A Lesson for Mr Prashant Bhushan

It is not anti-national to express dissent but in the light of the current crisis in Kashmir, it is inappropriate for people of stature to be shooting from the hip on issues such as referendum and plebiscite

By Inderjit Badhwar

Since I started covering the trials and tribulations of Jammu & Kashmir starting in 1986 as a reporter and editor, I have met, interviewed and known every important actor on the scene—chief ministers, ministers, separatists, clergymen, exiled Pandits, slain leaders, bereaved mothers, governors, intelligence officials, Pak-trained border crossers, prime ministers in Delhi. You name them.

My views on Kashmir, my understanding of “Kashmiriyat” and the socio-political psyche that fuels this passionate, ineluctable identity-urge were derived from the people and wisdom of that soil and not from propagandist-posturing by either Delhi or Rawalpindi and its paid apologists and hit men. My outlook is well-known. The problem is between Delhi and the people of Kashmir and not between India and Pakistan. Pakistan has no role to play in this except that of a blood-stained mischief-maker into whose hands Indian governments and politicians have stupidly played since 1948.

That is why statements by lawyers like Prashant Bhushan, the uncrowned Emperor of India’s PIL domain, advocating a plebiscite of referendum in Kashmir, distort history and give moral firepower to those hell-bent in preventing a just resolution of Kashmiri grievances within the Indian union.

There are many who speak like Bhushan. Particularly the Pakistani rulers and their surrogates in Kashmir. And possibly Indian “liberals” and outfits like People’s Union for Civil Liberties (PUCL) of which Bhushan was an integral leader. Pakistani leaders will naturally talk this language because it fits the ideological underpinning of their state and raison d’etre. For them, historical distortion is a chronological compulsion because plebiscite means a choice between India and Pakistan, and not azaadi (independence) which most Kashmiris dream about, albeit with different nuances and interpretations. When a man of Bhushan’s eminence talks of a referendum, he provides further ideological ammunition to pro-Pakistani elements within Kashmir—the hardliners bent on sabotaging peaceful solutions between Delhi and Kashmir’s leaders. Positions harden. The cycle of violence escalates.

The plebiscite was also to be conducted regionally, including in Gilgit and Baltistan. But Pakistan has ceded the region to China, which has invested billions there.

When senior lawyers like Bhushan talk plebiscite, saner voices in Pakistan like Air Marshal Asgar Khan, a war hero, who openly says on Pakistan TV that his own nation was the aggressor in Kashmir, and that Kashmiri integrity was protected by the Indian Army at the invitation of the Kashmir government, and therefore Pakistan has no legitimacy in Kashmir, take a back seat. When the pro-plebiscite (read pro-Pakistani) sentiment gains ground in Kashmir, armed militancy thrives. Leaders of great stature like Abdul Ghani Lone, Mir Mustafa, Qazi Nissar, Maulana Farooq who were willing to find solutions within India, are brutally slain by outfits like the Hizbul-Mujahideen.

Today’s uprising in the Valley is a replay of many similar upheavals from the past—in 1953 when Sheikh Abdullah was arrested; in 1964;  in 1984 when Jammu Kashmir Liberation Front (JKLF) founder Maqbool Butt was hanged; in 1990 when over three lakh mourners came out on the streets after the killing by security forces of militant Ashfaq Majid.

1990 was a watershed year, I wrote in a cover story for India Today (April 30, 1990). Even though there were mass protests in earlier years, the separatist forces had identifiable leaders who espoused secularism and there were few, if any, terrorist assassinations of innocents.

“But today, the movement is dominated by the money provided by Pakistan and Saudi Arabia and the muscle power of the pro-Pakistan, fundamentalist Jamaat-i-Islami and its Hizbul Mujahideen and Allah Tiger terror groups. The Jamaat is supposed to be strong in Baramula and Sopore and the “secular” JKLF in Srinagar and Anantnag. But this is now merely semantics.

“For what once used to be a mass movement for the preservation of ethnic identity, of Kashmiriyat, of which Article 370 was supposed to be the symbolic guardian, has been consumed by a fundamentalist fury that gives the movement sustenance and spiritual guidance. The liberal spirit of sufism that had so infused the valley has now been exorcised.”

The words I wrote then still ring true as Prime Minister Modi gropes for a solution following the killing of Burhan Wani. “The bottom line of the militants is secession. And the bottom line of the Indian government cannot go outside the constitution. The two positions are irreconcilable. The time for theorizing, post-mortems and historical regurgitations is over. From the secessionists’ viewpoint, the insurgency has the Indian government exactly where it wants it—divided in dealing with the problem.

“And temporary reverses must not be allowed to reverse the process of a sustained reclamation. The country can no longer afford to behave like a tenant put on notice to vacate somebody else’s property.”

I quote again from that article written in 1990 because there’s such a strong sense of déjà vu: “The bulk of the people follow whatever institution wields the big stick. Today, that stick is in the hands of the militants. The primary task before the government is to re-establish its writ and show that it has the political will to do so. To demonstrate that the country will not compromise an inch of its territory. It was the absence of this message during the Farooq regime and a lack of clarity of purpose under VP Singh’s government that has hobbled the state administration and given a certain strategic advantage to the secessionists.

“Confusion and delay in regaining India’s lost administrative turf in Kashmir will simply give Pakistan and the militants the most precious resource they can ask for—time. Their strategy is to wear New Delhi down to such an extent that the cost of maintaining Kashmir will become an impossible burden; or to keep a ready-made Pakistan inside India to be used by Pakistan to create constant problems.”

“The view from New Delhi is that in the long run, time is on its own side because in the peaks and valleys that characterize terrorism all over the world, the fundamentalists, when they realize that they can’t really break loose of India’s grip, when they begin suffering economically, will wear down and seek a solution with the Centre. But this is precisely the kind of thinking that led to escalating violence in Punjab.

“In Kashmir the wait-and-wear-down attitude, considering how perilous the situation already is because of years of fence-sitting, is bound to make the problem even more intractable. The longer, for example, that security forces wait for orders to hit known training centers inside the valley’s villages—so far more or less out of bounds—the more powerful will terrorist cadres become.”

The UN resolution is very clear on plebiscite. There were three sequential and conditional steps. And the first step was that Pakistan was to demilitarize to the satisfaction of the UN body to be established.

This is why the Prashant Bhushans of this world must exercise extreme caution in their utterances on referendum or plebiscite while simultaneously claiming—later—that Kashmir is an integral part of India. Because the damage is already done.

Be it far from me to label Bhushan—or for that matter anybody who criticizes the Indian state—an “anti-national”. I am not in favor of dividing the country into nationals versus anti-nationals for political gain. Nor do I subscribe to the idiotic theory that public denunciation of corruption and proclamation of the desire for freedom from religious fanaticism, casteism, corruption and repression, or the expression of a divergent view on international policies is secessionist or seditious. Our Founding Fathers encouraged free speech and dissent with reasonable restraints, with the burden of proof on the state to prove that public utterances had actually resulted in harm to India’s integrity. And I applauded the Supreme Court for striking down the pernicious censorship of the social media through 66-A of the IT Act.

So to Mr Bhushan I say, of course, express yourself by all means, but then, be ready to face the heat from those who would expose your statement as a bogus distortion of history. Bhushan’s argument championing referendum in Kashmir is built on historical quicksand, and he would do well to listen to renowned South Asian scholar Christine Fair, author, and professor of Peace and Security Studies at the prestigious Georgetown University in the US.

At a well-publicized seminar (available on YouTube), Ms Fair upbraided a Pakistani Fulbright Scholar for “making a fool” of himself in saying that India was guilty of violating international law and promises to the Kashmiri people by denying them the UN-guaranteed right to a plebiscite on joining India or Pakistan. She could well have been talking to Prashant Bhushan.

The Fulbright scholar had argued that the UN pledge of a plebiscite gave Pakistan the legal basis for being a party to the Kashmir dispute. He also said that Islamist Jehadis were created and funded by the US and the CIA when the Soviets entered Afghanistan. The Kashmiri crisis, he said, preceded the Jehadi creation. “The Soviets were pushed out and the US left Pakistan and Afghanistan in the lurch.”

Professor Fair’s retort is a textbook example of how to counter historical disinformation. I reproduce parts of it verbatim:

“Have you read the UN Security Council Resolution of 1948 (on plebiscite in Jammu and Kashmir)?” The Fulbright Scholar admitted he had not. She admonished him: “First thing I would ask you is to read it. Go to the UN Security Council Website and read that fabulous resolution. Every Pakistani points to it  but nobody has actually read it. Take the actual version and compare that to the claims made by Pakistan’s permanent representative to the UN and you are going to understand your confusion.

“The resolution is actually very clear. There were three steps. They were sequential, and they were conditional. Very first step was that Pakistan was to demilitarize to the satisfaction of the UN body to be established. Then, conditioned upon the UN being satisfied that this demilitarization (was complete), India was also supposed to de-militarize with a presence being permitted to defend itself against Pakistani aggression.

“The third, both those steps having been taken in sequence to the preference of the UN, then the plebiscite would be held. So all those Pakistanis who are so upset about the plebiscite that never happened, they have their own government to blame because Pakistan never fulfilled the first necessary condition. So I’m going to encourage you to read that before ever making a fool of yourself again by presenting it in public. So just do yourself a favor by reading that document.

“Second, I want you to learn a little about your own country’s Afghanistan policy. Sir, do you know that it was Zulfiqar Ali Bhutto who began the ISI cell in Afghanistan? It was also Bhutto who began setting up what became the “Seven Donkeys” before even the Soviet Union crossed over. Did you know this, Sir? (Answer: No.)

“So this idea that somehow the United States used Pakistan in some sort of effort to expel the Soviets is a completely incorrect reading of your own history. After King Zahir Shah (of Afghanistan) was ousted and Mohammed Daoud Khan came to power and began pro-Soviet policies, driving the Islamists into Iran and Pakistan respectively, Zulfiqar set up an ISI cell so he could use those disenchanted and disenfranchised Islamists as vectors of Pakistan’s policies in Afghanistan. Did you know that we first sanctioned Pakistan in April of 1979 because of advances made in its nuclear weapons program? If we were so interested in sucking it into our evil Jehad designs we sure didn’t make that difficult for ourselves because when the Soviets did cross over we had to do a bunch maneuvering to get a waiver. And do you know that the first of that money did not get into Pakistan until 1982 because of that requirement to get a waiver?

In Kashmir the wait-and-wear-down attitude, considering how perilous the situation already is because of years of fence-sitting, is bound to make the problem even more intractable.

“So before you go blaming the United States for using and abusing poor Pakistan, you should familiarize yourself with your own history because Pakistan has been instrumentalizing Islamists long before the Americans even knew what an Islamist was. Now going to your next point about leaving Pakistan high and dry. Let’s talk about the Pressler Amendment. The Pressler Amendment was actually designed so Pakistan can continue proliferating, while we continue arming you, because we had first sanctioned you in April 1979. Everyone understood the name of this game. When we withdrew in 1990, we withdrew. Pakistan, however, continued mucking around with the Islamists. So this idea that the Jehad today or the Taliban today or the Al Qaeda, this is really a grotesque empirical error…that I really don’t quite expect from Fulbright students because everything you said is a highly stylized re-telling that you get from Pakistani media in your curriculum.”

Incidentally, the plebiscite was also to be conducted regionally—separately for Jammu, Kashmir, Ladakh, Gilgit and Baltistan. But as an analyst correctly points out in an internet post, the plebiscite /referendum is no longer valid for other reasons as well: Because of Punjabi-speaking settlers, the demographics have changed significantly in PoK; Pakistan has ceded a part of Kashmir to China (Shaksgam Valley); China has invested billions of dollars in Gilgit-Baltistan and even has some troop presence there.

Would Pakistan be willing to hand over Gilgit-Baltistan to India—even temporarily? Handing over Gilgil-Baltistan means China and Pakistan would no longer share any borders.

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THE UN RESOLUTION EVERYBODY TALKS ABOUT BUT NO ONE CARES TO READ
Resolution 47 (1948)

On the India-Pakistan question submitted jointly by the Representatives for Belgium, Canada, China, Colombia, the United Kingdom and United States of America and adopted by the Security Council at its 286th meeting held on 21 April, 1948.
(Document No. 5/726, dated the 21st April, 1948).

THE SECURITY COUNCIL

Having considered the complaint of the Government of India concerning the dispute over the State of Jammu and Kashmir, having heard the representative of India in support of that complaint and the reply and counter complaints of the representative of Pakistan. Being strongly of opinion that the early restoration of peace and order in Jammu and Kashmir is essential and that India and Pakistan should do their utmost to bring about cessation of all fighting. Noting with satisfaction that both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite, Considering that the continuation of the dispute is likely to endanger international peace and security, Reaffirms its resolution 38 (1948) of 17 January 1948;

Resolves that the membership of the Commission established by its resolution 39 (1948) of 20 January 1948, shall be increased to five and shall include, in addition to the membership mentioned in that Resolution, representatives of… and …, and that if the membership of the Commission has not been completed within ten days from the date the adoption of this resolution the President of the Council may designate such other Member or Members of the United Nations as are required to complete the membership of five;

Instructs the Commission to proceed at once to the Indian subcontinent and there place its good offices and mediation at the disposal of the Governments of India and Pakistan with a view to facilitating the taking of the necessary measures, both with respect to the restoration of peace and order and to the holding of a plebiscite by the two Governments, acting in co-operation with one another and with the Commission, and further instructs the Commission to keep the Council informed of the action taken under the resolution; and, to this end.

Recommends to the Governments of India and Pakistan the following measures as those which in the opinion of the Council and appropriate to bring about a cessation of the fighting and to create proper conditions for a free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan.

A – RESTORATION OF PEACE AND ORDER

1. The Government of Pakistan should undertake to use its best endeavours:

(a) To secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the State for the purposes of fighting, and to prevent any intrusion into the State of such elements and any furnishing of material aid to those fighting in the State;

(b) To make known to all concerned that the measures indicated in this and the following paragraphs provide full freedom to all subjects of the State, regardless of creed, caste, or party, to express their views and to vote on the question of the accession of the State, and that therefore they should co-operate in the maintenance of peace and order.

2. The Government of India should:

(a) When it is established to the satisfaction of the Commission set up in accordance with the Council’s Resolution 39 (1948) that the tribesmen are withdrawing and that arrangements for the cessation of the fighting have become effective, put into operation in consultation with the Commission a plan for withdrawing their own forces from Jammu and Kashmir and reducing them progressively to the minimum strength required for the support of the civil power in the maintenance of law and order;

(b) Make known that the withdrawal is taking place in stages and announce the completion of each stage; When the Indian forces shall have been reduced to the minimum strength mentioned in (a) above, arrange in consultation with the Commission for the stationing of the remaining forces to be carried out in accordance with the following principles:

(i) That the presence of troops should not afford any intimidation or appearance of intimidation to the inhabitants of the State;

(ii) That as small a number as possible should be retained in forward areas;

(iii) That any reserve of troops which may be included in the total strength should be located within their present base area.

3. The Government of India should agree that until such time as the plebiscite administration referred to below finds it necessary to exercise the powers of direction and supervision over the State forces and policy provided for in paragraph 8, they will be held in areas to be agreed upon with the Plebiscite Administrator.
4. After the plan referred to in paragraph 2 (a) above has been put into operation, personnel recruited locally in each district should so far as possible be utilised for the re-establishment and maintenance of law and order with due regard to protection of minorities, subject to such additional requirements as may be specified by the Plebiscite Administration referred to in paragraph 7.
5. If these local forces should be found to be inadequate, the Commission, subject to the agreement of both the Government of India and the Government of Pakistan, should arrange for the use of such forces of either Dominion as it deems effective for the purpose of pacification.

B – PLEBISCITE

6. The Government of India should undertake to ensure that the Government of the State invite the major political groups to designate responsible representatives to share equitably and fully in the conduct of the administration at the ministerial level, while the plebiscite is being prepared and carried out.

7. The Government of India should undertake that there will be established in Jammu and Kashmir a Plebiscite Administration to hold a Plebiscite as soon as possible on the question of the accession of the State to India or Pakistan.
8. The Government of India should undertake that there will be delegated by the State to the Plebiscite Administration such powers as the latter considers necessary for holding a fair and impartial plebiscite including, for that purpose only, the direction and supervision of the State forces and police.
9. The Government of India should at the request of the Plebiscite Administration, make available from the Indian forces such assistance as the Plebiscite Administration may require for the performance of its functions.
10. (a) The Government of India should agree that a nominee of the Secretary-General of the United Nations will be appointed to be the Plebiscite Administrator. The Plebiscite Administrator, acting as an officer of the State of Jammu and Kashmir, should have authority to nominate the assistants and other subordinates and to draft regulations governing the Plebiscite. Such nominees should be formally appointed and such draft regulations should be formally promulgated by the State of Jammu and Kashmir.

The Government of India should undertake that the Government of Jammu and Kashmir will appoint fully qualified persons nominated by the Plebiscite Administrator to act as special magistrates within the State judicial system to hear cases which in the opinion of the Plebiscite Administrator have a serious bearing on the preparation and the conduct of a free and impartial plebiscite. The terms of service of the Administrator should form the subject of a separate negotiation between the Secretary-General of the United Nations and the Government of India. The Administrator should fix the terms of service for his assistants and subordinates.

The Administrator should have the right to communicate directly, with the Government of the State and with the Commission of the Security Council and, through the Commission, with the Security Council, with the Governments of India and Pakistan and with their representatives with the Commission. It would be his duty to bring to the notice of any or all of the foregoing (as he in his discretion may decide) any circumstances arising which may tend, in his opinion, to interfere with the freedom of the Plebiscite.

11.  The Government of India should undertake to prevent to give full support to the Administrator and his staff in preventing any threat, coercion or intimidation, bribery or other undue influence on the voters in the plebiscite, and the Government of India should publicly announce and should cause the Government of the State to announce this undertaking as an international obligation binding on all public authorities and officials in Jammu and Kashmir.
12. The Government of India should themselves and through the Government of the State declare and make known that all subjects of the State of Jammu and Kashmir, regardless of creed, caste or party, will be safe and free in expressing their views and in voting on the question of the accession of the State and that there will be freedom of the Press, speech and assembly and freedom of travel in the State, including freedom of lawful entry and exit.
13. The Government of India should use and should ensure that the Government of the State also use their best endeavour to effect the withdrawal from the State of all Indian nationals other than those who are normally resident therein or who on or since 15th August 1947 have entered it for a lawful purpose.
14. The Government of India should ensure that the Government of the State releases all political prisoners and take all possible steps so that:

(a) all citizens of the State who have left it on account of disturbances are invited and are free to return to their homes and to exercise their rights as such citizens;

(b) there is no victimisation; minorities in all parts of the State are accorded adequate protection.

15. The Commission of the Security Council should at the end of the plebiscite certify to the Council whether the plebiscite has or has not been really free and impartial.

C – GENERAL PROVISIONS

16. The Governments of India and Pakistan should each be invited to nominate a representative to be attached to the Commission for such assistance as it may require in the performance of its task.
17. The Commission should establish in Jammu and Kashmir such observers as it may require of any of the proceedings in pursuance of the measures indicated in the foregoing paragraphs.
18. The Security Council Commission should carry out the tasks assigned to it herein.

The Security Council voted on this Resolution on 21-41948 with the following result: In favor: Argentina, Belgium, Canada, China, France, Syria, the UK and the USA.

Against: None

Abstaining: Belgium, Colombia, Ukrainian S.S.R. and USSR.