One of the most geographically, politically and now militarily contested territories that have raised innumerable human rights questions in the recent and distant past continues to be Kashmir.
Kashmir today is devoid of Swaraj, of the real essence of Kashmiriyat. Granville Austin underpins the legitimacy of a constitution in any given territory, and particularly India, in the consent of the masses. While he does provide a flexibility of justification sourced from either Tacit Consent or explicit Consent, it is the idea that the legitimacy of a government, of any constitution in a territory governing people and their lives, lay nowhere but in the will of the masses. This will is absent in the territory of Jammu & Kashmir ever since their struggles began.
The Kashmiri Muslims had for centuries been oppressed and discriminated against by their own Rulers, who belonged to the Minority Dogra Community. Both social and economic capital lay predominantly in the hands of these minorities and logically, huge wealth & power inequality persisted in the Valley, far before the question of Indian Independence. It was, but a question of Kashmiri Independence from a ruler who only worsened the divides within the community.
The slogan of the National Conference, which led the movement under Sheikh Abdullah, was “Dogra rulers quit Kashmir.” The Dogra rulers, with the help of the British government, suppressed the movement and arrested Sheikh Abdullah. This movement of self-determination met its fate with Hari Singh’s decision to remain an independent entity with no change of power structures and continuance of the Dogra Rule. The revolt was inevitable and it followed as the Kashmiris of Poonch took it into their hands. Violent elements joined them from the Tribes, backed up by the military of Pakistan. Raja Hari Singh sought India’s help and signed the Instrument of Accession in lieu of military help and protection.
Nehru declared on All India Radio on November 2, 1947, that, “As soon as law and order had been restored in Kashmir and its soil cleared of the invaders, the question of the state’s accession should be settled by reference to the people.” It is 2023 and the Plebiscite still remains to be done. The will of the people had been flouted, ignored and rather mutilated. It had always been for Kashmiris when for centuries, British-backed Dogras ruled the territory authoritatively with exclusive power concentration and the show continued, only the perpetrators changed its name. The solution to this mayhem, the only path that would perhaps yield some beneficial result is what Mahatma Gandhi advocated for, long ago. Gandhi, in his visit to the Valley and an address on the 29th of July 1947 made himself clear about the solution to Kashmir, before the problems had even begun:
“I am not going to suggest to the Maharaja to accede to India and not to Pakistan. The real sovereigns of the State are the people. The ruler is a servant of the people. If he is not so, he is not the ruler. This is my firm belief, and that is why I became a rebel against the British – because the British claimed to be the rulers of India, and I refused to recognise them as such. In Kashmir, too, the power belongs to the public. Let them do as they want”.
No approach to this long-standing conflict can ever claim to put an end to all issues in the Valley, principally and practically but it is without an iota of doubt that needs to be understood that Gandhian Ideals and the promise of Swarajya is the only way to begin with. The Gandhian solution that we can imagine to return back the Kashmiris their free will and self-determination can be imagined beginning with a Plebiscite. The Plebiscite promised to the People of Kashmir back then, can be conducted to ascertain the real will of the Kashmiris to determine if they wish to continue with the Union of India or seek sovereign self-government. Nothing other than a plebiscite could adhere to the Gandhian necessity of the masses to self-determination and Swarajya. Keeping in mind the realpolitik considerations and the claims made by both India & Kashmir, the consequences of this plebiscite could be imagined in a manner that preserves the autonomy of the Kashmiris and offers both India & Pakistan an intermediate way out in terms of a shared agreement. This answer lies in the tried and tested method of Condominium.
A condominium is a real-world manifestation of a Gandhian Idea in practice. Essentially, in International Law, it is a political territory (state or border area) in or over which multiple sovereign powers formally agree to share equal dominium (in the sense of sovereignty) and exercise their rights jointly, without dividing it into “national” zones. A condominium is principally based on the Gandhian Idea of Non-Violence and Cooperation among the masses, originating from the right to self-determination. Andorra, a country in Western Europe that has flourished as a prosperous political condominium for eight centuries, is an illustrative example. In 1278, the French Count and Spanish Bishop reached an agreement on a document known as the Acte de Parbage to end a protracted conflict stating that the French Counts of Foix and the Spanish Bishop of Urgell would put an end to their hostilities, promise not to include Andorra in their respective kingdoms, and be given equal co-sovereignty over Andorra, which they would govern jointly. Today, this structure has been codified in their Constitution articulating that the powers between the two co-sovereigns are equal, vesting them with “highest representation.
A similar Gandhian framework can be proposed for the resolution of the Jammu & Kashmir problem. Conducted in a two-step manner where Step 1 involves the conduct of a Plebiscite to ascertain the will of the Kashmiris if they wish to exist as an Independent Nation followed by Step 2 where a Condominium is established to ensure both the free will of the Kashmiris and an answer to the political realities of India & Pakistan. The Manohar-Musharraf 4-Step Formula help us chart a pathway to this Gandhian Ideal:
(a) Minimize the presence of Military Forces in Kashmir on both sides of the Line of Control.
(b) Facilitate more cross-border movements of the People of Jammu & Kashmir through the LOC linkages essentially creating a geographically unified territory
(c) Right to Self-Governance and absolute sovereignty in internal management to the people of Kashmir in all areas throughout the territory.
(d) Reaching a cooperative and consultative mechanism (as Gandhi preferred) for the resolution of problems related to the social and economic development of the region.
This condominium shall involve the transition of two conflicting states at war with each other in the Valley, to a shared territory with equal de jure rights accompanied by a complete vesting of the governmental sovereignty in terms of self-rule in the hands of Kashmiris. This is a solution that shall also entail the cooperation of both India and Pakistan in diffusing the military situation in the area, developing a mechanism of shared defence & security with the stakeholders of Kashmir and leaving the matters of governance to the sovereign elected by the free will of the Kashmiris. A New York Times article dated May 10th, 1964 reports that the local leaders of Kashmir including Sheikh Abdullah have previously advocated for and supported the introduction of a condominium framework for J&K. Infact, the NYT also reported on good authority that the proposal was said to have emerged from talks between Sheik Abdullah and Chakravarty Rajagopalachari, former Governor General of India, in Madras earlier that week.
This combination of a Plebiscite to determine the will of the masses whether to stay with India or go for an Independent sovereign territory followed by a workable condominium solution to assuage the claims of India & Pakistan, is the only possible resolution to (i) denial of Swarajya to Kashmiris over and over again and (ii) Peaceful co-existence of the people of Kashmir and India as well as Pakistan. This framework, dreamt of by both Abdullah and Nehru, will mark the realization of Gandhian ideals in a Post-Gandhi India. It is perhaps high time now that the control of Jammu & Kashmir is returned back in a transitioned manner to the hands of their residents. This solution may not be absolutely efficient in terms of the timeline that would require its realization and the capacities of negotiation that it demands, but it remains the ONLY possible solution to this conflict.
By Shreyam Sharma
Shreyam Sharma is a 3rd-year BA-LLB student at NALSAR, Hyderabad.
(Source: Hastakshep News)