.
 Jadhav Case (India v. Pakistan), Provisional Measures, Press Release No. 2017/22, 18 May 2017. Available online at http://www.icj-cij.org/docket/files/168/19440.pdf
 Questions & Answers About the Advisory Procedure, ICJ Information Department, July 2010. Available online at http://www.icj-cij.org/presscom/en/kos+faq_en.pdf
 Supra, Note 32, p.315-359
 Section 8, Jammu and Kashmir Preventive Detention Act
 Article 370, Indian Constitution
 Ibid, p.452
 United States Diplomatic and Consular Staff in Tehran, Judgement, I.C.J. Reports 1980, p.3 at 20