Freedom Files: WHY A PLEBISCITE IS NOT POSSIBLE
UN mediator Sir Owen Dixon’s seminal 1950 plan articulated that the 1947 raids into J&K and the land grab by Pakistan were contrary to international law and had radically altered its original map

Among the many gems left behind by master strategist Sun Tzu is one that is most apt for Janus faced Pakistan, a toxic nation from inception, birthed by the arrogance of theology, ideology and violence. If your opponent is of choleric temper, seek to irritate him. Pretend to be weak, that he may grow arrogant. I would imagine this was at the very kernel of India's strategic game plan in those anxious days even when it was at war with Pakistan to save Kashmir, in parallel it was battling the same adversary diplomatically in the United Nations. Realising that fear was a tool of manipulation being used to browbeat India, Indian Kashmir policy mavens outsmarted with the tribal lashkar raid to secure Kashmir Valley, quickly countered both the illegal war machine and duplicitous propaganda being spread by Pakistan. War and plunder have often been described as two of the most reliable sources of income. It was the case in 1947-48 and has been the case in Kashmir since and the world over as well. Africa is a stark example of this adage, ravaged for its natural resources repeatedly and endlessly. In the fluidity of the state of play in Kashmir semantics met polemics head on as charges and counter charges were traded by India and Pakistan as they jousted over everything. Pakistan using chicanery while India offered its riposte based on facts. Finally, a Memorandum was issued by the United Nations Commission for India and Pakistan which was established to resolve the imbroglio. Deliberations and confabulations were unending, finally UNCIP issued the following Memo for both argumentative sides:

MEMORANDUM

1.  The United Nations Commission for India and Pakistan has given long and intensive study to the replies of the Governments of India and Pakistan of May 18 and 30, 1949, respectively, to the Commission’s Truce Terms of April 28, as well as to the letter of the Government of India of June 17 and the results of the consultations between representatives of the Commission and the Government of Pakistan in Karachi, June 25 and 28, 1949. As the two Governments are aware, the Commission has recognized that neither Government has found it possible to give to the Truce Terms unreserved acceptances requested by the Commission.

2.  The Commission subsequently decided to seek to bring about agreement on a ceasefire line through meetings of the military representatives of the two Governments. The Commission is highly gratified that these meetings, held in Karachi from July 18 to 28, 1949, resulted in the definition of an agreed ceasefire line, thus completing the implementation of Part I of the Resolution of August 13, 1948.

3.  Hopeful that the success of the meetings of the military representative held in Karachi presaged a new and more suitable opportunity for both Governments to agree on the problems relating to the implementation of Part II of the Commission’s Resolution of August 13, 1948, the Commission invited the Governments of India and Pakistan to send representatives to meet together under the auspices of the Commission. In view of the letters of reply from both Governments, wherein they reaffirmed their opposed position with respect to the provisional agenda, the Commission felt constrained to withdraw its invitation, for the reasons expressed in its letter of 19 August 1949.

4.  The implementation of part II of the Commission’s Resolution of 13 August 1948, remains unaccomplished. The Commission strongly feels that early and definitive action in this regard is desirable, and has no doubt that both Governments share this view. The Commission remains convinced of the sincere desire of both Governments to solve the Kashmir problem by peaceful means and of their firm intention to fulfill the commitments they have entered into in this regard.

5.  The Commission has therefore, in the light of existing circumstances, decided to ask both Governments whether they will agree to the course of action outlined below for the conclusion of the Truce :

   (i) The two Governments agree :

  • (a)  That they will submit to arbitration the differences existing between them concerning all questions raised by them regarding implementation of Part II of the Resolution of 13 August 1948, the Arbitrator to decide these questions according to equity, and his decisions to be binding on both parties;
  • (b) That the arbitration will terminate once the truce terms are decided upon;
  • (c)  That Fleet Admiral Chester W.Nimitz will be the Arbitrator;
  • (d) That the procedure for the arbitration will be worked out subsequently;
  • (e)  Since the procedure of arbitration will be limited to the conclusion of a truce the Commission will continue in the exercise of its functions. Upon an arbitral decision the Commission will undertake the tasks assigned to it under the truce and under the Resolution of 5 January 1949.

(ii)   With reference to paragraph (i) (d), above, the Commission considers that it would be inappropriate, in advance of approval by the parties of the proposed course of action and of the person of the Arbitrator, to seek to define the exact procedure to be followed.

6.  The Commission recommends this course of action as an effective means of overcoming the obstacles which have so far stood in the way of the implementation of the Truce Agreement. If accepted by the two Governments, the Commission is confident that the implementation of the Truce Agreement will be speedily begun and that the Commission and the two Governments will be placed in a position to pursue their respective tasks leading to the final settlement of the problem, the continued existence of which is a source of grave concern not only to both Governments, but also to the other member-states of the united Nations.

7.  The Commission requests that, after your Government has given this matter its careful and deliberate consideration, it may be favoured with a written reply.

At the very core of this contentious issue, also described by duplicitous Pakistan as the unfinished business of partition  remained Kashmir and the Plebiscite. Government of India's position was clear:

Principles of Plebiscite

Meanwhile, talks between the Commission and representatives of India and Pakistan continued to proceed favourably. On December 11, 1948??, the commission submitted to the representatives of the two Governments its proposals on the basic principles of a plebiscite, which were supplementary to the Commission’s resolution of August 13, 1948.

The Commission also sent one of its members — Dr Lozano, the Colombian representative — and his alternate, Mr Samper, to the sub-continent to provide the two Governments with any necessary explanations of its proposals. Between December 20 & 22, talks were held between Dr Lozano and the Prime Minister of India pointed out that the presence of 32 armed battalions of the “Azad Kashmir” forces would be a threat to the security of the rest of the State. Moreover, with such a large number of “Azad Kashmir” forces under arms, Muslim and non-Muslim refugees from the “Azad” area, who held different political views, would not dare to return to their homes to take part in the plebiscite. Dr Lozano agreed that there should be large-scale disbanding and disarming of these forces (Aide Memoire No.2).

On December 23, 1948, on the basis of clarifications given, the Government of India accepted the Commission’s proposals. Two days later, Pakistan also accepted them.

Ceasefire

On January 1, 1949, the Governments of India and Pakistan declared that, in view of the fact that the proposals of the U.N. Commission had been accepted, there was no reason for continuation of hostilities. Both Governments announced their agreement to order a ceasefire effective one minute before the midnight of January 1, 1949.

Resolution of January 6, 1949

On January 5, 1949, the Commission reconvened at Lake Success and adopted a resolution embodying its proposals of December 11. The main points of the resolution were :

First, the accession of Kashmir would be decided by a free and impartial plebiscite.

Second, the UN Secretary-General would nominate a Plebiscite Administrator, who would derive from the Jammu and Kashmir Government powers necessary to conduct the plebiscite.

Truce Terms

On February 4, 1949, the Commission returned to the Indian sub-continent. After a series of conversations and exchange of communications with both the Governments, the Commission presented its truce terms on April 28, 1949. The truce terms were divided into three parts : Part I – Ceasefire; Part II – withdrawal of troops; Part III – General Provisions.

Part I dealt with the Cease-Fire line and the Northern Areas. The Commission agreed that the Government of India might be allowed to station garrisons north of the ceasefire line (Northern Areas) should the Commission or the Plebiscite Administrator felt it was necessary for the defence of the area. Part II embodied schedules of withdrawal of the Pakistan troops and th bulk of the Indian forces. Part III contained various general provisions.

In the view of the Commission, the replies of neither India nor Pakistan constituted an “unreserved acceptance” of the proposals.

The Government of India, in its reply, stated that the proposals did not make adequate provisions for the Security of the State and suggested :

1.  “that the agreement of the Government of Pakistan should be obtained now to the disbanding and disarming of these 32 battalions (“Azad Kashmir” forces). The Commission have already agreed to large-scale disbanding and disarming and has informed the Government of Pakistan that this is its objective: it should not, therefore, be difficult, if Pakistan has accepted this objective, to obtain its agreement;”

2.  “the discussion regarding the procedure and phasing of the of the disbanding and disarming of Azad forces should commence immediately after the truce is signed;”

3.  “the phasing of the withdrawal of Indian troops should not be divorced from and should depend on, the progress made with the actual disbanding and disarming of the “Azad Kashmir” forces;”

4.  “the principle that Indian troops should garrison important strategic points in the Northern Areas – to eliminate the danger of “locals” armed by Pakistan indulging in raids into the Valley and in armed interference with the State’s trade with Central Asia – should be accepted.

 

Suggestion for Arbitration

After the stalemate had been reached on the question of disposal of “Azad Kashmir” forces and related questions, the Commission, on August 9, 1949, invited the two Governments to joint meetings to consider implementation of the truce terms. No agreement could, however, be reached on the agenda of the meetings because Pakistan was not willing to discuss the question of disbanding and disarming of the “Azad Kashmir” forces and the administration of the Northern Areas. On August 30, 1949, therefore, the Commission suggested arbitration as a method of solving the differences.

The Government of India, while not opposed to arbitration in principle, said the question of disbanding and disarming the “Azad” forces was no more a matter for arbitration than the complete withdrawal of the Pakistan forces which had illegally entered the State. They emphasized the necessity of creating a peaceful atmosphere in the State as a necessary preliminary to the holding of a free and impartial plebiscite. Such an atmosphere, it was stated, could not be created as long as the “Azad” forces remained in being. Disbanding and disarming of the “Azad” forces was, therefore, not a matter for arbitration, but for affirmative and immediate decision. As a result of this disagreement, the arbitration proposal was dropped.

McNaughton Proposals

On December 17, 1949, the U.N. Commission presented its third interim report to the Security Council. The Council requested its then President, General McNaughton of Canada, to meet informally with the parties concerned and examine the possibility of finding a mutually satisfactory basis for dealing with the questions at issue.

On December 22, 1949, General McNaughton submitted his proposals. They provided for programme of demilitarization, which include the withdrawal of the regular Pakistan forces; the withdrawal of Indian forces not required for purposes of security or for the maintenance of local law and order on the Indian side of the ceasefire line; and the reduction by disbanding and disarming of the armed forces of the State of Jammu and Kashmir on the side and the “Azad” forces on the other. The Northern Areas were also included in this programme of demilitarization; their administration was to be continued by Pakistan authority (the existing local authority) (not the lawful government of Kashmir).

Owen Dixon’s Mission

On March 14, 1950, the Security Council adopted a resolution appointing a single Mediator in Kashmir. The Mediator’s task was to bring about demilitarisation of the State on the basis of principles of the McNaughton proposals or such modifications of those principles as might be mutually agreed to. He was also authorized to make other suggestions which would be “likely to contribute to the expeditious and enduring solution of the dispute.”

The Mediator, Sir Owen Dixon, arrived in the Indian sub-continent on May 27, 1950. After preliminary discussions and study, he invited the Prime Ministers of India and Pakistan to a joint conference in Delhi. The Conference, which met from July 20-24, discussed various proposals for the holding of an overall plebiscite in Kashmir. No agreement could, however, be reached between the two governments over the question of conditions that should govern the plebiscite. Sir Owen, therefore, put forward the plan that, wherever the desires of the inhabitants were known, the territory should be allocated between India and Pakistan, due regard being given to geographical, economic and demographical considerations. But where the desires of the people were uncertain, a plebiscite should be held for ascertaining them. The voting would be confined to that limited area.

India, without entering into any commitment, expressed its willingness to consider a solution on these lines, but Pakistan refused to entertain the proposal. Sir Owen then indicated to India certain conditions he had in mind for a partial plebiscite. The major condition was the transfer of the complete authority and functions of the present Kashmir Government to the Plebiscite Administrator. India rejected it on the ground that it justified aggression and was contrary to the resolution of August 13, 1948, in which the sovereignty of the Jammu & Kashmir Government was recognised over the entire territory of the State, including the area under occupation by Pakistan and “Azad Kashmir” forces.

Report to Security Council

In his report to the Security Council on September 19, 1950, Sir Owen expressed the view that when the frontier of Jammu and Kashmir was crossed by “hostile elements in October 1947” it was contrary to international law” and that when units of the regular Pakistan forces moved into the territory of the State, “that too was inconsistent with international law”. Stating that all means of settling the dispute had been exhausted, the Mediator recommended that India and Pakistan should now be left to negotiate a settlement themselves. The Security Council should, however, press upon India and Pakistan to reduce the military strength of the two Governments holding the ceasefire line to the “normal protection of a peace-time frontier”. As regards the question of plebiscite, Sir Owen said : “If there is any chance of settling the dispute by agreement, it lies in evolving some means of allocating the Valley of Kashmir rather than through an overall plebiscite.”

By using top secret and confidential position papers, aide memoires and memorandums, the writer has put together this narrative which provides a cutting edge perspective of those tumultuous times. Sir Owen Dixon’s report remains seminal in this regard for he articulates very strongly that when the frontier of J&K was crossed by “hostile elements in October 1947” it was contrary to international law” and that when units of the regular Pakistan forces moved into the territory of the state, “that too was inconsistent with international law”. Making the plebiscite infructuous for the contours and boundaries of the original princely state of J&K were changed radically by the raiders due to the land grab aka Pakistan Occupied Kashmir. India has stuck to this position for years in the UN stating that a plebiscite cannot take place, more so because the moral, constitutional and legal validity of the accession cannot be questioned. Finally it has all boiled down to the much coveted Kashmir Valley, which first Jinnah and then Pakistan have obsessed over for 70 years.

@sandeep_bamzai

Columnist: 
Sandeep Bamzai