False facts, false way

Some Indian observers have said that US President Donald Trump’s July 22 offer to mediate on Kashmir has no validity after India abrogated the State’s special status under Article 370. On August 6, Rajya Sabha MP Subramaniam Swamy demanded withdrawal of India’s complaint to the United Nations against Pakistan made on December 31, 1947 by Jawaharlal Nehru without cabinet approval, which Swamy claims was “Illegal”. Swamy says that he “assumed” that “cabinet approval for UN intervention was not taken because Sardar Vallabhai Patel was still alive then and would have blocked it”. This, at best, is distortion of history. It is important to clear the air and have due regard for some historical facts if India is to appropriately navigate this difficult time of change in the political structure of our most sensitive State.

V P Menon, who was Sardar Patel’s most trusted aide and who had obtained Hari Singh’s accession letter on Kashmir on October 26, 1947 has given an eyewitness account how the decision to approach UN was taken. India was still a “Dominion” under the India Independence Act 1947 with a Governor General as the Crown’s representative. We became a sovereign republic only in 1950. Only the Governor General had full powers to decide such policy matters under Sections 5 & 6 read with Section 9. Also, there was an India-Pakistan Joint Defence Council at that time. The last two meetings were held at Lahore (December 8, 1947) and New Delhi (December 22, 1947) under the chairmanship of Mountbatten even during Indo-Pakistan hostilities. Mountbatten did not want a war between two dominions in the British Commonwealth.

Menon, who was Secretary, States Department from June 25, 1947 for dealing with the merger of princely states, says that Patel was given “a free hand” by Mountbatten, who used to chair Defence Committee meetings. Hari Singh’s request on October 24 for Indian army help and all other matters regarding Kashmir were considered by this Defence Committee attended by Nehru and Patel, among others.

After the Lahore meeting of the Joint Defence Council, Mountbatten was convinced that bilateral Indo-Pak parleys would not produce a solution. “He therefore pressed both Gandhiji and Nehru to adopt his original suggestion to invoke the good offices of the United Nations Organisation. Nehru ultimately accepted the suggestion, though some of his colleagues had misgivings about the wisdom of the step.” Menon, who reported to Patel, did not mention any “misgivings” by Patel.

A copy of India’s complaint was personally handed over to Prime Minister Liaqat Ali Khan by Nehru on December 22, 1947 when he came to New Delhi for the Joint Defence Council meeting. Separately, a demarche was also given to stop Pakistani help to the “raiders”. Khan promised to give a reply. Since no reply came, New Delhi formally appealed to UN on December 31, 1947 under Chapter VI of the UN charter (articles 33 to 38) which deals with “disputes” between nations.

Swamy wants the Modi government to withdraw our complaint. Would this give any benefit to India?  Will it stop Pakistan using non-State actors? What reasons could we give? Even if we withdraw, Pakistan can still make a complaint against India and the Security Council could “call upon the parties to settle their disputes by such means” (Article 33), after considering whether “the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security” (Article 34). Would we be able to say, if faced with Pakistan’s complaint, that their cross-border interference does not endanger peace?

Also, why is India always turning down offers of mediation on Kashmir dispute, over which we had lost at least 45,172 lives since 1988? The official reason India gives is that the July 2, 1972 Simla Agreement between Prime Ministers Indira Gandhi and Zulfikar Ali Bhutto after the 1971 War precludes third party mediation.

This is not strictly correct. Clause 1 says that both governments would put an end to conflict and confrontation. The methodology is given in 6 sub-clauses. The first one is following the UN charter while the second clause reads as follows: “That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. (Italics mine). Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations”.

“Bharat Ratna” C.Subramaniam was so exasperated with this stalemate that he wrote a letter on October 2, 1997 to Prime Minister I.K Gujral suggesting use of neutral nations to find a solution. In January 2002 the Vajpayee government went to the extent of denying a stop-over visit to UN Secretary General Kofi Annan on his way from Tokyo after the “Donors Conference” because he had mentioned about a possible role of international community in the Kashmir solution. The present BJP government has practically severed all relationship with Pakistan on the ground that terrorism and talks do not go together.

We need to remember that all major disputes in history were resolved with outside mediation. We did not have any problem in choosing the World Bank to successfully conclude the 1959 Indus Water Agreement with Pakistan which is still standing. Nor did we have any objection in accepting Soviet Union to organize the 1966 Tashkent Agreement with Pakistan. Bitter rivals Israel and Egypt came together for the 1979 Camp David Accord hosted by President Jimmy Carter, thereby bringing lasting peace between them. 

The UN sponsored “Proximity Talks” between US, Soviet Union and the Mujahideen resulted in the Soviet withdrawal from Afghanistan in 1988. Palestinians and Israel came together at Oslo leading to the Rabin-Arafat agreement in 1993. The stalemate between Irish militants and Britain was broken only by US Senator John Mitchell, paving the way the 1998 Good Friday agreement.

(The writer is a former Special Secretary, Cabinet Secretariat)